Madigan v. Burns , 67 N.H. 319 ( 1892 )

The defendant Nancy claims that the third clause of the will is a bar to the plaintiff's right of partition. Whether the language of this clause should be construed as advisory or obligatory — as a mere request (Merrill v. Emery, 10 Pick. 507, 512) — or as a condition, we need not inquire. Assuming, as being the view most favorable to the defendants, that the clause constitutes a condition the breach of which would cause a forfeiture of the estate devised, the heir-at-law of the testatrix can alone take advantage of or enforce the forfeiture. The plaintiff is her sole heir. A forfeiture of the estate given by the will would leave it in him as heir. The right of entry for condition broken and the estate are united in him. He cannot enter upon himself. The condition, so far as his estate is concerned, is extinguished by operation of law. Newkerk v. Newkerk, 2 Cai. 345, 354. If Nancy and her estate remain bound by the condition, partition enforced upon her by law will not be a breach. Doe v. Powell, 5 B. and C. 308. As the plaintiff alone has the power to enforce, so he may release, the condition, and his prosecution of this petition to judgment is a release.

Judgment for partition.

All concurred.