Winch v. Bean ( 1882 )

"A good and sufficient home at their dwelling-house," with the care "suitable for a woman of her age," was more than lodging, food, and raiment. A house where the plaintiff experienced treatment to which she could not reasonably be required to submit, and to which she cannot reasonably be asked to return, is not the home to which she is entitled. The referee should have further reported that for this reason, and on this ground, he found, as a matter of fact, that the defendants had broken the condition of the deed. But as this is presumptively his meaning, the exception will be overruled unless the defendants obtain an amendatory report showing a different conclusion.

Contracts of this kind frequently and in controversy, and sometimes in litigation. Currier v. Currier, 2 N.H. 76; Hartshorn v. Hubbard, ib. 458; Dearborn v. Dearborn, 9 id. 117; Flanders v. Lamphear, ib. 201; Rhoades v. Parker, 10 id. 83; Holmes v. Fisher, 13 id. 9; Eastman v. Batchelder, 36 id. 141; Barker v. Cobb, ib. 344; Whitton v. Whitton, 38 id. 127; Center v. Center, ib. 318, Bethlehem v. Annis, 40 id. 34; Wilder v. Whittemore, 15 Mass. 262; Lanfair v. Lanfair, 18 Pick. 299; Thayer v. Richards, 19 id. 398; Fiske v. Fiske, 20 id. 499; Wales v. Mellen, 1 Gray 512; Gibson v. Taylor, 6 Gray 310; Robinson v. Robinson, 9 id. 447; Marsh v. Austin, 1 Allen 235; Gilson v. Gilson, 2 id. 115; Pettee v. Case, ib. 546; Clinton v. Fly, 10 Me. 292; Hoyt v. Bradley, 27 id. 242; Allen v. Parker, ib. 531; Brown, v. Leach, 35 id. 39; Norton v. Webb, ib. 218; Lamb v. Foss, 21 id. 240; Philbrook v. Burgess, 52 id. 271; Sibley v. Rider, 54 id. 463; Bryant v. Erskine, 55 id. 153; Fales v. Hemenway, 64 id. 373; Austin v. Austin, 9 Vt. 420; Crane v. Stickles, 15 id. 252; Briggs v. Beach, 18 id. 115; Olcott v. Dunklee 16 id. 478; Dunklee v. Adams, 20 id. 415; Frizzle v. Dearth, 28 id. 787; Henry v. Tupper, 29 id. 358; Ferguson v. Ferguson, 2 N.Y. 360; Chase v. Peck, 21 id. 581; Ferguson v. Kimball, 3 Barb. Ch. 616; Daniels v. Eisenloed, 10 Mich. 454; Hawkins v. Clermont, 15 id. 511; Tucker v. Tucker, 24 id. 426; Smith v. Smith, 34 Wis. 320; Soper v. Guernsey, 71 Pa. St. 219. They are often improvidently made on both sides, and their general policy has been doubted. 71 Pa. St. 219; 34 Wis. 320. But it is not always easy for aged people to make contractual or testamentary arrangements that will secure the desired home satisfactorily to both parties. When such contracts are made, equity may sometimes relieve from the forfeiture (Bethlehem v. Annis,40 N.H. 34), but their expediency is not a judicial question.

SMITH, J., did not sit: the others concurred.