Pattee v. Boynton , 73 N.H. 525 ( 1906 )

The only question of law raised by the plaintiff's exception is whether the death of Mrs. Boynton in the lifetime of Mrs. McLeod constituted a breach of the condition of a mortgage which provided that if Mrs. Boynton, her heirs, executors, and administrators, should comply with the condition of a bond to support Mrs. McLeod for life, the conveyance should be void. The plaintiff contends that this agreement so far partakes of the nature of a contract made with reference to the continued existence of a particular person or thing (Clarksville Land Co. v. Harriman, 68 N.H. 374; Eliot Bank v. Beal, 141 Mass. 566, 570; Taylor v. Caldwell, 3 B. S. 826, 839) that the death of Mrs. Boynton terminated it. It is clear, however, that his contention is not well founded. If contracts of this kind are so far personal that the one who is to furnish the home cannot, when the contract is silent in respect to the matter, assign his interest in it to a stranger without the consent of the other party (Flanders v. Lamphear, 9 N.H. 201; Holmes v. Fisher, 13 N.H. 9; Eastman v. Batchelder, 36 N.H. 141; Bethlehem v. Annis, 40 N.H. 34; Gotham v. Gotham, 55 N.H. 440; Winch v. Bean,62 N.H. 427), still, when the contract provides for such a contingency it is both the right and duty of the administrator to perform it; for in such cases, upon the death of the contractor the duty of providing the home devolves upon his administrator and is a charge upon the estate. Holmes v. Fisher, 13 N.H. 9, 12; Eastman v. Batchelder, 36 N.H. 141, 150; Bethlehem v. Annis, 40 N.H. 34, 42. The death of Mrs. Boynton in the lifetime of Mrs. McLeod did not, therefore, constitute a default in the condition of the mortgage.

Exception overruled.

All concurred.