Coane v. Parmentier

Gibson, C. J.

There is no dispute about principles in this case; the question regards their application to it. The intention to give a fee is clear; but a mere intention, without operative words, whether the devisor were native or alien, would not be enough. This will contains no such words; but it contains a devise, to the devisor’s mother-in-law, of a right to live during her lifetime in the mansion-house, with his widow and children, or, at her option, to receive $200 as an equivalent for it. From whom ? The charge in favour of the mother-in-law, was at the expense of the widow’s comfort and convenience; but the substitute for it was not intended to be in ease of it, but for the accommodation of the mother-in-law. It was intended merely to give her an option; and who was bound to furnish the equivalent ? Certainly the party relieved by it. It was an accessory which followed its principal, the charge on the estate. It certainly was not intended to throw it on the residuary legatees, who had nothing to do with the realty. But would the widow have been personally bound to furnish the equivalent, had the mother-in-law demanded it? Lobach’s case settles that question. An acceptance of land charged with money, creates an implied promise to pay it: Rushton v. Rushton, and the English cases, are to the same effect. As the widow, therefore, was personally liable to pay a sum charged, though contingently, on the premises, she might have been a loser by taking an estate merely for life; and the implication, therefore, is that she should have a fee.

Judgment affirmed.