Nancy Catharine Getman, Appellant, v. Oliver Getman, Respondent

Nancy Catharine Getman, Appellant, v. Oliver Getman, Respondent. Third Department, June 27, 1912. Decedent’s estate — conditional devise. The devise of a farm to the defendant was charged with the board -of the plaintiff and her right to occupy a specified portion of the house and the payment of a sum named. Held, that although the acceptance of the devise obligated the defendant to perform its conditions, he was not bound to do so unless the plaintiff wished him to, and she having voluntarily left the farm the defendant cannot be placed in default until a proper demand is made that he allow the plaintiff to reoccupy her rooms and that he furnish board to her. The defendant was not obliged to reside personally on the farm in order to furnish board for the plaintiff, nor to furnish it elsewhere if he was ready to furnish it at the farm. Appeal by the plaintiff, Nancy Catharine Getman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Fulton on the 20th day of November, 1911, upon the decision of the court, after a trial at the Fulton Special Term. Borden D. Smith, for the appellant. H. M. Eldridge, for the respondent. [MAJORITY — Per Curiam:] Per Curiam: The controversy between the parties as it then existed, was properly disposed of by the learned trial court. The plaintiff, however, has some rights under the will of .her father which the defendant is bound to observe, and it is proper for us to define them as the plaintiff requests. The devise of the farm to the defendant was charged with the board of the plaintiff and the right to occupy the specified portion of the house and the payment of the sum named. The defendant accepted the devise and thereby bound himself to perform its conditions. He need not perform them, however, unless the plaintiff wished him to, and she having voluntarily left the farm and chosen to reside elsewhere, the defendant could not be put in default until a proper demand was made that he allow the plaintiff to reoccupy her rooms in the house and that he furnish board to her. The notice of January, 1911, was not sufficient for that purpose. The defendant appears to have recognized his obligation to do these things, for in his lease of the farm he reserved the rooms for plaintiff’s occupancy and provided for her board. There is no proof that the tenant was not a suitable person for the plaintiff to board and live with, and the defendant was not obliged personally to reside on the farm in order to furnish boárd for the plaintiff, nor to furnish it elsewhere if he was ready to furnish it at the farm. It is necessary that the plaintiff make a new demand in order to put the defendant in default in case of refusal, and, therefore, we cannot modify the present judgment as suggested, but must affirm it, with costs. All concurred. Judgment unanimously affirmed, with costs.