Majority
p. 571Gaines v. Winthrop and others. December 9. 1835.
Headnote
A contract to sell lands is a revocation, pro tanto¡ of a prior will: but the latter remains in force as to the legal estate ; the title passes to the devisee ; and he will be a trustee for the purchaser and compelled to convey.Bill for a specific performance of the sale of lots of ground. Egerton Leigh Winthrop was seized of the property; and while he was ill, his brother, as his agent, signed an agreement for the sale of the lots to the complainant, Marquis D. L. Gaines. Prior to this time, Egerton Leigh Winthrop had made his will. He afterwards died. The question was, as to where the complainant was to look for title ?
Mr. J. P. Hall, for the complainant.
Mr. Hamilton Fish, for the executors and devisees of Egerton Leigh Winthrop.
The contract for sale is sufficiently proved ; and enough was done to render it binding upon the testator, and the complainant is entitled to a specific performance of the same.
But the question is : where shall he look for title—who is to execute the proper conveyance ? The rule is that a contract to sell is a revocation in equity pro tanto of a prior will. Still, as to the legal estate, the will remains in force ;
p. 572
the title passes to the devisee and he will be considered a trustee for the purchaser and compelled to convey in fulfilment of the contract: 1 Preston on Abs. 67 ; 3 ib. 260 ; 1 Sugden on Vendors, 183. (9 ed.) The devisees in this case are the persons to execute a deed to the complainant.
Decree accordingly.