Nanny v. Fancher

Headnote

Specific pebfokmajstce—Contbact to sell laud.

Plaintiff’s wife and the appellants conveyed certain land to defendant Amzi Fancher, by deed, excepting their interest in the dower of the widow of Henry Fancher, their father, which deed contained an agreement to convey the same at the death of said widow at a certain price per acre. Plaintiff’s wife died, leaving a will by which she gave, him all her personal property and all she had in expectancy from her father’s estate and named him as executor. Beld, a case where equity would decree specific performance of the agreement, all persons interested being before the court.

Appeal from order and interlocutory j udgment overruling the demurrer of defendant, Mary A. Fancher, and a separate demurrer of defendants Sarah A. Wilson and others to plaintiff’s complaint.

The complaint alleges in substance: That Juliette Nanny, de

ceased, in her lifetime, and" the defendants, Mary A. Fancher, Sarah A. Wilson, Susan Fancher and Rensselaer Fancher, en-' tered into a contract with the defendant Amzi L. Fancher, in October, 1869, for the sale of a farm in the town of Warwick, Orange county, N. Y.; that in pursuance of said contract they conveyed to him by deed in March, 1870, the equal undivided two-thirds of the farm, and that by the contract and deed they agreed to convey the ‘remaining one-third upon the death of their mother, Maria Fancher; that thereafter Susan Fancher married Charles Thompson, and died intestate, without .issue, and that Charles Thompson was duly appointed administrator, etc. ; that after that, and prior to Maria Fancher’s death, Juliette Nanny died, leaving a last will, whereby she “ bequeathed all her personal property of whatsoever name or kind she was possessed of, and also all "she had in expectancy from her deceased father’s estate, to her husband, Oliver T. Nanny,” and named her husband the executor of her will; that this will was duly admitted to probate ; that Maria Fancher has died, and that plaintiff is the husband of said Juliette Nanny, deceased. The prayer for relief is, among other things: “First: That it maybe determined that plaintiff is the owner of all the rights and interests which the said Juliette Nanny had at the time of her death in the real estate described in said deed, or in the proceeds of the sale thereof; Second, That on the death of the widow the defendant Amzi Fancher became entitled to a further deed of one-third of the property; and Third, That a specific performance of the foregoing contract may be decreed. ”

The demurrers are put upon several grounds:

First. That plaintiff should have brought suit in his representative capacity and not personally.

Second. That all of the vendors should have been parties plaintiff ; and

Third. That the complaint does not state facts sufficient to constitute a cause of action.

The opinion at special term was as follows:

Barnard, J.—The legal effect of the agreement seems to be that the one-third of the farm was not conveyed by the deed. The agreement excepted the dower right and the deed was also accompanied by an agreement that the several heirs would sell the same to the “ party of the second part,” the grantee, “ on the death of the said vendor.”

This one undivided third in the farm was reserved as a security to the widow during her life, with remainder to the heirs. The plaintiff is entitled to his deceased wife’s share in this land. The will devises all “ expectancy ” from her father’s estate, and if I am right in the conclusion that the undivided third was reserved, it was an “expectancy.” The plaintiff is therefore a proper plaintiff. He owns title and sets up the evidence of it, which he was not strictly bound to do. The purchaser is entitled to a complete title, that is to a deed for all the interests in this one-third. . The action is therefore well brought, and the demurrer to the complaint is overruled, with costs.