Birmingham v. Lesan

Virgin, J.

It has already been adjudged that the testator’s widow took a life-estate in the farm of which he died seized, 76 Maine, 482.

And now upon careful consideration of all the terms of the will we have concluded that the devise to Mehan was upon *497 ¡condition. It is very plain that the testator did not intend that he should take an absolute fee by implication in the remainder with a charge upon him personally to support the life-tenant: nor a life-estate in the remainder with a like charge upon the estate devised. McLellan v. Turner, 15 Maine, 438 and cases there cited; 3 Green, Cruise, 283-4 and cases in note; Taft v. Morse, 4 Met. 523 ; Gardner v. Gardner, 3 Mas. 179 , 207; for only what "remains at her death” is devised to him.

Was it a condition precedent or subsequent? As there are no technical words which distinguish them (4 Kent, 125), whether it be one or the other depends upon whether the testator intended that a compliance with the requisition annexed to the estate devised should be a condition of its acquisition, or merely of its retention, 2 Jar. Wills. (K. & T. ed.), 509.

It cannot be deemed -a condition precedent, because Mehan is authorised by the express terms of the will to provide for the life-tenant "from the proceeds of the farm.” And while "proceeds ” may mean " produce ” or " income,” it also signifies "money or other things of value obtained from the sale of property,” Web. Diet. -, and the testator must have intended to use it in the latter sense, inasmuch as the real estate was to go to Mehan, at the widow’s death, "if any remained,” and he could not sell any of it for her support, unless he had at least a title on condition subsequent.

The devise to him, together with the next succeeding provision that in case he failed "to provide for” her "then she is empowered to call on the selectmen,” &c., cannot be considered a conditional limitation, as in Stearns v. Godfrey, 16 Maine, 158 and Brattle Sq. Church v. Grant, 3 Gray, 143 , because the limitation over is too indefinite, no third, person being named. 4 Kent, 127.

Considering the whole will together we are of opinion that the devise to Mehan was upon a condition subsequent. Stark v. Smiley, 25 Maine, 201; Marwick v. Andrews, 25 Maine, 525 ; Thomas v. Record, 47 Maine, 500.

Mehan having failed to perforin the condition, the heirs of the *498 devisor had the right to create a forfeiture by an entry therefor, although there was no clause in the will to that purport. Thomas v. Record, supra; 4 Kent, 123. But no such entry was made before this suit was commenced. And while equity will, under well recognized circumstances, relieve a party from a forfeiture a court of equity does not lend its aid to devest an estate for a breach of a condition subsequent and thereby enforce a forfeiture. 4 Kent, 131; Sto. Eq. § 1319 ; Smith v. Jewett, 40 N. H. 534.

Moreover the title passed to Mehan subject only to be defeated on breach of the condition; and until an entry for the breach, it remained in him as if no condition ever existed. The complainants, therefore, at the commencement of this suit, placed themselves in the attitude of praying for the removal of a cloud from a title which they did not hold, by the cancellation of a mortgage upon a farm of which they had no possession. West v. Schnebley, 54 Ill. 523 ; Sto. Eq. § 705, note 4; Pom. Eq. § 1399, note 4.

But since the filing of their bill, viz. : on June 1, 1885, the plaintiffs made an entry for breach of the condition and they have amended their bill accordingly. In the absence of any statutory provision or general rule of court authorizing it, an original bill cannot be amended by incorporating therein anything which arose subsequent to the commencement of the suit; it can only be done by a supplemental bill. Stafford v. Howlett, 1 Paige, 200 ; Campbell v. Bowne, 5 Paige, 34 ; Downer v. Wilson, 33 Vt. 1 . Moreover, generally, matters which have occurred since the filing of the original bill and which are material to perfect the plaintiff’s case, may be introduced into the record by supplemental bill. Greenleaf v. Queen, 1 Pet. 148 ; Candler v. Pettit, 1 Paige, 168 ; Pinch v. Anthony, 10 Allen, 470 . But in the language of the court in the last named case, "we know of no case that goes so far as to authorize a party who has no cause of action at the time of filing his original bill, to file a supplemental bill in order to maintain his suit upon a cause of action that accrued after the original bill was filed, even though it arose out of the same transaction that was the subject of the original bill.”

*499 Neither does Chan. Kule xxxix authorize this new fact of entry to be brought into the record by way of amendment, inasmuch as the " circumstances of the case are not such as to require a supplemental bill.”

Nor does the last clause of E. S., c. 77, § 11, allow an event which occurred since the filing of the bill to be engrafted therein by amendment or reforming the bill. A statute intended to-make such a radical change in the practice should bo express and plain in its terms.

Our opinion therefore is that a new bill is essential. And now that the complainants are in possession they cannot try the title by writ of entry, but may maintain a proper bill to remove the cloud from it (Davis v. Boston, 129 Mass. 379 ), especially since they have revested the title in themselves by an entry for breach on the part of Mehan.

Bill dismissed with costs.

Peters, C. J., Daneortii, Foster and Haskell, JJ., concurred. Emery, J., concurred in the result, but thought the proper-remedy was under K. S., c. 104, § § 47 and 48.