Wilson v. Wilson , 38 Me. 18 ( 1854 )

Rice, J.

— On the eighth day of October, A. D. 1835, Ephraim "Wilson conveyed certain real estate to William Wilson by deed of geiieral warranty, subject however, to the following conditions, to wit; “that the said William Wilson is to maintain and support in a comfortable and •convenient manner the said Ephraim Wilson together with his wife Eunice Wilson, also Ephraim Wilson, jr., and Polly Wilson, children of the said Ephraim, during their natural lives, then this deed to remain in full force and virtue, •otherwise to be null and void.”

The case finds that Ephraim Wilson, jr., and Polly Wil■son, mentioned in the condition of the deed from Ephraim Wilson to William Wilson, had been consigned to the •charge of the defendant for support and maintenance, by .the grantee in the deed of Ephraim Wilson, with the con-sent of Polly Wilson in writing, and that the defendant had employed one Quimby and others, at different times, to take care of Ephraim.

It may be inferred, though it is not so expressly stated in the case, that Ephraim and his wife have deceased, and that William has conveyed the estate to the defendant.

The Court was requested to instruct the jury, or to rule •that the trust charged upon the grantee in Ephraim Wilson’s •deed, was a personal one, and that he had no authority do transfer the care and support of Ephraim .and Polly to other parties, and himself to leave them to be cared for by strangers. This request was refused.

The condition in the deed of Ephraim, to William, was designed to secure the support of Ephraim, his wife and two children. There does not appear to have been any personal obligation on the part of William to provide for the support of the parties mentioned in the condition of the deed from Ephraim. They were to be supported in a comfortable and convenient manner, or the estate was to be forfeited. But there was no place specified at which the support was to be furnished, nor is there any specific provision how they should be supported, further than that it should be done in a “ comfortable and convenient manner.” Such support could be furnished «by other parties as well as by William. There is no language in the deed, nor can an inference be drawn from the situation of the parties as disclosed by the facts in the case, which would seem to render it necessary that the “ support” provided for in the condition of the deed should only be furnished by William under his personal superintendence. Such does not appear to have been the intention of Ephraim Wilson, the original grantor. Simonds v. Simonds, 3 Met. 558.

With respect to the persons who may perform a condition, it is a general rule that every one who has an interest in the condition, or in the lands to which it relates, may perform it. As if a feoffee, upon condition to pay at Michaelmas twenty pounds, enfeoffs another person before that time, the second feoffee may perform the condition. Cruise’s Dig., Greenl. Ed. vol. 2, c. 2, § 6.

William Wilson, being under no personal liability to support Ephraim, jr., and Polly, and being only liable to the defendant on his covenants, was, after being released by the defendant, a competent witness for him. No error is perceived in the ruling. Exceptions overruled and Judgment on the verdict.

Sheplet, C. J., and Appleton and Cutting, J. J., concurred.