
    Mary T. Gail, Respondent, v. Adelbert D. Gail, Appellant.
    Fourth Department,
    July 7, 1908.
    Contract — rule of construction — agreement to convey lands in consideration of support — condition precedent to action—waiver.
    It isa primary rule in construing contracts that the meaning and effect depends upon the intention of , the parties as therein expressed.
    A contract between a widow and her son whereby she agreed -to “ release and .quitclaim * * her dower and thirdsdn all of the real property owned” by her late husband and to “ execute such papers as may be necessary to effectuate that purpose ” in consideration of certain payments by the son tp be made in monthly installments should be construed to .mean that she.was to convey her “ thirds” in lands owned by her husband in the State of California|in which jurisdiction the widow takes thirds in. all her husband’s property, dower not being recognized.
    As the clause in question related solely to the real property owned by the decedent, the disposition of his personal property being completely provided for in other parts of the contract) the words “ thirds ” cannot be construed to mean the widow’s interest in-the personal property,, for then the word "would "be meaningless.
    A conveyance by the; widow of her interest in the foreign -real estate pursuant to the terms of the contract is a -condition precedent to an action by her ^ agains't the son to recover the sums he agreed to pay.
    
      /Where in such action the allegation of full performance by the plaintiff is denied by the answer, the plaintiff is bound to establish it.
    Whether mutual and reciprocal agreements are dependent or independent must be determined by the order of time in which by the terms and meaning of the contra'ct their performance is required. If it appear that their performance is to be concurrent, then they are dependent; if performance of the whole or a part of the agreement of one party is to precede in time the performance by the other party of that part of the contract which the former seeks to enforce, then the right of the former to enforce performance of the contract as against the latter is dependent upon his prior performance or tender of performance.
    Under the contract aforesaid, the widow was required to convey within a reasonable time after the execution of the contract, or within a reasonable time after ■ demand for performance. Hence,, when she has refused to convey her interest. in the California lands after the payment of certain installments by the son, she cannot insist, upon further performance on his part without fulfilling her obligation to convey.
    I^he son by paying certain monthly installments'without requiring his mother to convey did not waive his right to insist on a conveyance as a condition, precedent to further payment, where at all times he insisted that he was entitled to a transfer.
    Appeal by the defendant, AdeTbert D; Gail, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of' Erie on the 6tli day of February, 1908, upon the decisión of the court, rendered after a trial at the Erie Special Term, reversing a judgment of the Municipal Court of the city of Buffalo in favor of the defendant, rendered on the 7th day of December, 1907, and granting a new trial.
    
      August Becker, for the appellant.
    
      A. G. Bartholomew, for the respondent.
   Robson, J.:

The contract upon which plaintiff bases her cause of action was made by plaintiff with her two sons shortly after the death of her husband, John H. Gail, for the purpose, among other things, of adjusting the rights to, and making division of, the ¡personal property of which her. husband at his death was the owner, and the release to the sons of plaintiff’s interest in the real estate of deceased; she on her part to receive from the sons for her future support an agreed amount to be paid monthly. The defendant and his brother Harry M. Gail are the only next of kin and heirs at law of John H. Gail, the deceased. He.was at his death the owner of a considerable amount of personal property and also of real estate in the States of Hew York and California. The contract, to which we have referred, ■ provided fully as to the disposition of the personal property, and each of the sons agreed thereby to pay to plaintiff the sum of fifty ■ dollars each month. commencing June-6, 1904, and continuing thereafter so long as plaintiff should choose to occupy a certain house described- in the contract. An option was also given her to surrender this house and take, possession .of other premises,, when an apartment house should have- been built thereon ;by the sons in accordance-with the terms of the contract; in which event it was evidently considered that the rents plaintiff would receive from the apartment house would take the place of the monthly payments, which were to- cease if she surrendered her first abode and took the apartment house. .-She has continued to occupy the first house, and has received froto defendant monthly installments paid by him, as-the contract provided, from June 6,1904, to December, 1906. Since .the latter date he has made, no payments, and this action, is brought to recover of him nine monthly installments accruing thereafter* which plaintiff alleges he now owes. There is practically no dispute- as to the facts in the case-. The making of • the contract is admitted, and that the monthly installments for the nine months preceding the commencement of the action have not been paid defendant also admits. He claims, however; that under the.terms of the contract he is under no-legal obligation to pay these installménts until plaintiff complies fully with the terms ¿f the contract on her part to be performed. Plaintiff’s position.is that defendant’s agreement to make to her the monthly payments is an independent contract, and her right to enforce its jaro visions does not depend upon her fulfillment for defendant’s benefitof the .stipulations in the contract on-her part to be performed. What the contract is in this, case appears necessarily-in the written instrument, itself. Determination, of its meaning and effect depends upon the intention of the parties thereto, which they have therein expressed, when that -intention shall have been ascertained. This has been so often authoritatively asserted . as a-primary and- controlling- rtile of construction of contracts that citation of authorities would be simply a repetition- of instances in which the rule has been applied and recognized as axiomatic. What-' ever apparent divergence in or contradictory application of this rule may appear in the decision of individual cases is not due to a failure to recognize this rule as universally applicable. The difference in decision was due only to the results obtained by an effort to apply the recognized rule to the particular case. The case now before us presents in the decision of the Municipal Court and of the Special Term on appeal another instance of the directly opposite conclusions at which different courts will arrive in applying this recognized rule to the interpretation of the same contract, and in each instance the conclusion of the court is supported by a well-considered opinion. (See 57 Misc. Rep. 545.)

The first question presented for our determination is what intention have the parties to this contract expressed in defining and specifying the interest in decedent’s real estate belonging to plaintiff which she agreed to convey to the sons % The expression of this intention is found in the 10th clause of the contract which reads as follows:

TzntJh. The party of the first part shall release and quit claim to the parties of the second and third part her dower and thirds in all of the real property owned by the late John H. Gail at the time of his death, and she shall execute such papers as may be necessary to effectuate that purpose.”

It appears that the real estate in California was held and owned by John H. Gail at the time of his death as his separate estate. By the laws of that State plaintiff, as the widow of deceased on his death intestate, succeeded to the title to a one-third interest in this real estate, he having left two children surviving him. Defendant claims that plaintiff’s agreement, expressed in- this 10th article of the contract above quoted, was to convey to him and his brother her interest in the California lands as well as her dower right in the local real estate, and he, having succeeded to the interest of his brother in this part of the contract, should have conveyance to him of this interest before plaintiff can rightfully claim further payments under his agreement to pay to her the monthly sums. Plaintiff on the other hand insists that the expression “ dower and thirds in all of the real property,” etc., means no more than would be expressed by the single word “ dower; ” and, as a right to an allotment of dower is not recognized by California law, she has1 not agreed to convey any interest whatever in the California lands. One ground upon which she seeks to support this position' is that the word-“ dower.” designates a widow’s interest in her deceased husband’s real estate, as fíxéd by-the laws of States recognizing that right, and'“thirds” refers only to the widow’s interest or share in the personal property, left by the husband: This meaning of the term “ thirds ” has been ■ recognized and applied when it has been used together with the word “ dower ” in connection 'with, or affecting, the disposition of both, real and personal property. But as was said in Druce v. Denison (6 Ves. 385): “The. word ‘thirds’ is never used accurately. It is a sort of expression in common parlance descriptive of the interest upon an intestacy.” It might,' therefore, be used to indicate any interest in either real or personal property, to which the widow succeeded on the death of her husband, without doing violence to the ordinary. and accepted use of the . term.' It is clear in the present case that “ thirds ” is not intended tó refer to plaintiff’s interest in the personal property, for the provision of the .contract where it is used relates only to the real estate of the .deceased,-and the disposition of his personal property "is completely provided' for in other parts of the contract.- Plaintiff' also urges that “ thirds ” as here used' means exactly the same as ' “ dower ” with Which it is associated. It will be observed that it is plaintiff’s “ dower and thirds. in all of the real property owned by ” deceased that she agrees to “ release- and quit-claim,” To give to- this clause' of the contract the meaning for which plaintiff now contends would be to hold that it is as if the words “and thirds ” had been omitted. ■ Words used in a contract are. not to be dismissed as meaningless, unless they clearly, do not serve in the expression of the intention of the parties as disclosed by the ■ contract. (Buffalo East Side R. R. Co. v. Buffalo Street R. R. Co., 111 N. Y. 132, 139; Williams v. Gridley, 110 App. Div. 525, 527.) There is no evidence Before us in the record that the- plaintiff did not have full "knowledge that deceased at his death owned real estate in California as well as in this State. We must, therefore, assume that she did know that fact, and that the expression “ all of the real property owned by ” deceased, her dower and thirds in which she agreed to release and quitclaim, was understood by the parties to the contract as including and that it did in fact include the California as well as the blew York real estate. The term “ thirds ” was apt to designate the actual interest in the several parcels of California real estate to which plaintiff succeeded on the death of her husband, and we hold that as used in the contract it did refer to that interest which she was to convey according to the contract. (Passinger v. Thorburn, 34 N. Y. 634, 641.)

bTeither can we at present yield assent to the further claim of plaintiff that, even if she is bound by her agreement to convey to defendant her interest in the California real estate, yet her right to recover of defendant under the agreement for monthly payments to her is not dependent upon her performance of her part of the agreement. It may be incidentally observed that in her complaint she alleges full performance of the contract on her part; and we are of the opinion that this allegation of her complaint was properly included therein as an allegation of fact to be established in proving her cause of action. That she could not have established this fact we have already concluded. But whether or not this' was a necessary allegation to be pleaded in her complaint, and, if controverted by the answer, established by proof on the trial, we must hold that, the issue having been tendered by the answer, as it clearly is in this case" that plaintiff has not completed her agreement, upon which, as is further claimed in defendant’s answer, her right to insist on the performance by defendant of his part of the agreement by paying her the monthly sum which he has agreed ■ to pay, depends, it was incumbent upon her to show such performance of the agreement on her part. It is said in Ewing v. Wightman (167 N. Y. 107,113) that the rule to be applied in the construction of such contracts, as stated in Bank of Columbia v. Hagner (1 Pet. [26 U. S.] 455, 464), is firmly settled in our jurisprudence. This rule is that “ in contracts of this description the undertakings of the respective parties are always considered dependent, unless a contrary intention clearly appears. A different construction would in many cases lead' to the greatest injustice and a purchaser might have payment of the consideration money enforced upon him, and yet be disabled from procuring the property for which he paid it.” It is also true that whether or hot the mutual and reciprocal agreements of parties .to a- contract are dependent or independent is determined by the order of timé in which by the terms and meaning of the contract their performance is required. (Grant v. Johnson, 5 N. Y. 217; Glenn v. Rossler, 156 id. 161, 167.) If it appears that their performance is to be concurrent,.then they are dependent. If the performance of the whole or a part of the agreement of One party to the contract is to precede in time the performance by the other party of that part of the contract which the' former seeks to enforce, then the right of the former to enforce as against the latter performance of the contract is dependent upon his prior performance of his part of the contract or tender thereof. (Grant v. Johnson, supra.)

The agreement now- before us provides that' the payment by defendant to the plaintiff of the monthly installments referred to therein shall be secured by a mortgage given by defendant upon a part of the real estate as to which plaintiff agreed to release' her dower. This mortgage has been given.' We think the execution of this mortgage, which in effect secured to plaintiff payment of the purchase price of the interests in real estate which plaintiff by the' 10th clause of the contract agreed, to convey to defendant,' was intended by the parties to- be concurrent with the -performance -by plaintiff of her part of the agreement embodied in that clause. If this be true, then, she having accepted the mortgage security, .her right to enforce the monthly payments thereby secured is dependent upon her transferring, as she has agreed, the interests in real estate to secure the purchase price of which she had accepted the mortgage. But whether this be the true construction of the contract or not, it is certain that the transfer of plaintiff’s interest must be made by her within a reasonable time after the execution of the contract, or certainly within a reasonable time after demand by defendant. It appears that she has already' released as the contract provides her- dower' interest in the Hew York real estate, bpt has continuously refused to comply with defendant’s demands, made many times before he ceased paying the monthly installments, that she convey to him. her interest in the California property. . The time at which she was to comply with and perform her part of the agreement had, therefore, arrived before defendant’s default in his payments to her of which she now complains. Her right to insist on further performance by defendant of his part of the agreement was dependent, therefore, on her doing as she had agreed,

It is also urged that defendant by paying the monthly installments, as he did, without requiring of plaintiff the transfer of her interest in the California real estate, as well as in that in Hew York, operated as a waiver of his right afterwards to insist on such transfer as a condition of further payments. It may be that it was such waiver as to each payment actually made by him; but to hold that it also operated as a waiver of this right as to all future payments would result in manifest injustice to him, in appearing that he at all times insisted that lie was entitled to a transfer of plaintiff’s interest in all the real estate. A waiver as to future payments by defendant cannot be constructed from facts like these.

All concurred.

Judgment of Special Term reversed and judgment of the Municipal Court affirmed, with costs in this court and the Special Term to the appellant.^

CASES REPORTED WITH BRIEF SYLLABI AND DECISIONS HANDED DOWN WITHOUT OPINION. 
      
      See Cal. Civ. Code (1903), §§ 1383-1403, as amd.—[Ree.
     
      
       See Cal. Civ. Code. (1903), § 173.—[Rep,
     