
    Abbie Lasher, Respondent, v. Thomas F. McDermott, as Executor, etc., of Rose Quest, Deceased, Appellant, Impleaded with James Quest and Others, Defendants.
    Third Department,
    May 3, 1911.
    Contract — agreement to convey lands in consideration of services rendered promisor—breach, of agreement by devise to third parties— specific performance — laches of promisee — equity.
    Where a person, otherwise entitled to a decree of specific performance of an agreement to convey lands in consideration of care rendered to the owner during her lifetime, makes no claim upon her executor for more than six months after the probate of her will devising the lands to other persons, and the devisees have, conveyed the lands to bona fide purchasers, equity cannot decree a specific performance, but as a .substitute therefor will require the devisee to refund the consideration received for the conveyance and, .if there be a balance still remaining due the promisee, it should be adjusted upon equitable principles.
    Appeal by „the defendant, Thomas F. McDermott, as executor, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 1st day of September,. 1910, as amended, upon the decision of the court rendered after at trial a the Rensselaer Trial Term, the parties having stipulated at the close of the-case that there was no question to he submitted to the jury for determination.
    
      Countryman, Nellis & Dubois [A. J, Nellis of counsel], for the appellant.
    
      Charles B. Templeton, for the respondent.
   Kellogg, J.:

The 'finding that Rose Quest agreed to give to the plaintiff the house and lot in which she lived, and the furniture therein, if she and her family would give up then home and move into her house and take care of her during her lifetime, and that the plaintiff entered upon the performance of said agreement and was performing the same until prevented by the deceased, 'is well sustained by the evidence. The conclusion that it would be a‘proper case to decree a specific performance and put the ownership of the property in the plaintiff if the same had not been transferred to. a bona fide holder is satisfactory. The devisee, James Quest, having conveyed the property to a bona fide holder before action brought, the court decreed a substituted performance by requiring the executor to pay the value of the house and lot so conveyed to the plaintiff. The substituted performance provided for is inequitable, as it' leaves in James’ hands the moneys which he received'from the house and lot and takes all the interests which the .other parties have under the will to make good to the plaintiff the loss which she has sustained. If the defendant James Quest, the devisee, had not transferred the house and lot, clearly in this action the ownership would be declared in the plaintiff. After Rose Quest prevented the plaintiff from performing the contract, November 27, 1905, she lived twelve days. The will was probated promptly after her death, and James Quest, the devisee, entered into possession of the property. The house was burned; he collected the "insurance and rebuilt, it and sold it ■Time twenty-fifth following. It thus appears that if the plaintiff had brought this action at any time before June twenty-fifth, upon the facts found she would have been awarded a specific performance of the contract. By sleeping upon her rights for six months, making, no claim upon the executor or the devisee, she has enabled the latter to transfer the property to a bona fide holder, and, therefore, she. cannot get the house and lot. ■

It is evident that the testatrix was not on friendly terms with her relatives, and that as she was approaching- death she was led to a reconciliation, and such reconciliation caused the making of the codicil and the termination of the plaintiff’s employment. She left an estate of about $2,600 in personal property, three or four lots worth $600 each, the house and lot in question worth $1,800 and the furniture therein worth about $54.25. There remains in the hands of the executor $2,000 of personal property and the lots. The will and codicil gives legacies of $850 to relatives and friends outside of the residuary legatees, and to Margaret Lorey, one of the cousins, a residuary legatee, she gives a legacy of $500. James Quest is to have one-half of the residuary estate; the other half is to be divided between Margaret Lorey and three other cousins. If the house and lot, in a court of equity, is deemed the property of the plaintiff, then James Quest has received the proceeds of the plaintiff’s property and should be required to make it good. A substituted performance of thé contract would seem in fairness to require that James Quest should first refund .the amount received from the real estate,- and then if there is a balance still remaining due the plaintiff it should be adjusted on equitable principles as the facts may appear upon the trial. The judgment should, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.

All concurred; Smith, P. J., concurring in the result in a memorandum.

Smith, P. J. (concurring):

I concur in the result reached by Mr. Justice Kellogg upon the ground that this action was in equity against James Quest and the executor. As against the executor, the action simply related to the personal property, and an action ordinarily will not lie for specific performance of a contract to transfer personal property. With the real estate found in the hands of a bona fide holder, if substituted damages may be allowed, those substituted damages must be against the party from whoni the plaintiff might otherwise be entitled to have specific performance for the conveyance of the land. The plaintiff has in fact brought his action for specific performance of a contract and recovered a legal judgment against the executor for a breach of the contract, and this in the face of proper objection upon the part of the executor’s counsel. .

I, therefore, vote for reversal and a new trial.-

Judgment reversed and new trial granted, with costs to appellant to abide event;  