
    Ellen Barker vs. Richard Hundley, et al.
    Wills — Determinadle Life Estate.
    A will provided that B. should have an estate for life in the lands devised, determinable at the pleasure of B., and that N. was to have a home with B., on the land thus devised, as long as B. retained possession, and further directs that if B. should wish at any time to give up the premises, said lands should he sold, and the proceeds divided among the beneficiaries named. Held, to constitute a determinable estate by the voluntary surrender of same by B., but annexed no forfeiture by a refusal on her part to permit 1ST. to reside with her.
    Same.
    Upon application by hi. for a residence with B. and a refusal by B. to permit such residence, an action by N. could be maintained.
    Same — Pleading.
    To sustain a petition therein it must allege a demand by the plaintiff to enter upon the premises and a refusal by the defendant to permit same.
    APPEAL PROM PAYETTE CIRCUIT 'COURT.
    January 8 1870.
   Opinion op the Court by

Judge JPeters :

Under tbe will of Catharine Barker appellant took an estate for life in tbe bouse and premises constituting tbe residence of testatrix at tbe publication of ber will, determinable at tbe pleasure of appellant, and while she provided that ber brother J. Naylor, bis two daughters, and Hundley, were to have homes with tbe devisee of tbe estate for life as long as she retained' possession of tbe premises, if they desired it, there is nothing in tbe language of tbe will indicating an intention on tbe part of testatrix that tbe enjoyment of tbe estate devised to appellant should depend upon her consenting to permit tbe persons named to make their homes with her, and the propriety of that construction is repelled by the sentence immediately following in the will, which directs that if Ellen Barker should wish at any time to give up the premises, that they shall be sold, and the proceeds divided among the beneficiaries named, clearly making the estate determinable by a voluntary surrender of it by appellant, but annexed no forfeiture to the devise by a refusal on her part to permit Naylor and others to reside with her.

Huston, for appellant.

Johnston & Johnston, W. G. P. Breckinridge, for appellees.

If these beneficiaries had desired a residence with appellant and had notified her of that desire, and she had refused to permit them a co-habitance there, they would have had a good cause of action against her for such refusal; hut before an action could have been maintained against her, a demand to enter, and a refusal on her part, must have been alleged.

Furthermore, as to Hundley the evidence shows that he was instrumental in procuring- the property to be rented and acted as agent for appellant in making the lease to Stepp; he is by his own acts therefore equitably estopped from asserting any claim to a forfeiture of the estate.

Wherefore, the judgment is reversed, and the cause is remanded, with directions to dismiss the petition so far as it seeks a forfeiture of the estate of appellant in the house and grounds attached, and for further proceedings consistent herewith.

Affirmed on cross appeal.  