
    (85 Hun, 464.)
    SOPER v. HALSEY.
    (Supreme Court, General Term, Fifth Department.
    April 12, 1895.)
    1. Marriage— What Constitutes.
    An agreement between a man and woman that they will live together does not constitute a marriage, where there was no agreement that they would live together as husband and wife.
    2. Wills—Construction.
    A will provided that testator’s son should have “a home” for life on the farm which testator devised to his daughter. The son had always lived on the farm with his father, and assisted in working it, for which he received, besides his board, $200. Held, that it was testator’s intention that the son should render such services on the farm as would be an appropriate compensation for his home.
    3. Same—Election to Take under.
    Where a will provides that testator’s son “shall have a home on my farm where I now reside during his natural life, if he shall so elect,” the son is entitled to the benefit whenever he elects to demand it, and does not forfeit his right by failing to indicate that he elects to claim it.
    Appeal from special term, Seneca county.
    Action by Ellen Soper against Elmer Halsey, impleaded, etc. There was a judgment in favor of plaintiff, and defendant appeals. Modified.
    Argued before DWIGHT, P. J., and LEWIS and BRADLEY, JJ.
    J. N. Hammond, for appellant.
    F. L. Manning, for respondent.
   DWIGHT, P. J.

The .action was to obtain a judicial construction of the following clause in the will of Luther H. Halsey, deceased, viz.:

“And I further will and direct that my said son Elmer shall have a home on my farm where I now reside during his natural life, if he shall so elect, and shall remain unmarried, but he shall have no right to bring a wife on said farm in case of his marriage.”

The testator made-his will in 1881, and died in 1883, at the age of 75 years. The defendant Elmer, his only son, had always remained at home, and worked on the farm, and, although somewhat addicted to drink, was, in the language of witnesses “very attentive to the farm as a rule,” and “was his father’s principal dependence for work for a great many years.” During the last 10 years of his father’s life, Elmer maintained relations with a woman named Tallman, which the court at special term finds constituted marriage, within the meaning of the testamentary provision in question- This finding we regard as altogether unsupported by the evidence. There was never any marriage ceremony nor any contract of marriage.- There was no agreement to live together as husband and wife, but only to live together. He had never held the woman out to the world as his wife, nor was she reputed to be such, but the general reputation was to the contrary. The facts were not such as to constitute the relation of marriage in the eye of the law, and clearly they did not constitute that relation within the intention of the testator, because, with the facts well known to him, he makes the provision in question for his son, to continue so long-as he “shall remain” unmarried. Whatever the purport or effect of that provision, we have no hesitation in saying that it was not forfeited or defeated by the existence of the relations between Elmer and Elizabeth Tallman.

The remaining problem in the case, viz. to give its due construction and effect to the provision in question, according to the intention of the testator, is perhaps not so easy of solution. It must depend largely upon facts aliunde the provision itself, some of which, in addition to those already stated, are as follows: The wife of the testator died before the will was made. Elmer and Ellen, the plaintiff, were the only ones of his children who remained at home with him,—the latter as his housekeeper, and the former as his main dependence on the farm. The farm consisted of 160 acres of good land, and was considered by the testator when he made his will to be worth $16,000. He gave it, free of incumbrance, except the provision in question for Elmer, to Ellen, together with all the household effects and the livestock, except the horses. To two other married daughters he gave $5,000 each, ab-' solutelv, and his residuary estate, whatever that should be. To three grandchildren he gave $1,000 each, absolutely, and to a son George, who is not otherwise mentioned anywhere in the case; the sum of $1,000, “provided he shall call for the same within ten years after my death.” The case affords no explanation of the curious proviso attached to this gift, but in itself it indicates something peculiar in the status of this son; possibly that he had long since disappeared from home and from the knowledge of his father, and that it-was even doubtful whether he was still alive. But, whatever the case in this respect, we think the son George may be dismissed from the account when a comparison is made of the several provisions for thje children of the testator. To Elmer he gave $500 absolutely, and the income, annually, of $500, which sum he gave to his executors in trust for that purpose, besides the working horses and farm implements on the farm at the time of his decease. The disparity in the provision thus far for Elmer and Ellen was very great, while, so far as appears, both had deserved alike from their father. The effect of the additional provision here in question was to lessen in some degree that disparity by laying a burden upon the one for the benefit of the other. It was also intended, no doubt, to have the effect of continuing the relations of the two to each other, and to the home which had been theirs in common for so many years. By the terms of the will, Elmer, on certain conditions, was to have a home on the farm during his natural life, and Ellen was to have the farm subject to the •interest of Elmer. The precise question here is what the term “home,” as here employed, was intended to include. The court at special term said it meant only a lodging place for which Elmer should pay what it was reasonaby worth. We are not at all satisfied with this exposition. We think it falls short of the benevolent intention of this prudent father towards his somewhat wayward, but always faithful, son. It is impossible to restrict the meaning of the word “home” as here employed to mere shelter and a bed. Elmer had always had a home on the farm, and it included subsistence; and so, we are satisfied, was the home intended to do which his father provided for him by his will. But we do not suppose that it was intended that his sister, or her grantees of the farm, should support him in idleness. While his father lived, Elmer had earned his living, and more, by his labor on the farm. He had received from his father $200 a year, besides his board, for his services. And, when his father provided for him a continuance of his living on the farm, we think it fair to assume that it' was intended he should continue to render corresponding services, in return therefor. A similar view was taken of a similar provision in a will in the case of Lyon v. Lyon, 65 N. Y. 339. That was the case of provision by a father of a home for a daughter on premises devised to sons. The daughter had been accustomed to render the usual services of a daughter in the home of her father, and the court held that, under the provision in question, she was entitled to a home, including support and maintenance, and was bound, in return, to render appropriate services in the home therefor. In this case it cannot be required that Elmer should do the work which he did on his father’s farm, by which he earned $200 a year besides his board and lodging; but we think it is in keeping with the spirit of the provision made for him that he should render to those charged with furnishing him his living such services on the farm as are appropriate as a compensation therefor.

The contention that the defendant had forfeited his “interest in the farm” by failing to indicate that he elected to claim it is not to be maintained in this case. No time is fixed, by the provision, in which the election shall be made, and we suppose he is entitled to the benefit whenever he elects to demand it.

The judgment in this case should be modified in accordance with the views here expressed, and, as so modified, affirmed, without costs of this appeal to either party. So ordered. All concur.  