
    H. Spencer Beardsley, as Trustee, etc., of Peter Johnson, Deceased, Respondent, v. Ellen H. McCutcheon, Appellant.
    
      Contract — a lessee taking a lease pursuant to a contract may insist, in an action to enforce the lease, upon the right reserved to her by the contract—parties.
    
    An agreement, made in compromise of the contest over a will, by five adult legatees of the testator, and his two executors, to w-hich latter he had devised certain premises in trust during the lives of two of his daughters, with directions to distribute the proceeds equally among certain legatees, provided that one portion of such premises should be leased to one of the legatees and another portion to one of the executors (also a legatee) at a fixed rental, and that the net rentals should be distributed annually by the executors among the legatees.
    The executor to whom the lease was made having defaulted in the payment of his rent, an agreement was made by three of the legatees, not including the legatee who was lessee, under which the executor so in default was permitted to surrender his lease, and a new lease of such land was made to a third party at a less. rent.
    
      Held, that the legatee, who continued as lessee in possession of the parcel of land demised to her, was entitled to a' distribution of the rent upon the basis of the first above-mentioned agreement.:
    That, in an action brought upon the written lease, executed pursuant to said first above-mentioned agreement, an objection that such agreement was to be binding only when signed by all of the immediate heirs of the testator, and that it had not been signed by certain minor heirs, should not be sustained. .
    ■ Appeal by the defendant, Ellen H. McCntclieon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orleans on the 10th day of Jiine, 1891, upon the decision of the court rendered after a trial before-the court, without a jury, at the Orleans Trial Term.
    
      Thomas A. Kirby, for tlie appellant.
    
      Isaac S. Signor, for the respondent.
   Adams, J.:

This is an action for rent', and the undisputed facts of the case-are briefly these, viz.: Prior to August 16,1884, one Peter Johnson,, who, at the time of his decease, ivas the owner of the demised premises, departed tins life leaving a last will and testament in and by which he nominated and appointed .two of his children, Dwight. P. Johnson and Einnet-te B. Crossett his executors, and devised to them the premises in question, together with ,certain other premises,, in trust, to receive the rents, issues and profits thereof during the lifetime of two of his daughters, and, after deducting the expenses of a proper management of the farm and the executors’ commissions,- to divide the remainder into five equal portions and pay one portion to each of his children who should be living, or -the descendants of any deceased child.

After the decease of the testator a contest arose over the probate-of his will, but the controversy was subsequently compromised, and,, as the result of such compromise, all the adult legatees, including the above-named executors, entered into a written agreement on theS2d day of March, 1884, in and by the terms of which it was stipulated that the premises in question should be leased to the defendant during the lifetime of the two daughters, who are the beneficiaries named in the will, or the survivor of them,, at the annual rental of $403.20, and that certain other premises owned by the testator at the time of his decease should be rented to Dwight P. Johnson, one of his executors, at the annual rental of $668. It was further agreed, that each, tenant should pay all the taxes and insurance and make such repairs as were necessary u]Don the premises respectively demised ; that the net income arising from such rental should be equally distributed to the several legatees mentioned in the will of Peter Johnson, and that the defendant might, upon the annual division of such rental moneys, retain her share thereof, to be applied towards the payment of the rent reserved for the premises leased by her.

In pursuance of this agreement, Dwight P. Johnson went into occupation of the premises leased by him, and continued therein down to the 1st day of April, 1896. It appears, however, that on the 2d day of July, 1895, the accounts of Dwight P. Johnson, as executor of Peter Johnson, were judicially settled by the surrogate of Orleans county, and it was then discovered that he was largely in arrears for the rent owing by him, and that he was unable to pay the same. It was thereupon agreed by three of the five legatees, other than the defendant, that Dwight P. Johnson should be permitted to surrender his lease, and that the defendant should also, at her option, be at liberty to surrender hers.

Thereupon Dwight P. Johnson did surrender his lease and he and his co-executor resigned their trust, but the defendant declined to’ avail herself of the option offered her and continued in the occupation of the premises under her lease. Subsequently the plaintiff was duly appointed testamentary trustee in the place of the executors who had resigned, and after making diligent effort to secure a. tenant for the Dwight P. Johnson premises, he finally leased the same to one Marcellus for the annual rental of $600, the estate to pay all taxes except the highway tax, and for all necessary repairs made to the buildings upon the.demised premises.

Upon this state-of facts arises the main contention of the case, the plaintiff insisting that the defendant is only entitled under the-agreement of March twenty-second to one-fifth of the net income arising from the rental of the two farms upon the basis of the rent reserved in the Marcellus lease; while upon the other hand the defendant claims that she is entitled to have the distribution or division made upon the basis of the original lease to Dwight P-Johnson, and in her answer she alleges that she has offered to allow judgment to he entered against her for the amount due her father’s estate upon the latter basis.

The learned trial court sustained the plaintiff’s contention, and the Correctness of its conclusion is consequently the principal question to be determined upon this appeal. ■ We are persuaded that a very brief reference to the. language of the agreement which determines the rights of the respective parties will possibly furnish the most satisfactory solution of thé controversy; and, by adopting this course, .it will be found that the agreement of March twenty-second, after reciting that it is entered into for the purpose of settling all litigation and dispute arising out of the contest of the will of .Peter Johnson, provides that the executors and trustees shall execute a lease of the .home farm of 167 acres to D. P. Johnson during the lives of said D. P. Johnson and Ellen H. McCutcheon, or the sur-' vivors of them, for the annual rental of $668, to be paid to the executors on the first day of December of each year, reserving the amount due. said lessee (D. P. Johnson) on each annual division of said rental money.”

■ Then follows a like provision for leasing the Stillwater ” farm of 126 acres to the defendant during the-lives of'Emily A. Johnson and Finnette B. Crossett, or the survivor of them, and the further stipulation as to the payment of the taxes and insurance by the respective.tenants, to which reference has already been made.

The lessees also expressly agree to pay to the executors the annual rental' to be specified in their respective leases, excepting and reserving such amounts as shall be due them at each annual division of the rental money, and the executors agree to make such division “ without any deduction for any cause whatever.” ■

In pursuance of this agreement leases were subsequently executed to the respective lessees, and it is conceded that both Emily A. Johnson and Finnette B. Crossett were living at the time this action, was commenced. It will be seen, therefore, that the defendant and the plaintiff’s predecessors are parties to an express contract providing that certain premises shall be leased upon terms and conditions which are fixed and definite, and as this contract is still in force, we are unable to see upon what principle the plaintiff claims the right to modify its terms without the defendant’s consent.

It is somewhat remarkable that the contract should not have contained some provision for just such a contingency as eventually happened, but it is coneededly silent upon that subject; and as the parties appear to have executed it with due formality and deliberation, they should now abide the consequences of their omission.. In other words, the estate of Peter Johnson having for a sufficient consideration leased the premises in question to the defendant for a definite term, upon certain conditions, she has the undoubted legal right to insist that those conditions shall be literally fulfilled, even though their fulfillment nmfives the estate which the plaintiff represents in some loss. Such loss, whatever it may be, it is proper to suggest, arises from no fault of the trustee, for his good faith in the matter is not questioned, but it is rather the result of his predecessors’ improvidence.

It is urged, however, that if the contract of March twenty-second is to receive the construction which we are disposed to give it, the defendant cannot insist upon its enforcement; for the reason that by its terms it is to be binding only when signed by all of the immediate heirs of Peter Johnson, deceased, it being conceded that the minor children of a deceased daughter of Peter Johnson are not parties, to it. But this contention is one which we do not regard worthy of very serious consideration, inasmuch as the plaintiff brings his action upon the written lease which was executed in pursuance of, and is-founded upon, this contract, which fact would seem to deprive him of the right to either assert that its execution was unauthorized or attack its validity.

Our conclusion, therefore, is that the learned trial court erred in finding that the defendant was not entitled to a division of the rental moneys upon the basis contemplated by the agreement of March twenty-second, as we have construed it, and that for such error a new trial must be directed. Having reached this conclusion, it will be unnecessary to consider any of the minor questions which, arose upon the former trial.

All concurred.

Judgment reversed and a’new trial ordered, with costs to the appellant to abide the event.  