In re the Appraisal of the Property of the Estate of Hess

Nash, J. (concurring):

= I concur in the opinion of Mr. Justice Spring.

, The conveyance of the fee of the farm to the grantee is in terms absolute.. It.isynade to Silas L. Strivings and Mae L, Strivings in consideration' of the covenants and agreements of Silas L. Strivings tti remove with his wife and family to the farm of Hess, and occtipy the dwelling house in common with Hess and his wife, and sup*482port, board and care for them on said premises during the natural life' of both Hess and wife and each of them, except clothing Strivings to reside upon and work said farm so long as Hess and wife, or either of them, should live.

Provision is made for the harvesting and disposal of the crop of ■ wheat growing on the farm, and the salable wood “ now ” cut on the premises, and Strivings further agreed to furnish a horse and conveyance for driving purposes when requested by Hess.

These are the personal covenants and agreements of Silas L. Strivings, in consideration of and subject to which the conveyance in fee is made to Strivings and wife, to them anil their heirs forever, “ Reserving the right to support, maintenance and residence on said premises, as hereinbefore provided, during the life of said second party and his said wife, and each of them.”

Subject to this reservation also, Strivings and wife, as such, took an absolute fee as tenants by the entirety.

The reservation was not of any specific interest of Hess and wife hi the farm, either of title or’ possession, but of the right to' support, maintenance and residence out of or on the farm, which, in case of the failure of Strivings at any time to perform his covenants and agreements, would have afforded Hess, and since his death Mrs. Hess, an equitable remedy in such form as the existing circumstances would at any time in the lifetime of Hess and wife, or of either of them, require. (Stehle v. Stehle, 39 App. Div. 440 ; Redpath, v. Redpath, 75 id. 97.)