In my opinion the defendant by accepting the devise of the real estate became absolutely bound while said real estate remained in her possession to give a home to plaintiff so long *90as said plaintiff desires to remain at home and this irrespective of the question what income was derived from the real estate. The provisions of the will respecting the plaintiff and the son Harry are very different. Respecting plaintiff the obligation imposed is absolute and unqualified. The devise to defendant is made subject “to my said wife giving a home to my daughter Rachel, so long as my said daughter desires to remain at home.” As to the son Harry the similar obligation is qualified in two ways. To him the defendant is to provide a home “ as best as she can ” and only “ if he needs it.” Ho such qualification is attached to the condition in favor of plaintiff. ' I, therefore, think that all the evidence as to the income realized from the property was immaterial. As I regard it,.the acceptance of the devise created a personal liability on the part of defendant either to furnish plaintiff a home, or, failing that, to pay the reasonable cost to plaintiff of providing a home for herself by way of damages for the breach of the condition. In this aspect of the case the plantiff’s remedy was an action at law or perhaps successive actions for damages, and I should concur with the presiding justice that this action in equity could not be maintained if defendant had persisted in her objections to such an action. She did not, however, persist. It is true that by her answer she denied plaintiff’s allegation that she had no adequate remedy at law, but no point was made of this on the trial, no motion made to dismiss the complaint and no application made for a trial by jury. On the contrary, both parties tried the case as if it was properly brought, and even upon this appeal the defendant makes no question as to the form of the action or as to equity’s cognizance thereof. Under these circumstances the parties must be held to have consented to try the case as one in equity, and I see no reason why we should reverse the judgment because • it should have been brought on the law side of the court.
The judgment should, therefore, be affirmed, with costs.
Clarke and Miller, JJ., concurred; Ingraham, P. J., and Laughlin, J., dissented.