The 'finding that Rose Quest agreed to give to the plaintiff the house and lot in which she lived, and the furniture therein, if she and her family would give up then home and move into her house and take care of her during her lifetime, and that the plaintiff entered upon the performance of said agreement and was performing the same until prevented by the deceased, 'is well sustained by the evidence. The conclusion that it would be a‘proper case to decree a specific performance and put the ownership of the property in the plaintiff if the same had not been transferred to. a bona fide holder is satisfactory. The devisee, James Quest, having conveyed the property to a bona fide holder before action brought, the court decreed a substituted performance by requiring the executor to pay the value of the house and lot so conveyed to the plaintiff. The substituted performance provided for is inequitable, as it' leaves in James’ hands the moneys which he received'from the house and lot and takes all the interests which the .other parties have under the will to make good to the plaintiff the loss which she has sustained. If the defendant James Quest, the devisee, had not transferred the house and lot, clearly in this action the ownership would be declared in the plaintiff. After Rose Quest prevented the plaintiff from performing the contract, November 27, 1905, she lived twelve days. The will was probated promptly after her death, and James Quest, the devisee, entered into possession of the property. The house was burned; he collected the "insurance and rebuilt, it and sold it ■Time twenty-fifth following. It thus appears that if the plaintiff had brought this action at any time before June twenty-fifth, upon the facts found she would have been awarded a specific performance of the contract. By sleeping upon her
It is evident that the testatrix was not on friendly terms with her relatives, and that as she was approaching- death she was led to a reconciliation, and such reconciliation caused the making of the codicil and the termination of the plaintiff’s employment. She left an estate of about $2,600 in personal property, three or four lots worth $600 each, the house and lot in question worth $1,800 and the furniture therein worth about $54.25. There remains in the hands of the executor $2,000 of personal property and the lots. The will and codicil gives legacies of $850 to relatives and friends outside of the residuary legatees, and to Margaret Lorey, one of the cousins, a residuary legatee, she gives a legacy of $500. James Quest is to have one-half of the residuary estate; the other half is to be divided between Margaret Lorey and three other cousins. If the house and lot, in a court of equity, is deemed the property of the plaintiff, then James Quest has received the proceeds of the plaintiff’s property and should be required to make it good. A substituted performance of thé contract would seem in fairness to require that James Quest should first refund .the amount received from the real estate,- and then if there is a balance still remaining due the plaintiff it should be adjusted on equitable principles as the facts may appear upon the trial. The judgment should, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.
All concurred; Smith, P. J., concurring in the result in a memorandum.