I do not agree that the court may not under any circumstances allow Marion D. Schmoyer to place a bond as "adequate assurance, guarantee or security" for the payment of claims against the estate and costs of administration as the agreement *Page 630 between Schmoyer and Mrs. Mulkey provides and as the tendered bond undertakes to do.
The statute does not prohibit this but on the contrary expressly authorizes it in certain cases without an agreement. Section 10321, Revised Codes.
There is no reason why the agreement should not be carried out so far as it provides for placing a bond to answer for the payment of claims and expenses of administration so that the intention of testatrix may be fully realized and Schmoyer be thus the better enabled to carry out the agreement as desired by the testatrix. I think though that before this may be done there must be an adjudication in appropriate proceedings that Mr. Schmoyer has complied with the terms of his contract because if he has not then clearly he has no interest in the property.
I concur in the view that before the escrow papers may be surrendered to Marion D. Schmoyer he must show that he has complied with the terms of the agreement. Knapp v. Andrus,56 Mont. 37, 180 P. 908. It seems to me too that Mr. Schmoyer should be permitted to retain possesion under the agreement until it is determined whether he has complied with its terms.
In this connection it is my opinion that unless Mrs. Mulkey in her lifetime took some steps under paragraph 12 of the contract to forfeit the rights of Schmoyer, there is at least a strong presumption that he had complied with the contract up to the time of her death. Paragrah 12 of the contract in substance gave her the right to declare a forfeiture in the event of noncompliance and the right to retake possession and to demand the return to her of the escrow papers.
Rehearing denied June 24, 1946. *Page 631