Statement of the Case.

BLAISE LORILLARD, RESPONDENT, v. GEORGE W. M. SILVER, APPELLANT.

Words "In case I realize"-Construction.

Where the grantee of land agreed to pay the grantor five hundred dollars additional price, provided he realized thirty-five hundred dollars for said land, and he was offered by responsible parties forty-five hundred dollars, which he refused to take for said land: Held, that said grantee was under no legal obligation to sell such land at any price; and that until he did sell for, or above, the price named, he was not liable to pay the five hundred dollars.

THIS is an appeal by the Defendant from an order of the General Term, reversing the judgment in his favor, entered upon the report of the referee, and granting a new trial.

The Respondent claims the right to recover of the Appellant the sum of $500, and interest, under the following agreement:

"This is to certify that I agree to pay to Blaise Lorillard, in consideration of a certain piece, parcel, or tract of land, purchased of him as per deed, bearing date this twenty-sixth day of March, one thousand eight hundred and fifty-six, over and above the amount specified in a note given by me to him, bearing the same date, five hundred dollars, in case I realize thirty-five hundred dollars for said land, or any other sum between three thousand and thirty-five hundred that I may sell said land for, less the interest on said purchase after six months and to the time I may dispose of the same.

"Saugerties, March 26, 1856.

"Witness, Albert Silver."

"GEO. W. M. SILVER.

The referee finds as further facts in the case, that the premises were purchased by the Defendant on speculation, for the purpose of selling again, and not as a permanent investment; that, in the summer of 1856, the sum of $4,500 was offered to the Defendant for the premises, by a responsible man.

His offer was not accepted. Afterward the premises declined in value, and there is no evidence that since that offer the prem

Opinion by HUNT, J.

ises can be sold for the amount actually paid for them, viz., $2,500.

S. Hand for Appellant.

E. Cooke for Respondent.

HUNT, J.-The disposition of the case will be controlled by the meaning of the expressions in the contract, "in case I realize," and "that I may sell said land for." The referee held that the Defendant was only liable in the event of his actually making a sale of the premises, and receiving payment on such sale.

The General Term, on the contrary, were of the opinion that if the Defendant had an offer for the premises from which he could have made the requisite amount, but which for any reason he did not accept, he thereupon became liable to the Plaintiff for the sum of five hundred dollars. The language employed in the contract appears to be carefully selected with a view of avoiding this latter conclusion.

To "realize" means to bring into actual possession. It is ordinarily read in contrast to hope or anticipation. The Defendant may hope or expect to sell his lot for six thousand dollars, but until he actually sells and receives the money, or its equivalent, he cannot be said to have "realized" either his hopes or his profits. In the present case he had an offer of $4,500, which he did not accept. He may have erred greatly in not accepting this offer. He may have lost the opportunity thereby to secure to himself an advance of a thousand dollars, and to the Plaintiff an advance of five hundred dollars.

It cannot, however, be said that he has "sold the land" and "realized" over three thousand dollars. He still holds the land, and, as all parties admit, has received nothing upon its sale.

If the contract had used language importing an obligation to sell on his part, or to use diligence to effect a sale, or to exercise his judgment when an offer to sell should be made, a different question would in each event have been presented.

The present contract, however, plants the Defendant upon the

Opinion by GROVER, J.

naked ground of "selling the land" and "realizing" a specific amount. This state of things has never yet been reached.

The Plaintiff's counsel claims that the Defendant stood in the position of a trustee for the Plaintiff, to the extent of five hundred dollars, and so far bound to act for his exclusive benefit. No such intention is fairly to be derived from the terms of the contract. The Defendant entered into the purchase as a speculation on his own account, and for his own benefit. The primary object of the purchase was to make money for himself.

The Plaintiff also entered into the speculation to the extent of receiving a portion of the proceeds, when realized, as an addition to the purchase-money. The exclusive right to dispose of the property was left with the Defendant, and it was a necessary result that he was justified in acting with reference to his own interest in accepting or rejecting an offer for the property.

I think it was in the contemplation of the parties that the Defendant was to act upon this principle, and that if it should result, while so acting, that a certain rate of profit should be made, then the Plaintiff's right should attach to the additional five hundred dollars.

His rights were subordinate to and dependent upon the result of the Defendant's disposition of the property.

I think the order of the General Term should be reversed, and the judgment upon the report of the referee be affirmed.

GROVER, J.-No facts authorizing a reformation of the contract were found by the referee. The order of reversal does not show that it was based upon questions of facts. The only question, therefore, to be determined by this Court is, whether the Plaintiff, upon the facts found by the referee, was entitled to recover. This depends upon the true construction of the contract. By that adopted by the Supreme Court, the Defendant was bound to sell the land whenever he could obtain such a price as, by the terms of the contract, would require him to pay the Plaintiff five hundred dollars. This he agreed to do in case he realized thirty-five hundred dollars for the land, over and above in

Opinion by PARKER, J.

FRANCIS MORRIS, APPELLANT, v. MARGARET A. WARD, RESPONDENT.

Will-Statute of Descents-R. S. Part II. Ch. 2.

The estate comes to the intestate "on the part of the mother," where it was a gift by the grandfather to the mother for life, and remainder to her surviving issue, of which the intestate was one.

In such case, the mother dying, leaving two children her only surviving issue, on the death of one of the issue the estate descends to the father for life, with remainder to the survivor of the children.

PARKER, J.-This action was brought in the Supreme Court, to obtain an adjudication declaring the Plaintiff's estate in certain city lots, in the city of New York, which he holds with the Defendant, to be an estate in fee, instead of an estate for the life of the Defendant's father, Samuel Ward, as claimed by the Defendant.

The Plaintiff, through several conveyances, has obtained the interest which Samuel Ward had in the premises; and what that interest is, whether a moiety for the life of Samuel Ward, or in fee, is the principal question in the case.

The action was referred, and the referee held that the estate of Samuel Ward was only an undivided moiety in the lands in question for his life, and dismissed the complaint, and directed judgment for the Defendant, against the Plaintiff, for costs.

The material facts established in the case by the findings of the referee, and the admissions in the pleadings, are as follows:

On the 25th day of January, 1838, the said Samuel Ward married Emily Astor, the daughter of William B. Astor, and grand-daughter of John Jacob Astor, late of the city of New York, deceased. On the 16th day of February, 1838, the said John Jacob Astor, by deed of that date, for the consideration therein expressed, of natural love and affection to said Emily, and of one dollar, did give and grant unto her (besides certain bonds and mortgages), thirty-two lots of land, therein and in the complaint described, with the hereditaments

Opinion by PARKER, J.

and appurtenances thereof, to have and to hold the same to the said Emily during her life, unless she or her husband should attempt any sale thereof, or make or allow any incumbrance thereon, in which case her estate was to cease, and the same was given to trustees, to receive the rents and profits thereof, and apply them to her use during her life; and by the same deed, and for the same consideration, the said John Jacob Astor did give and grant the said lands and their appurtenances, from and after the death of the said Emily, unto her surviving issue, and their heirs and assigns forever, and did declare that the provisions therein made were to be deemed an advancement to the said Emily, out of his estate, and to be so accounted under his will, and that the said lands and bonds and mortgages were, for such purpose, valued at $200,000.

This sum of $200,000 the will of the said John Jacob Astor, published December 30, 1846, charged upon the residuary portion of his estate, therein given to the said William B. Astor, as a sum to be settled on the said Emily and her issue, and in regard to which, by a codicil to said will, made and published January 19, 1848, he made the following provision: "I direct that the said portions of $200,000, for each of the daughters of my son William B. Astor, shall be settled on them on their respectively attaining the age of twenty-one years, or their marriage."

On the 18th day of February, 1841, the said Emily died, leaving her surviving her husband, the said Samuel Ward, and two children, the issue of said marriage, viz., Margaret Astor Ward, the Defendant, and William Samuel Ward, now deceased. On the 23d day of February, 1841, the said William Samuel Ward died intestate, leaving no descendant, but leaving him surviving his father, the said Samuel Ward, and his sister, the said Defendant, and no other heir-at-law.

The said Samuel Ward, and Margaret A. Ward, the Defendant, as proprietors of the parcel of land, consisting of thirty-two lots, described and conveyed by the said deed of settlement, had the right of pre-emption to take out a grant from the Mayor, Aldermen, and Commonalty of the city of New York, of the land under