Page:Federal Reporter, 1st Series, Volume 5.djvu/333

 WALKEB V. TEAL. 32l �Admitting, for the present, that the demand made by Hew- ett was larger than his right, are the cases cited to sHow that it is insufficient parallel with the one at bar? In the case of Hodgeboom v. Hall, supra, there was a devise of an estate to a son upon condition that he would support his two sis- ters. The latter, assumiag that the condition had been broken and the estate forfeited, bçought an action to recover possession of their interest in the property as heirs of the devisor; but the court held, upon the facts, that there was no satisfactory evidence of any demand and refusai of support, and therefore it did not appear that the condition was broken. Here, however, there was a formai demand and re- fusai, but it is objected that it included more than the party was entitled to. �In Bradstreet v. Clark, supra, an estate was devised upon condition that the devisee pay the legacies given by the will to the children of the devisor. Afterwards the legatees brought an action to recover the possession of the property, upon the ground that the estate of the devisee was forfeited by a refusai on the part of his grantee to pay the legaçy of $10 due one of them. On the trial it appeared from the evidence that the demand was made for the three legacies, two of which had been paid by the devisee, and the court held that the demand, although sulEcient to support an ac- tion to enforce the payment of the legacy, Was not sufficient to avoid the estate, likening it to the case of a leasehold estate held upon the condition of paying rent, which is not forfeited by non-payment unless there is also a demand of the precise sum due — neither a penny more nor less. �The legal title of this propetty was in Hewett, for the ben- efit of the plaintifi, and he was therefore entitled to the poses- sion and the pernancy of the profits from the date of the con- veyances to him, but for the stipulation in the declaration of trust that Goldsmith might have the posession and profits BO long as he was not in default upon his note. In effect, the plaintiff, having loaned Goldsmith $100,000, and the latter having conveyed this property to Hewett to seoure the pay- ment of that sum with interest, the parties agreed that instead �v.5,no.4 — 21 ����