Gaines v. Winthrop
New York Court of Chancery
Bill for a specific performance of the sale of lots of ground. Egerton Leigh Winthrop was seized of the property; and while he was ill, his brother, as his agent, signed an agreement for the sale of the lots to the complainant, Marquis D. L. Gaines. Prior to this time, Egerton Leigh Winthrop had made his will. He afterwards died. The question was, as to where the complainant was to look for title ?
1Opinion of the Court
The Vice-Chancellor:
The contract for sale is sufficiently proved ; and enough was done to render it binding upon the testator, and the complainant is entitled to a specific performance of the same.
But the question is : where shall he look for title—who is to execute the proper conveyance ? The rule is that a contract to sell is a revocation in equity pro tanto of a prior will. Still, as to the legal estate, the will remains in force ; *572the title passes to the devisee and he will be considered a trustee for the purchaser and compelled to convey in fulfilment of the contract: 1 Preston on Abs.…
2Cited by2 opinions
- Wagstaff v. MarcyNew York Supreme Court · 1898
- In re the Estate of CallNew York Surrogate's Court · 1970