volved, and her surviving husband, appellant, has been liberally provided for in accordance with the terms of the antenuptial contract. The charity founded arose from noble sentiments toward the worthy 432 poor of St. Paul, and should not be defeated by an application of technical rules of law.

7. The last point presented assumes the validity of the will and involves the construction of the twelfth subdivision thereof. This part of the will, so far as here material, provides as follows: "In the event I am the owner of the same at the time of my death, and we are then living together as husband and wife, I will, devise and bequeath to my said husband, Dr. T. E. W. Villiers Appleby, the use and enjoyment, so long as he shall occupy the same and remain unmarried, the following property in St. Paul, Minnesota." Here follows a description of the property, which is known and referred to in the record as the "Wilder homestead." The will then directs the executors of the will, as soon after her death as convenient, to set apart from her estate an amount sufficient to produce an income of not less than five thousand dollars to be used in paying taxes and assessments upon the property and the cost and expense of maintaining the same as a residence so long as appellant should remain unmarried and continue to occupy the same.

It is a conceded fact that the property here attempted to be devised to appellant did not in fact belong to the testatrix, Mrs. Appleby, at the time the will was executed, nor at the time of her death. It was the property of her mother, Mrs. Wilder, who was living and in the possession of it when Mrs. Appleby died. Two questions are here presented: 1. It is claimed by appellant that this attempt to devise the Wilder homestead to appellant, title to which was in Mrs. Wilder, coupled with certain bequests to Mrs. Wilder, became effective upon the acceptance by her of such other bequests, under the doctrine of equitable election, applied in Brown v. Brown, 42 Minn. 270, 44 N. W. 250, and Sorenson v. Carey, 96 Minn. 202, 104 N. W. 958; and 2. That if this contention be not sustained, and the court should hold that appellant has no claim to that property, inasmuch as five thousand dollars a year was directed by the will to be expended in the maintenance of the property during appellant's rightful occupancy thereof, and because of the fact that without fault on his part and because of circumstances 433 over which he had no con

trol and were unforeseen by the testatrix, the money so directed to be applied cannot be applied in the particular manner directed, it should go to appellant for his general use and benefit.

We are unable to sustain either of these contentions. To the first it is sufficient to say that Mrs. Appleby made no absolute devise of the homestead to appellant. The devise was expressly conditioned upon her ownership at the time of her death, and did not require of her mother, even though she accepted bequests made to her, to elect whether to take them or retain her own home. The conditional feature of the devise to appellant relieved her of this equitable obligation: Sherman v. Lewis, 44 Minn. 107, 46 N. W. 318; Havens v. Sackett, 15 N. Y. 365; Charch v. Charch, 57 Ohio St. 561, 49 N. E. 408. Mrs. Appleby, when executing her will, undoubtedly expected to outlive her mother, and that the homestead would in that event become her property. The possibility of such result not occurring, she conditioned the devise to her husband accordingly. As to the second contention, we need only say that it is evident from the will that the sole object and purpose of creating the five thousand dollar fund was to maintain the homestead in suitable condition for use and occupancy by appellant-to relieve him of that burden. It was clearly not intended for his personal benefit, and he is in no position to insist that it be paid him, to be devoted to purposes other than those intended by his wife: Tilden v. Green, 130 N. Y. 29, 27 Am. St. Rep. 487, 28 N. E. 880, 14 L. R. A. 33; Levy v. Levy, 33 N. Y. 97.

This covers all questions presented in the briefs requiring consideration, and, as our conclusions are in harmony with those reached by the learned trial judge, his order in the premises is affirmed.

JAGGARD, J., Dissenting. The antenuptial contract was, in my opinion, void because of the clause providing that the husband should have no part of the wife's estate at her death in case they were not then "living together as husband and wife."

The Validity of Conditions in Restraint of Marriage is discussed in the notes to Wakefield v. Van Tassell, 95 Am. St. Rep. 214; Chapin v. Cooke, 84 Am. St. Rep. 147.

The Assignment or Release of Expectant Estates is discussed in the note to McCall v. Hampton, 56 Am. St. Rep. 339. If a husband and

wife execute an agreement of separation whereby each releases all claim to the property of the other and all right of inheritance thereto, and the agreement is lived up to by both during her lifetime, he will not be heard to say, after her death, that the contract is unfair: Estate of Edelman, 148 Cal. 233, 113 Am. St. Rep. 231.

CASES

IN THE

SUPREME COURT

OF

MISSISSIPPI.

GANONG v. BROWN.

[88 Miss. 53, 40 South. 556.]

CONTRACTS-Entire or Divisible.-Whether a contract is entire or divisible cannot be determined by a single term, phrase, or sentence, though it be large enough to include such meaning, unless throughout the whole agreement and from the surrounding circumstances it definitely appears that it was the intention of the parties that the contract should be entire and indivisible. (p. 732.)

CONTRACTS-Entire or Divisible-Partial Performance.-If a person contracts to paint and paper a house for a fixed sum, "to be completed in good, workmanlike style, work to begin and be finished as soon as possible," and before the completion of such work the house is accidentally destroyed by fire, such person can recover the value of his materials and labor put upon the house before its destruction, especially when he gave an order for a partial payment on the owner before the fire, and the latter collected fire insurance to the full value of the building as a completed and finished building. (p. 732.)

Suit on a contract made by Ganong & Chenoweth, a partnership, with Brown to paint and paper his house, the contract providing that the work was "to be completed in good, workmanlike style for the amount set opposite: . . . . Work to begin and to be finished as soon as possible." The remaining facts appear from the opinion.

S. A. Morrison, for the appellant.

W. C. McLean, for the appellee.

62 WHITFIELD, C. J. We do not think the contract in this case was an entire one. We approve the statement of the law on this subject announced in Baily v. DeCrespany, L. R. 4 Q. B. 180, which is as follows: "Whether a contract

is entire or divisible cannot be determined by a single term, phrase or sentence, though the same be large enough to include such meaning, unless throughout the whole agreement, the surrounding circumstances, and good sense and justice of the case it definitely appears that it was the intention of the parties to the contract that it should be entire and indivisible." Applying this principle to the writing in the case, to all the circumstances surrounding the making of the contract, we do not think that this contract can be properly held to be an entire contract. It was well said by counsel for appellant that the word "completed," in the phrase 63 "to be completed in a workmanlike style for the sum set opposite," does not mean that nothing is to be paid until the job is finished, does not refer to a limit of time with regard to payment, but means that the work throughout is to be done in a workmanlike manner. After the appellant had put great value into the building by his labor and materials, the building without his fault was destroyed by fire. The day before the fire Ganong gave an order on Brown in favor of Guy & Pressgrove for material in the sum of seventy dollars. While it is true that Brown did not pay this, it is a very pregnant circumstance, showing Ganong's construction of the contract and conduct under it. A few days before the fire Brown insured the property "as a finished building" for his own benefit. This was equivalent to a declaration that the entire property was his, and he received five thousand dollars insurance, full payment on the whole loss, the property being treated as a finished building: Partridge v. Forsythe, 29 Ala. 200.

It would be in the highest degree inequitable to permit Brown, with the full value of the building, treated as a completed and finished building, in his pocket, to refuse payment to appellant for the labor and materials which put the building into a condition so far finished as that Brown and the insurance company dealt with it as completely finished: Cook v. McCabe, 53 Wis. 250, 40 Am. Rep. 765, 10 N. W. 507. The authorities are so well collected in the brief of counsel for appellant that we will content ourselves with a simple reference to them. We think the plaintiff is entitled to recover. The judgment is reversed, and the cause remanded.

The Entirety of Contracts is discussed in the note to Huyett & Smith Co. v. Chicago Edison Co., 59 Am. St. Rep. 277. One engaged to make repairs or do other work on the house of another under a spe cial contract may recover for what he has done when the comple