Pyatt v. Lyons. against him, to make him a conveyance of the premises he took by his deed from the defendants. The affidavit of the complainant, annexed to the bill, says: "On the twenty-third day of May Fergus A. Dennis and Ollie H. Hubbard tendered me a deed for the strip of land, which is twenty-two feet and six inches fronting on Nassau street, and one hundred and thirty feet deep, which deed did not include the strip three feet and eleven inches on the Witherspoon street side. I refused to accept this deed. About this time I discovered that there was a cloud upon the title to the narrow strip fronting three feet and eleven inches and bounded on the east by Witherspoon street, and told the defendants and their attorneys, that it must be removed before I would accept the deed. * * I am now ready to pay the balance of the purchase-money as soon as the deed for the entire tract fronting twenty-six feet and five inches on Nassau street is delivered to me with all clouds removed from the title of any part of said land." * The evidence shows that a deed dated March 28th, 1892, was tendered the complainant on May 23d, 1892, and that he refused to accept the same and pay the balance of the consideration money, because the grantor did not have title to this narrow strip of land in question, which was within the lines of Witherspoon street. Several months were spent in endeavoring to get the borough authorities to give a quit-claim deed for this "narrow strip," but they failed on account of the objections of the mayor of the borough. In this effort both complainant and defendants, or some of them, united. When this effort had failed the defendants again, in the latter part of September, offered to deliver the deed and demanded the balance of the purchase-money. Lyons refused to take any deed and pay the balance of the purchase-money unless such deed embraced all the property he claimed under the agreement, which was twenty-six feet eleven inches in width on Nassau street. He was at this time told by one of the defendants that they could not give any other deed than the one already tendered. After this second refusal on the part of Lyons to take a deed unless it embraced the narrow strip described in the bill, the defendants, October 4th, executed and acknowledged a deed, conveying to the defendant Vanderbilt the same property described in the deed tendered to Lyons and which he had refused to accept. Pyatt v. Lyons. The bill, affidavit and evidence clearly show that the position taken by complainant, both in his suit and prior thereto, was that he was entitled to a deed, not only for the premises described in the deed tendered to him May 23d, 1892, and afterwards again offered to him in September, but also to this "narrow strip" of three feet eleven inches, within the lines of Witherspoon street, and that so believing he refused to pay the balance of the purchase-money he had agreed to pay, unless he got a deed with covenants of general warranty and against encumbrances, which would give him a good title to twenty-six feet eleven inches, a part of which (three feet eleven inches) was within the lines of Witherspoon street. The defendants could not give title to this "narrow strip' to either complainant or Vanderbilt, but after the sale to Vanderbilt they or one of them offered to complainant the $500 he had paid Hubbard on account of the purchase-money, and also $500 for the liquidated damages named in the contract. There are serious questions presented in this case which affect the right of complainant to the relief prayed for in his bill, but we do not deem it necessary to discuss or express an opinion upon any of them, except the one upon which we shall decide this case. In this case, if the contract is to be enforced, the complainant was entitled, in equity, to a conveyance of a lot on the corner of Nassau and Witherspoon streets, in Princeton, twenty-two feet six inches wide and one hundred and twenty-nine feet deep, and he was not entitled, in equity, to the "narrow strip" of three feet eleven inches, which was part of Witherspoon street. The learned vice-chancellor reached this conclusion, and determined correctly upon the evidence in this case, that this complainant never had any right, in equity, to have a conveyance of a lot of more than the twenty-two feet six inches in width. The defendants offered to convey such a lot, and twice, once in May and again in September, 1892, tendered the deed of March 28th, 1892, containing a proper description of a lot twenty-two feet six inches wide by one hundred and twenty-nine feet deep, on the corner of Nassau and Witherspoon streets. The complain Pyatt v. Lyons. ant refused to take any deed unless it gave him a lot twenty-six feet five inches in width, and refused to pay the balance of the purchase-money unless he got a good title to such a lot as would include the "narrow strip" of land in Witherspoon street. The relief invoked is not a matter ex debito justitia; the bill for specific performance is addressed to the extraordinary jurisdiction of a court of equity to be exercised according to its discretion, and he who seeks performance of a contract for the conveyance of land must show himself ready, desirous, prompt and eager to perform the contract on his part. Meidling v. Trefz, 3 Dick. Ch. Rep. 644; Page v. Martin, 1 Dick. Ch. Rep. 589; Blake v. Flatley, 17 Stew. Eq. 231. The complainant has not presented a case which brings him within the above rules, and no case has been shown where a court of equity decreed specific performance after such a refusal as complainant admits in this case. He refused to perform the contract on his part, unless the defendants would do what in equity they were not bound to do. The complainant cannot, after such a refusal, and after the defendants have sold the premises to another, seek in a court of equity the relief prayed for in this suit. He must be left to his remedy at law. The decree below should be reversed, with costs. For reversal-The Chief-Justice, Abbett, DepUE, DIXON, REED, VAN SYCKEL, BROWN, CLEMENT, KRUEGER, SMITH -10. For affirmance-None. Westcott v. Sheppard. LELIA WESTCOTT, appellant, v. HANNAH W. SHEPPARD et al., respondents. 1. A testator who can comprehend the property he is about to dispose of by will, the natural objects of his bounty, the meaning of the business in which he is engaged, the relation of each of these factors to the other and the disposition which his will makes, at the time of executing the will, possesses testamentary capacity. 2. The influence which the law denominates undue, and which vitiates a will executed under it, must amount to moral or physical coercion, destroying free agency and constraining its subject to do that which but for it he would not do. On appeal from a decree of the prerogative court, reversing a decree of the Camden county orphans court. Mr. Christopher A. Bergen, for the appellant. Mr. Thomas B. Harned and Mr. David J. Pancoast, for the respondents. The ordinary delivered the following opinion: The decree now reviewed determines that a paper which was admitted to probate on the 15th day of August, 1889, by the surrogate of Camden county, as the will of Thomas D. Westcott, deceased, is not such will, and that the probate of the surrogate be set aside. This appeal is heard upon the same proofs that were produced and considered in the orphans court. The validity of the alleged will is assailed by the only daughter of the decedent, upon the grounds—first, that the deceased lacked testamentary capacity when it was executed, and, second, that he was unduly influenced by the appellant Hannah W. Sheppard. Westcott v. Sheppard. When the will was executed, Thomas D. Westcott was about fifty years of age. It is undisputed that for two or three years before then he had been a paralytic, and very dependent upon the assistance of others for his physical comforts. He had married in the year 1872, but in 1879 or 1880 he went to Missouri, where, in 1882, he procured a divorce from his first wife, upon the allegation that she had deserted him. In 1884 his wife likewise obtained a divorce from him in this state on similar grounds. He had one child, a daughter, the respondent in this appeal, who is not yet of full age. Since the separation of her parents, this daughter has lived with her mother, and has only occasionally visited her father, and then only for a short time. In his early manhood the decedent studied medicine, and although he failed to secure a diploma from a medical college, he practiced for a time under an unrecognized diploma that he had purchased. His ability and attainments were so far acknowledged by his fellow-practitioners that he was regularly admitted to membership in a medical society in Camden, and for a time, until the character of his diploma was discovered, he appears to have maintained a respectable standing in that society. After the worthless character of the diploma became known he resigned from the society and ceased to practice as a physician, yet throughout his life he retained the appellation "doctor," and was known as Doctor Westcott. As long as his parents lived he resided with them. When he married he took his wife to his father's house in Camden, and there lived with her and his parents until his departure for Missouri. While he was in Missouri his mother's health failed so that she became unable to superintend her household affairs, and needed the constant attention of a nurse. To meet the emergency thus occasioned, the appellant Hannah W. Sheppard, an unmarried niece of the decedent's father, Ebenezer Westcott, being then about thirty-four or thirty-five years of age, and residing in Trenton with her mother, was sent for and installed in the house at Camden as housekeeper and nurse. She served faithfully in this capacity without compensation, being accorded a place as a member of the family. In 1883 Mrs. Westcott, the mother, |