This case arises on a bill in equity, praying for relief from a forfeiture, for the non-performance of a condition annexed to a devise of land, under the will of Caleb Westcott. The case was heard at the last term, and held for advisement.

*227 The devise in question is of a lot of land, in Fulton-street, in the city of Providence, to Luke Green, in trust for the testator’s daughter, Mary Carpenter, during her life, and after her decease, to her daughters, Mary Ann Carpenter and Catharine A. Carpenter, (.now Catharine A. Tilden,) in fee-simple. The condition is, that the person or persons first entitled to said lot, after the testator’s decease, shall pay to the executors named in the will, the sum of $250, in four months after the testator’s decease.

The executors of the will are residuary devisees and legatees of all the estate of the testator; and, with Catharine A. Westcott, (to whom one of the executors has conveyed all his interest in his father’s estate,) are the defendants to this bill.

The testator died in the year 1839, and his will was proved in November of that year. Mary Carpenter was in possession of the estate, at the time of the testator’s decease, and so continued, to the time of her decease, in 1854. The said sum of $250 was not paid in four months after the testator’s decease, nor afterwards, down to the time of the filing of this bill. The complainants have made tender of that sum, with compound interest, and asked to be relieved from the forfeiture. They allege in this bill, ignorance, accident, and mistake, as an excuse for the non-performance of the condition, by reason of which the estate is forfeited at law, and then- readiness to make full compensation, by the payment of the original sum, with compound interest, which they have tendered to the executors.

The answers of the defendants urge against the prayer of the bill, the lapse of time and an alleged change of circumstances, denying that the complainants have been-prevented by ignorance, accident, or mistake, from the performance of the condition, and claim the estate as forfeited, and resist the application for relief. They admit that the estate has been in possession of the said Mary Carpenter from the time of the testator’s death up to the time of her decease; and say that they did not intend to disturb her in the possession of it during her life, on account of her destitute condition; but did not intend to waive their claim to the estate as forfeited.

The case, we think, is clearly a case of a devise, on condition subsequent, ip which compensation can be made. In such a *228 case, courts of equity always relieve against a forfeiture. Especially, we think, should equity relieve in a case of this kind, arising under a will, where the intent of the testator should govern, if it can be, consistently with the rules that govern the decisions of courts of equity and law. What was here the intent of the testator ? Clearly, that the estate should go to the devisees, charged with the payment of the sum of $250, in four months after his decease, or that his executors should have $250 out of this devise, and his devisees should have the estate. There is no devise over, to make a conditional limitation. If the testator had intended that the estate should go to his executors, in default of payment within the limited time, he might, by a special devise over to them, have so framed his will, that such a result would necessarily follow. The effect of making them his residuary devisees or legatees, is not such as, in law, to create a limitation. 1 Wils. 138; 5 Pick. Rep. 539.

The main objection to the courts granting the relief sought, as urged by the counsel of the respondents is, the lapse of time, and an alleged change of circumstances. In considering these objections, it is to be observed, that Mary Carpenter has always been in possession of the estate, since the testator’s death. The respondents not only admit this, but they say they did not intend to disturb her possession during her life, because of their knowledge of her indigent condition. They therefore ought not now to complain of delay, because during this lapse of time they made no complaint; but on the contrary, having the power to enforce payment, by entering or claiming the estate for the forfeiture, they do not enter or claim; thus acquiescing in the delay, which they now urge as a bar to relief. If the complainants ought to have been relieved upon an earlier application, the respondents, in their answer, suggest a reasonable excuse for the delay, which seems to have been operative upon them, and ought therefore to be satisfactory to the court, viz: that Mary Carpenter was too poor to pay, and the executors thought so, and therefore did not ask for payment, nor disturb her in the possession of the estate.

And what is the change of circumstances which affects the *229 case, to render it inequitable now to grant relief? It is said the estate has now become more valuable. This change certainly does not operate to the damage of the respondents. Had there been an entry by the respondents for breach of the condition, ai^d an improvement of the estate by them, by reason of which the estate had increased in value, and then the complainants had come here for relief from the forfeiture, this argument might have weight; but here the estate has risen in value in the hands of the complainants. This is advantageous to the complainants, but we do not see how it injures the defendants.

The testator intended the executors should have $250 out of this estate. This sum they get with interest, in full compensation for delay of payment; thus, in effect, receiving all that the testator apparently intended they should have. The change of circumstances is to the effect that the other party will suffer more loss by forfeiture than if entry had been made before, but not that the executors will have the less, a just compensation now. In fact, this rise in value of.the land, in the hands of those to whom the testator intended it should go, by making greater the amount, over and above a just compensation, which a forfeiture would yield, renders more apparent the equity of affording relief.

This condition, according to the terms of the will, was to be performed by the person or persons who should first be entitled to the estate; and upon the testimony in the case, Luke Green, on whom, as trustee of Mary Carpenter, the performance devolved, was never informed that he was n'amed in the will. To this fact he testifies himself, as also, that had he known of the condition, he would have performed it within the time. ■ Add to this, the facts set out in the bill, that Mary Carpenter, for whose use during life the estate was vested in Luke Green, was, for a long time after the testator’s death, a feme covert, and subsequently was in feeble health, and relied, at the time the condition should have been performed, and subsequently, on one of those executors, who was her brother, as her adviser, (which matters are not denied in the answer,) and we think the circumstances of the case make a strong appeal to the court for the exercise of equitable pow,ers.

*230 On the whole, the case, we think, is one in which a court of equity, according to the settled course of decisions, will, almost as a matter of course, relieve. Story’s Equity Juris. §§ 1314, 1315, 1319; 2 'Cruise’s Dig.; Est. on. Condit. 29, 30, 31. It comes within the restricted rule contended for by Lord Eldon, in Hill v. Barclay, 18 Ves. 56, that relief may be granted against a condition to pay money, where nothing else is to be done.