
    Paynes v. Coles and Others.
    Thursday, October 11, 1810.
    1. Evidence — Record in Another Sait. — A record of one suit cannot be read as evidence in another, unless both the parties, or those under whom they claim, were parties to both suits; it being- a rule that a document cannot be used against a party who could not avail himself of it, in case it made in his favour.
    2. Evidence — Answer,—An answer in Chancery (though, in form, responsive to a question put in the bill) is not evidence, where it asserts a right, affirmatively, in opposition to the plaintiff's demand; but the defendant is as much bound to establish such assertion by independent testimony, as the plaintiff is to sustain his bill.
    3. Issue Out of Chancery — When Improper. — An issue out of Chancery ought not to be directed to try a claim altogether unsupported by testimony, or a title not alleged in the bill, but suggested in the answer, without proof. Neither is this rule to be varied by the circumstance that infants are interested.
    4. Chancery Jurisdiction — To Set Up Marriage Promise. —The aid of a Court of Equity ought not to be afforded to set up a marriage promise when the effect would be to disinherit (against the intention of the parties) the only issue of the marriage.
    
      5. Same. — Quiere, whether a Court of Equity ought, under any circumstances, to assist, to the prejudice of a posthumous child, the claim of devisees under a will (made before the 1st of January, 1787) by a testator who had no child living, and was ignorant that his wife was in a state of pregnancy ?
    John Payne and Mary Payne, infants, by Mary Payne, their mother and 374 next friend, filed their bill in the'x'late High Court of Chancery, on the 1st of March, 1796, against Walter Coles, Isaac Winston, and Lucy his wife, Garland Anderson, and Mary his wife, Thomas Price, executor of William Darracott, deceased, and John Syme, and Sarah his wife; setting forth that Williams Coles, late of Coleshill, in the County of Hanover, (being the father of three children, to wit, a son named Walter, and two daughters, Mary, the mother of the plaintiffs, and Lucy, the wife of Isaac Winston,) on the 4th of September, 1768, wrote a letter to Mrs. Darracott, the mother of Mary Darracott, to whom his son was then paying his addresses, informing her that the match would be very pleasing to his wife and himself; that he intended to give his son, immediately, to' the value of 3,0001. current money, in land, slaves, and other things; and, at his own and his wife’s death, he would leave him the land he then lived on, “with his possession in Ireland, and some more slaves,” &c.
    The bill farther stated that (whether be-fore or after the said letter was written, the plaintiffs knew not) the said Williams Coles told William Darracott, brother of Mar3' Darracott, that “if the match should take place, he would give his son at the time of the marriage his plantation in Goochland County, and sixteen or eighteen negroes, seventy or eighty head of cattle, and other stock upon the said plantation, and that at his death he would give his said son the plantation whereon he then lived, and other negroes, and some other estate; that the marriage took effect, but the agreement was not executed; that, some time in the 3rear 1769, Walter Coles, the son, departed this life, having made a will, in which, after bequeathing to his wife Mary all the slaves, horses, and all other things that he had with her as a marriage portion, and ten pounds current money, and to each of his sisters a mourning ring, he “gave and bequeathed to his father and mother all and singular the remaining part of his estate of any nature or kind soever, to them and their heirs forever;” that the defendant Walter was his posthumous son; he 37S having had no child living at *the date of the said will; which, as the plaintiffs were advised, passed his rights under the marriage agreement from his infant child to his father and mother. They were farther advised, that the father and mother took under the will as joint-tenants; that William Coles, the father, d3ring about the year 1781, intestate, his moiety survived to Lucy Coles, the mother; and that, upon her death in the year 1784, the whole right to the benefit of the said marriage agreement devolved (by virtue of the residuary clause in her last will) on the plaintiffs. The bill moreover set forth that William Darracott administered on the estate of Williams Coles, and Walter Payne qualified as executor of Lucy Coles; but that Darracott, as administrator'of her husband, had previous^' taken possession of her whole estate, (alleging that her lands had descended on the defendant Walter Coles, his nephew, as heir at law of the said Williams Coles, and that the slaves and personal property belonged to the estate of his intestate,) and made such distribution of the estate as to him seemed meet; leaving th« defendant Walter Coles in possession of the land, and far greater part of the other estate; * and allowing no part of it to the plaintiffs; thereby preventing Walter Payne, the executor, from performing the duties of his office; that the said Walter Payne, having gone beyond sea, had not been heard of for seven years; and thus, the plaintiffs had been deprived of all benefit from the devise aforesaid in their grandmother’s testament; notwithstanding she therein appointed Sarah Syme, wife of Col. John Syme, trustee and manager for them; the said Sarah having never interfered, under the trust, to have justice done them; that the defendant Walter Coles had held the estate, allotted him, ever since the distribution ; that William Darracott is dead, and Thomas Price, his executor, is the only person who can account for his acts in relation to these estates.
    The prayer of the bill was for an account of so much of each of the estates of Williams and Lucy Coles, as was received by the defendants, Walter Coles, Isaac 376 Winston, *and Lucy his wife, and Garland Anderson, and Mary his wife; for an account of the administration by William Darracott, to be rendered by the defendant Thomas Price, his -cu ; “that the said Walter Coles be decreed to convey to the plaintiffs all lands, whether in this country or in Ireland, to which they are equitably entitled under the above devise of the testament of their grandmother, and which (independently of the above recited letter and conversations, the testament of his father, and the testament of his grandmother) would have descended to him by right of inheritance, or any other title; and that the defendant, Sarah Syme, be compelled either to accept of or relinquish her trust aforesaid, and, in the former case, to execute the same agreeably to the principles of equity in like cases.”
    The defendant Walter Coles answered, saying that “it may be true that Williams Coles his grandfather did, on the 4th of September, 1768, write such letter as is set forth in the bill, but for greater certainty refers to such proof as the complainants can bring concerning the same: he has understood that the said letter was written at the instance of Mrs. Darracott, grandmother of this defendant; and that the said Williams was induced to write it by information received of her, or from some other relation of his mother, that her fortune was much more considerable than it was afterwards found to be. He admits that the marriage took effect, but denies that the said Walter Coles, this defendant’s father, became possessed of the property mentioned in the said letter. He further saith, that his said father, when he made his last will, had no knowledge of the pregnancy of his wife: and this defendant submits it to this honourable Court whether, as the said will was made when his father had no child, the subsequent birth of this defendant did not operate as a revocation thereof; but, if it shall be thought otherwise, he insists that, as his said father was not possessed of the estates mentioned in the said letter, the same did not pass by his will; more especially, as it evidently appears, from the will itself, and the 377 ’ then situation of the ^parties, that the said estates were not in the contemplation of the testator when the will was made. This defendant does not admit the parol agreement between his grandfather and his uncle, stated in the bill; and supposes that, if any such conversation took "place, it ought to be considered as having no effect, so far as the same is different from the letter referred to by the complainants.”
    The same answer farther states that '“Williams Coles, the grandfather, proved the will of the said Walter, whereof he was appointed executor, but never held any of the property, mentioned in his letter, under the devise from his son, but as his own several property; in like manner as if the said will had never been made; that Lucy Coles never held any part of it, except as widow of the intestate; and, if she made such will, (which, however, the defendant contested, having instituted a suit in Chancery to set it aside,) she never meant that this property should pass by it; that Darracott, the administrator, made distribution of the property of his intestate (as he had a right to do) between Mary Payne, 'the mother of the plaintiffs, Isaac Winston and Lucy his wife, and this defendant; they being the persons entitled thereto; that this defendant never has had possession of any property which he conceives to •have belonged to his grandmother, Mrs. Coles, and only received his share as heir and distributee of his grandfather; that the plaintiffs cannot set up any legal claim under the marriage contract alleged by them to have been made by this defendant’s grandfather, and he submits it to the Court, whether the same ought to be carried into effect, in equity, to the prejudice of the issue of the marriage, for whose benefit it must have been intended; insisting that, if the same ought to be performed, he, being the sole issue of the marriage, ought to receive the benefit thereof. He further saith, that, as no claim was ever set up under the said letter, either by his grandfather or his widow; and, as the complainants claim under the letter; he conceives himself entitled ‘to, and prays the benefit of the act of limitations.” I
    ^Garland Anderson and Mary his wife answered separately ; the former alleging total ignorance as to Mrs. Coles, or any of her affairs; the latter stating that, she did not remember ever to have seen Mrs. Coles’s will; had heard that a legacy was left her; but had never received it.
    Only one deposition was taken in the cause; and that went to prove the execution of Mrs. Coles’s will.
    The exhibits were the wills of Walter Coles and Lucy Coles.
    The plaintiffs also exhibited the proceedings in the suit in Hanover County Court, on behalf of the defendant Walter, (when an infant about two years old,) against Williams Coles, his grandfather; claiming the benefit of the marriage agreement. The bill in that suit relied upon the letter above mentioned as the foundation of the plaintiff’s claim; and the answer admitted the said letter to have been written; but contended that it ought not to be binding; having been produced by a deception as to> the amount of Mary Darracott’s fortune; and being unreasonable in itself; and that the will of Walter Coles operated as a release from the said agreement.
    Sundry depositions were taken, but no decision appears to have taken place.
    To the admission of the bill, and proceedings thereon in that suit, as evidence in this, the defendant Walter Coles, by his counsel, filed a written exception.
    The suit was dismissed, by order of the plaintiff’s counsel, as to the defendants Isaac Winston and Lucy his wife; .and, on the 4th of October, 1803, the cause coming on to be heard as to the other defendants, the Court dismissed the bill with costs; from which decree the plaintiffs appealed.
    The record also contains a copy of the proceedings in a suit brought in Hanover County Court by the defendant, Walter Coles, against the present plaintiffs and others, for the purpose of setting aside the will of his grandmother Lucy Coles; which suit was removed by a writ of certiorari to the High Court of Chancery, and de379 cided on the same *4th of October, 1803, by a decree dismissing the bilí with costs; from which decree no appeal was taken.
    In that suit, Mary Payne, one of the defendants. and daughter of Lucy Coles, alleged in her answer, (amongother things,! that the said Lucy was twice married; first to Cornelius Dabney, and afterwards to Williams Coles; that, by Cornelius Dabney, she had issue a son, William Dabney, who had issue several sons, of whom Isaac Dabney was the eldest, and he, dying in the life-time of the said Lucy, and after the death of his father, left issue several children, of whom William Dabney was his eldest son ; and that the said last-mentioned William Dabney (who is still alive) was, at the time of the death of the said Lucy, and now is, her heir at law; and, “as the estate came by the said Lucy altogether, or as to the greater part thereof, as her inheritance, this defendant is advised that, if the said Lucy had died intestate, and if the said estate had been left to pass by the rules of inheritance at the time of her death, the complainant never could have claimed it as her heir, so long as any of her descendants of the name of Dabney were in existence.”
    A number of depositions were taken in that suit; proving, on the one hand, that Lucy Coles’s will was duly executed, and, ■on the other, that she had no idea that the property now claimed belonged to her, but considered it as belonging to Walter Coles, her grandson. No evidence appeared, •either to support or contradict the allegation, that “the estate came by the said Lucy altogether, or, as to the greater part thereof, as her inheritance.”
    Warden, Nicholas and Wirt, for the appellants.
    Wickham, for the appellees.
    On the part of the appellants, the subjects in controversy were considered in two points of view:
    1. As to the real estate, which Lucy Coles held in her own right; and,
    2. As to the estate comprised in the marriage promise.
    *1. It must be clear that, if Lucy Coles held any real estate in her own right, it belongs to her devisees under her will. In the bill exhibited by, the appellee Walter Coles to set aside that will, he called upon the defendants, Mary Payne and others, to say, whether the said Lucy Coles in her life-time did not at all times declare that she considered the title to the land and other property which he held, derived from his grandfather, to be completely vested in him, independent of her, and that she could not dispose of the same by will or otherwise. To this question Mary Payne answered that Lucy Coles had said, (and this defendant moreover asserted that the fact was so,) that the greater part of the Virginia estate in question did not belong to him as heir of his grandfather, but was her own inheritance. In this particular the answer was responsive to the bill, and therefore evidence : at any rate, if not direct or conclusive, it was sufficient evidence to have produced a reference to a Commissioner, or a Jury, to ascertain the fact, for the benefit ■of the infants who were co-defendants. The decree was, therefore, erroneous in not ■directing such reference.
    2. As to the estate comprised in the marriage promise of Williams .Coles to Waiter, the appellants say that this promise gave to Walter Coles an interest which he had a right to dispose of either by will or contract; that he did dispose of it by his will to his father and mother jointly; that Lucy Coles took it by survivorship, and ■devised it to them. They do not claim, as being originally the objects of the marriage promise, nor by virtue of consanguinity, but as purchasers under him for whom the promise was made, and who exercised his lawful right in devising it.
    On the other side, it was contended, 1. That, since the appellants had no right to sue at law for the property in question, a bill will not lie in their behalf, for the specific execution of the supposed marriage agreement; their claim being highly inequitable : for a Court of Equity has a discretionary power of withholding relief, and will not compel specific performance in a hard case.
    
      *2. There is no sufficient proof of the agreement charged in the bill; for the record from Hanover is not evidence in this suit. It is true that the appellee claims under Williams Coles, the defendant in that suit, and was himself the plaintiff; but the appellants were not parties; neither was Lucy Coles (under whom they claim) a party; and the rule must be reciprocal. The record could not be used as evidence against her; and, therefore, cannot be for her. Besides, a bill in Chancery, when not sworn to, is merely suggestion of counsel, and not evidence against the plaintiff,  But, if it were evidence against an adult, it cannot be against an infant; for even the answer of an infant by his guardian, is not evidence against him. And, as to the answer of Williams Coles; he says he was deceived and imposed upon in writing that letter; and his statement must be taken altogether, 
    
    3. Admitting the agreement to be proved; the real estate agreed to be settled did not pass by the will of Walter Coles, as he had neither an equitable nor legal seisin ; and the personal estate being devised jointly to his father and mother, and being in their possession, the whole vested in the father, in his own right, and as husband, and no part survived to his wife.
    4. The birth of the appellee Walter Coles operated as a revocation of his father’s will, in reason, though not by authority. A subsequent marriage and birth of a child are a revocation: but no good reason can be assigned why, at common law, the birth of a posthumous child, for whom no provision is made in the will, should not be considered a revocation, as to such child; especially since, according to the case of Brady v. Cubitt,  an implied revocation may be rebutted by parol evidence of the actual intention of the testator. No authority can be shewn against the right of the posthumous child in such a case. In Yerby v. Yerby,  it was decided that, where a man had children at the time 382 of *the will, the subsequent birth of a child was no revocation; but that case was not like this.
    5. Supposing a right to have survived to the wife; the property did not pass, and was not intended to pass by her will.
    6. Possession having been delivered to the appellee in her life-time, and retained by him, the appellants are bound by length of time.
    7. The appellants as residuary legatees of Mrs. Coles are not entitled to sue on the death of her executor, but the suit can only be maintained by an administrator de bonis non of her estate.
    8. If their suit be maintainable, all the legatees of Mrs. Coles should have been parties.
    9. The suit has not been properly followed up against Price, the administrator of Darracott, and other defendants.
    
      In reply, to the first of these points, it was said, there was no injustice, or hardship, in the claim of the appellants. The marriage promise was made for the benefit of Walter Coles, between whom and Hiss Darracott the match was about to take place: not for the benefit of the issue; about whom nothing was said. Suppose it had been complied with, and a settlement made: Walter Coles might surely have sold or devised the property. In like manner, his devise of his interest in the promise was equally good in equity. The enforcement of marriage articles is uniform in Courts of Equity; the construction there being the same as at law; and this is always done according to the terms expressed in the articles. The cases of settlements are very numerous; and it will be found that the issue is alw.ays expressly provided for, where it is intended; and this is done by a covenant that the estate shall be conveyed to the husband' and wife for their joint lives, and afterwards to trustees for the benefit of the children of the marriage; to prevent the remainder in their favour from being defeated by alienation,  But, if this be not done, no case can be 383 found of a refusal *to decree execution of a marriage agreement, on the ground that the issue was not provided for, and would, therefore, lose the estate. In Chichester v. Vass, the suit was brought by Vass, in his own name, and he recovered ; though that case was not so strong as the present, in favour of the exclusive right of the husband. There are cases, too, which shew that Courts of Equity are not so active on behalf of the rights of issue, as it is supposed, even where designated in the settlement,  Courts do not enter into ideas of abstract justice in enforcing agreements, where parties are explicit. The circumstance, then, that the issue was not provided for, is no bar to our suit.
    It is not true, in all cases, that, where an action cannot be brought at law on an 'agreement, there a suit will not lie in equity for a specific performance,  On the contrary, if the contract be good at law, in its origin, and a Court of Baw, either from the situation of the parties, or from other causes, can give none or inadequate relief, the discretion of the Court of Equity is at an end, and it must give a decree. But, indeed, the question about specific execution does not occur in this case; the only question being whether Walter Coles had a right to devise his own property.
    2. As to proof of the letter: it is faintly denied, or rather admitted, by the answer of the defendant Walter.Coles. But if that be not sufficient, it appears from the bill filed in Hanover Court by his guardian, that the original letter was in his hands. The appellees, then, cannot be expected to produce it. The reason of the rule, which regards a bill as merely suggestion of counsel, cannot apply in this case. Neither ought the rule that depositions taken in a suit between different parties are not to be read to prevent our availing ourselves of the depositions by which the letter is clearly established. The reason of that rule proves it inapplicable. It is because the party against whom such depositions are offered has had no opportunity to cross-examine: but here the case was otherwise.
    *3. Possession was not necessary to give validity to the devise in the will of Walter Coles; for a possibility, if coupled with an interest, is devisable; and so^ also is any equitable interest,  If the devise had been to Williams Coles alone, it might, perhaps, have operated as a release of his engagement: but, as it is to him and his wife jointly, thereby instituting the right of survivorship between them, it must be considered as conferring a higher title. If it do not convey this equitable estate, there is nothing for it to operate upon : for it does not appear that he had any thing else to devise by the residuary clause in question. And the circumstance of his ignorance of his wife’s pregnancy, though not sufficient to vacate his will, is sufficient to indicate his intention to give all his rights to his father and mother.
    But it is objected that, with respect to the chattels bequeathed, they vested absolutely in Williams Coles, and did not survive. To this it may be answered, that Walter Coles’s claim was not a legal but an equitable one. Williams Coles never complied with, or executed, his agreement. The case, therefore, does not stand precisely on the footing of chattels given to husband and wife absolutely. He did no act to sever the jointure; and unless some act of that kind had been done, it subsisted. In 2, Vern. 683, a case is found where the right of survivorship to the wife took place as to money' vested, in mortgages and bonds, in the life of the husband. But if this point be against us, it does not preclude our having an account and decree for the real estate.
    4. The fourth point is clearly against the appellees: for although marriage and birth of a child, concurring, revoke a will,  either of those events singly does not. 
    
    5. It is said that Eucy Coles never considered herself as holding under Walter Coles’s will. But it is immaterial what are the impressions of parties of their legal rights: else what would become of the appellee himself, who brought a suit as claiming under the letter which in this suit he disclaims?
    *6. The 6th objection is founded in an error in fact; for, according to the bill, answer, and evidence, possession was not delivered to the appellee by William Darracott, the administrator, until after the death of Eucy Coles. In fact, she was in possession of all the estate at the time of her death ; in what character it is not for the appellee, to say.
    7. Walter Payne, the executor, having left the Commonwealth; there being no administrator de bonis non; all the estate of the testatrix being in the possession of the defendant Walter Coles; and the, plain tiffs, her legatees, being the only persons entitled to the property in q uestion ; they were authorized to sue as legatees.
    8. All the necessary parties have been made; for the other legatees claim no title to the property now in question.
    9. If the suit has not been properly followed up against Price, the administrator of Darracott, that is no reason for refusing us a decree against Walter Coles. We go against him for the land at any rate; and further proceedings may be directed against Price.
    Monday, November 5.
    
      
      Evidence — Record in Another Suit. — A record of one suit cannot be read as evidence in another, on the ground that the defendant and one of the plaintiffs in the latter suit, were parties to the former, and that the same point was in controversy in both; another plaintiff, and the person under whom both the said plaintiffs jointly claim, not having been parties to such former suit. Chapmans v. Chapman, 1 Munf. 398, citing with approval the principal case.
      On the same point, see the principal case cited in Brown v. Johnson, 13 Gratt. 650. See further, mono-graphic note on “Evidence” appended to Lee v. Tapscott, 2 Wash. 276.
      Where depositions in one chancery cause have been read in another, no formal order of the court permitting them to be read seems to have been made. McCoy v. McCoy, 29 W. Va. 811, 2 S. E. Rep. 819, citing Paynes v. Coles, 1 Munf. 373, and Chapmans v. Chapman, 1 Munf. 398.
      Judgment — Conclusiveness.—The principle is universally acknowledged that no one can be bound by a verdict or judgment unless he be a party to the suit, or be in privity with a party, or possess the power of making himself a party. The reason is obvious. He has no power of examining witnesses, or of adducing evidence in maintenance of his rights; in short, he is deprived of all means provided by law for ascertaining the truth and consequently it would be repugnant to the first principles of justice that he should be bc-mci by the result of an inquiry to which he i.-. altogether a stranger. Dent v. Ashley, 7 Fed. Cas. 496, citing Wood v. Davis, 7 Cranch (11 U. S.) 271; Davis v. Wood, 1 Wheat. (14 U. S.) 6; Paynes v. Coles, 1 Munf. 373; Turpin v. Thomas, 2 Hen. & M. 139; Jackson v. Vedder, 3 Johns. 8; Case v. Reeves, 14 Johns. 79. To the same effect, the principal case is cited in Baring v. Fanning, 2 Fed. Cas. 794.
    
    
      
      Issue Out of Chancery. — Whatever may be the practice elsewhere as to the cases appropriate for an issue, and in which the discretion of the chancellor is wisely and properly exercised in directing it, there can be little doubt that in Virginia, where the allegations of the bill are expressly and directly denied in the answer, and are wholly unsupported by proof, or supported by the evidence of one witness only, the court should not direct an issue, but should dismiss the bill. Wise v. Lamb, 9 Gratt. 305, 306, citing the principal case, and Pryor v. Adams, 1 Call 382. See further on this subject, foot-note to Pryor v. Adams, 1 Call 382; monographic note on “Issue Out of Chancery” appended to Lavell v. Gold, 25 Gratt. 473. The principal case is also cited in Lewis v. Mason, 84 Va. 738, 10 S. E. Rep. 529.
    
    
      
       Doe, lessee of Bowerman, v. Sybourn, 7 T. Rep. 2, 3, Peake’s Ev. 54.
    
    
      
       Peake’s Ev. 55.
    
    
      
      Note. By our act of 1785, c. 61, (see 1 Rev. Code, p. 160, 161,) such is now the law, as to every last will and testament made when the testator had no child living. — Note In Original Edition.
    
    
      
       Dong. 39, 40.
    
    
      
       3 Call, 334.
    
    
      
       2 Bl. Com. 171.
    
    
      
       Cann v. Cann, 1 Vern. 480; Clarke v. Sampson, 1 Vezey, 100, 2 Com. Dig. 125.
    
    
      
       Cannel v. Buckle, 2 P. Wms. 244.
    
    
      
       Jones v. Roe. Lessee of Perry, 3 T. Rep. 88.
    
    
      
       Perry v. Philips, 1 Vezey, jun. 254.
    
    
      
       2 Bl. Com. 181.
    
    
      
       Christ’s Hospital v. Budgin et ux.
    
    
      
       Wilcox v. Rootes, 1 Wash. 140.
    
    
      
       7 Bac. 365; (Gwill. edit.), Shepherd v. Shepherd. Doug. 36.
    
   The Judges pronounced their opinions.

JUDGE TUCKER.

The history of this cause in all its branches, as spread upon the record, is complicated, and most of the facts appear very uncertain.

The bill charges that Williams Coles, grandfather of the appellee, Walter Coles, the elder, being informed that his son Walter was paying his addresses to a young lady whom he supposed to be entitled to a considerable fortune, on the 4th of September, 1768, wrote the following letter to Mrs. Darracott, then a widow, and mother of the young lady.

Coleshill, Sept. 4, 1768.

“Madam,
“My son informs me he is paying his respects to your '^daughter which is very pleasing to his mother and me. I intend giving him now to the value of 3,0001. current money, in lands, slaves, and other things. At mine, and his mother’s death, will leave him the land I now live on, with my possessions in Ireland, and some slaves. I am, &c.
“W. Coles.”

It may not be improper here to state, that Coleshill, the place where the writer then lived, is affirmed in the answer of Mary Payne, (the defendant in one of the suits, which were heard together in the Court of Chancery,) to have been the property of Lucy Coles, the wife of Williams Coles, the writer of the letter: and that she, having been married to a former husband named Dabney, had by him a son called William, who dying, has left a son of the same name still living, and heir at law to the said Lucy Coles, his grandmother.

The marriage between Walter Coles and Miss Darracott took effect not long after the date of the above letter. On the 28th of March, 1769, Walter Coles, being ill, made his will, which was proved and admitted to record in October following, by which he gave to his wife the property which he had with her as a marriage portion, and ten pounds for mourning; and then “gave and bequeathed to his father and mother all and singular the remaining part of his estate of any nature or kind soever, to them and their heirs for ever, and constituted his father his sole executor.”

A few months after this, Walter Coles, the present appellee, and the only issue of that marriage, Was born; not long after which a suit was brought in his name and behalf, by Isaac Winston, his guardian, for a specific performance of the promise contained in the before-mentioned letter, then in the complainant’s possession. Williams Coles, the defendant, put in an answer thereto, admitting the letter; which is sworn to the 17th of September, 1771. The deposition of Elizabeth Darracott, the complainant’s grandmother, appears to have been taken the 8th of Eebruary 387 'preceding; but by what authority does not appear. That of William Darracott, her son, appears to have been taken the first of June, 1780. The magistrates certify that it was taken in that suit, “according to law.” The suit appears to have been no further proceeded in. Mr. Wickham, of counsel for the appellee, Coles, objected to the admission of that bill as evidence in the cause. This I think brings the case within a narrower compass.

Williams Coles died intestate, leaving the appellee, Walter Coles, his heir at law: he left also two daughters, from one of whom the appellants, John Payne and Mary Jackson, are descended, the latter being the daughter of Mary Payne, sister of John, the other appellant.

Lucy Coles, the widow of Williams Coles, and grandmother of the appellant, Walter, being the mother of his father, and one of the objects of his bounty in his will, survived her husband, Williams Coles, several years and died testate, having made a will bearing date March 5th, 1784, which was proved and admitted to record, May 5th, 1785. By that will, after several inconsiderable legacies, “she gave all the remainder of her estate, also her ready money, to her grandchildren Mary and John Payne; (above named;) also one hogshead of tobacco which was in hand.” She also appointed Mrs. Sarah Syme, wife of Col. Syme, trustee and manager for her daughter, Mary Payne (who then resided in Philadelphia) and her children, (John and Mary aboved named,) and appointed several executors; of whom, as it is said, her grandson Walter Payne alone qualified, and soon after removed himself out of the state, and went beyond seas, without ever possessing himself of any part of her estate, and has never since been heard of.

- The bill, which was originally brought by John Payne and Mary Payne, infants, by Mary Payne, their mother and next friend, suggests that William Darracott, the uncle of the defendant, Walter Coles, having obtained letters of administration on the estate of Williams Coles, the deceased husband of Lucy, previously to the probate of her will, had 388 *taken possession of her whole estate, alleging that her slaves and personal estate were the estate of his intestate Williams, her husband, and that her lands had either descended upon his nephew, Walter Coles, as heir at law of the said Williams, or was his right in consequence of the before-mentioned letter. That Darracott, having made a crop on the land, afterwards made such a distribution of the estate, as to him seemed meet, leaving the defendant, Walter Coles, in possession of the land, and far greater part of the other estate. That Darracott is since dead, having appointed the defendant Price (now also dead) his executor, who took upon himself that office.

The appellants in their bill claim the benefit of the marriage promise contained in Williams Coles’s letter before mentioned; and also of a verbal promise which they allege to have been made by him to William Darracott, brother to the lady whom Walter Coles the elder married, viz. that, if the marriage should take effect, he would give his son Walter, at the time of his marriage, his plantation in Goochland County, and sixteen or eighteen negroes, with the stock upon that plantation.

The appellee, Walter Coles, in his answer to this bill, says, that it may be true that Williams Coles, his grandfather, did write such a letter as is set forth in the bill; but, for greater certainty, refers to such proof as the complainants can bring concerning the same. He has understood that the said letter was written at the instance of Mrs. Darracott, his grandmother, and that the said Williams was induced to write it by information received from her, or from other relations of his mother, that her fortune was much more considerable than it was afterwards found, to be. In various other parts of his answer he speaks of that letter, and of its operation and effect, in such a manner as appears to me to manifest no doubt of its having been actually written, as charged in the bill. He positively denies the verbal promise.

*It will be proper to state, that, about six months after the commencement of this suit in the High Court of Chancery, the defendant, Walter Coles, instituted a suit in Chancery in Hanover County Court, against Mary Payne, then a widow, and the appellants, John and Mary, her children, then infants, and others, the object of which was to set aside the will of Huey Coles, his grandmother, whose heir at law he states himself to have been. This suit, on the petition of Mary Payne, was removed by certiorari into the High Court of Chancery. The defendant, Mary, there filed her answer, in which, among other things, she denies that Walter Coles, the complainant in that suit, is heir at law to her mother, Huey Coles; William Dabney, her great-grandson, then living, being her heir at law: and avers, that the estate which he has possessed himself of, or the greater part of it, was her mother’s inheritance. This answer imports to be the joint and separate answer of herself and her children, John and Mary, above named. Several depositions were taken in that cause, and both causes were set for hearing by the counsel for the appellants. They were heard together, and the Chancellor dismissed both bills. Coles did not appeal from the decree against him in the suit in which he was plaintiff.

Although, by the acquiescence of the plaintiff in the decree pronounced in the last-mentioned suit, the decree in that cause cannot be reviewed here, yet as both suits related in fact to the same subject matter, (being in the nature of cross causes,) and were heard together, I am of opinion that the record and proceedings in that suit are so far to be regarded as a part of the record in that which is now before the Court, as that-the evidence arising out of the record may be applied by the Court in the consideration of the case before us. But, as to the record in the suit broug-ht in Hanover County in behalf of the appellee, Walter Coles, then an infant of two or three years of age, by Isaac Winston his guardian, against Williams Coles, his grandfather, it appears to me that Mr. Wickham’s 390 exception to the admission of it *as evidence in this suit was very well founded; there being no sort of privity that I can discover between the present appellants and the defendant in that suit. But, although that record, for the reason just mentioned, ought not to be admitted as evidence in this cause; yet it furnishes a circumstance which, I conceive, might have led the Chancellor to direct an issue to determine whether Williams Coles did, or did not, write the letter charged in the appellant’s bill; inasmuch as the object of the bill, thus brought by the guardian of the appellee, was to establish the existence of that very letter, and to obtain a specific performance of the promise therein contained, in behalf of his ward: referring to the said letter as then in the complainant’s possession, and the answer of Williams Coles to that bill, which answer is on oath, confesses that he did write such a letter.

The letter of Mr. Williams Coles to Mrs. Darracott (as charged in the bill) contains, in my opinion, a promise founded upon a valuable consideration, the proposed marriage between his son and her daughter, which, although not made either to his son, or to the young lady, would, upon their intermarriage, enure to the benefit of both; and might also enure to the benefit of the issue of their marriage, if not performed during the continuance of it; which promise a Court of Equity might enforce in such manner as might be most beneficial for the parties claiming and entitled to the benefit thereof: for, as the former part of the promise contained no specific description of the things meant to be given as a portion immediately upon the marriage, but merely a promise of giving lands, slaves, and other things, to the value of 3,0001. ; if Walter Coles had died intestate, leaving his wife and several children living, I conceive that, upon a bill brought by these parties against the grandfather for a specific performance of his promise, a Court of Equity would have decreed such a performance thereof (by apportioning the lands, slaves, and money to be conveyed, purchased or paid,) as would enure to the benefit, not only of the heir at law, but of the younger children, and the widow: 391 *the marriage portion, which she brought, being one of the inducements to the promise; and the younger children entitled to participate, with the heir, in whatever slaves or personal property might have been intended to be given. As to Coleshill, if it belonged to the grandfather, that part of the promise would have enured exclusively to the benefit of the heir at law. So, probably, would the promised possessions in Ireland. With which we have nothing now to do.

Again; as this was a promise which a Court of Equity would enforce, and execute, so, also was it capable of being released, entirely, by the husband in his life-time; or by his last will and testament wherein he should make such a provision for his widow as she should accept. It might be questionable how far a release made by a last will and testament would in this case have barred the widow’s claim to a specific execution of a marriage promise, made in consideration of the portion which she brought to her husband, if she had renounced all benefit under the will of her husband, and brought a bill against his father for the performance of his promise: but, as she did not, but has altogether acquiesced under her husband’s will, it is unnecessary to consider that question.

It appears that the devise in Walter Coles’s will o£ all and singular the remaining part of his estate of any nature or kind soever to his father and mother, and their heirs for ever, operated as a release to the father, of the obligation contained in his letter to Mrs. Darracott, as far as the same was not executed, in his life-time, by the gift of lands, slaves, and other things, to the value of 3,0001. : for, quoad hoc, the promise was a chose in action; and, by a bequest thereof to the husband and wife jointly, if the subject thereof had been in the hands of another, and the husband had received it, or reduced it into possession, the whole would have rested in him jure mariti. But the husband being the person liable to the action on account of this chose in action, and the same being given 392 to him and his wife, "the action is thereby extinguished forever: for he can neither sue himself, nor can his wife sue him: the bequest, therefore, must operate as a release; for if an action be released for an hour only, it is extinct for ever,

But, with respect to the land at Coleshill, if it, in fact, did belong to Williams Coles, the promise, on his son’s marriage, vested in him an equitable title to the same on his father’s death, which was devisable by his will, according to the authority of Greenhill v. Greenhill, 2 Vernon, 679. The same, I presume, may be said of the possessions in Ireland. In this case, then, there being a devise in fee-simple to husband and wife, they were properly neither joint-tenants, nor tenants in common: for, being considered as one person in law, they could not take the estate by moieties, but both were seised of the entirety, per tout et non per my; the consequence of which was, that neither husband nor wife could dispose of any part thereof without the assent of the other, but the whole remained to the survivor, So that, whether the Coleshill lands were originally the property of Williams Coles, of his wife Buey, the fee-sim - ple thereof was in the latter at the time of making her will, and passed to the appellants under the residuary clause in her will. But, as to the slaves and personal property of Walter Coles, the son, I conceive that, if they were reduced into possession by his father in his life-time, as legatee, (and not merely as executor of his son,) the right of his wife thereto was merged in the marital rights of the husband ; and consequently did not survive to her as the right in the lands would.

But here we must consider an objection, upon which the decree of the Chancellor, dismissing the appellant’s bill, was probably founded, viz. that the existence of the letter from Williams Coles to Mrs. Darracott, as charged in the bill, is neither admitted by the answer, nor proved by any other evidence whatsoever; and, secondly, that it is not proved that the inheritance of Coleshill was in Mrs. Buey Coles, instead of her husband.

*It is very true that the defendant Walter Coles has not in his answer expressly admitted the letter; neither has he directly or indirectly denied it. He refers, for greater certain!}', to such proof as the complainants can bring concerning the same; and, as I have before observed, speaks of the letter in various parts of his answer in such a manner as manifests no doubt of its existence. The appellants, or their counsel, probably relying that the bill exhibited by the appellants’ guardian for the purpose of establishing and .enforcing a specific performance of the promise contained in that letter, would be admitted as evidence not only to establish its existence, but the fact that it was in the appellee’s possession, have not given themselves the trouble to exhibit any other proof of it. Under these circumstances, I doubt whether the Chancellor ought not to have directed an issue to inquire whether such a letter was ever written by Williams Coles, or not. So, also, with respect to the title which Buey Coles had to the estate at Coleshill, which her daughter Mrs. Payne, one of the defendants in the cross-bill, who answered in behalf of the appellants, her children, as well as of herself, states to have been the original inheritance of her mother. This, as not being responsive to any direct charge in the bill, may not be such evidence as is sufficient to establish that fact; and yet I am inclined to believe it ought to have led the Chancellor to direct an inquiry into the nature of her title to that estate; as also, what other estate real or personal she was seised or possessed of, as her own property, at the time of making her will; the residuary clause of which appears to me to furnish sufficient reason for such an inquiry, and to be sufficient to pass the same to her residuary legatees.

I am, therefore, of opinion that the decree of dismission ought to be reversed, and the cause sent back, with directions conformable to what I have said.

JUDGE ROANE.

The counsel for the appellants rightly considered this case as under two aspects; 1st. As relative 394 to *any right to real property which the appellants, as claiming under old Mrs. Coles, may have by virtue of the letter mentioned in the proceedings; and, 2dly. As to such other real property as that lady might have had a right to as of her own separate inheritance.

As to claims to personal property, it is not shown nor pretended that any such existed in her favour which were not reduced by her husband into possession during the coverture.

With respect to both the first-mentioned descriptions of claims, the first question is, whether the proceedings in the suit brought by the appellee against his grandfather during his minority in Hanover Court, to which his grandmother was no party, and which is particularly objected to as evidence by the appellee, in the court below, were competent to bind her; and I am of opinion they were not, inasmuch as in respect of real propert3r a wife has, as it were, a separate existence, and therefore must be made a party to a suit respecting it before it can bind her. It is also a rule of evidence that no person can take the benefit of the proceedings in any suit, or any verdict, who would not have been prejudiced thereb3’, if it had gone against him. The consequence of this principle applied to the present case is, that the appellants, as claiming under old Mrs. Coles, cannot give in evidence any of the proceedings in the before-mentioned suit: there is, consequently, no testimony whatever left remaining in the cause, to establish the existence, or the extent of the marriage promise on which the appellants’ pretensions are bottomed: the admission of the appellee (from report) of the possibility, or even probability,of such a letter,cannot have such effect, as he expressly calls on the appellants to prove their case in this particular, and in truth admits nothing, as to the purport or extent of that letter. The claim of the appellants, therefore, as arising under the marriage promise, is left without an3r foundation to rest on.

With respect to a claim of land as of the separate inheritance of old Mrs. Coles, that seems to be a new idea. Such 395 *a claim is not advanced, nor charged, in the bill before us, and is wholly unsupported by any testimony, if we except some general expressions, as to this point, of Mrs. Payne, the guardian of the appellants, in her answer to the suit brought in Hanover Court, to set aside old Mrs. Coles’s will: but the rule is well settled, that the answer of a defendant in Chancery is not evidence where it asserts a right affirmativelv in opposition to the plaintiff’s demand, but that, in such case, he is as much bound to establish it by independent testimony as the plaintiff is to sustain his bill. On this subject I would refer to the case of Beckwith v. Butler, 1 Wash. 224, as expressly, in point. In that case an executor, when called on to account and to say what were the particulars and amount of the estate of the testator, swore that a part of that was his (the executor’s) property, by reason of a gift to him by the testator; and there being no other testimony of this gift, it was held by this Court to be monstrous to permit an executor to swear himself into a part of the testator’s estate.

I must, therefore, also say that there is no evidence in this cause of any separate property having existed in old Mrs. Coles, in anv of the lands of which her husband was possessed. The general calls in the appellee’s bill in Hanover Court which were •relied on to justify the answer in this particular, on the ground of its being responsive to the bill, are perhaps far less competent to have that effect than the call for an account was in the case of Beckwith v. Butler.

I am of opinion, therefore, to affirm the Chancellor’s decree, upon the testimony in this cause: but, were this testimony even supplied, my opinion on the merits would not be different.

Admitting that, in point of sheer law, the interest of this land would have passed (had the land been ascertained and identified) both by the wills of Walter Coles and old Mrs. Coles, I am strongly inclined to believe that in neither case was it intended. With respect to the former will, we are now in the dark; but with re-396 spect to the latter, while *there is, on one hand, no iota of testimony, to shew that the testatrix ever considered this as her property, there is on the other hand abundant testimony proving that she considered it as the property of the appellant. Under these circumstances, therefore, the aid of a Court of Equity ought not to be afforded to frustrate the expectations of the testatrix herself, as well as wholly to disinherit, in favour of strangers, the only issue of that marriage, to further and promote which the promise in question is supposed to have been made. Besides, independent of all testimony on this point, it is scarcely credible, as upon the face of the will itself, that this property was contemplated: for, while this good lady was particularly parcelling out her shoebuckles and teaspoons, &c. among her descendants, it is hardly to be believed that she would not have also particularly designated this immense interest, had it been so designed or intended.

With respect to directing an issue as to the marriage promise in this case, we are told, 2 Fonb. 494, that, where the evidence is full, the Court will not direct an issue at law at all: and so, e converso, I presume, an issue will not be directed, when the claim is altogether unsupported by testimony, which is the case before us.

As to an issue respecting Mrs. Coles’s separate inheritance, we are told in the same book,"p. 495, that an issue ought not to be directed to try a title not alleged in the plaintiff’s bill: and, i lthough it is added, by way of exception, that if a matter does appear to the Court, at the hearing, which goes to the very right, the Court will sometimes order an issue to try it; yet in the case before us, the matter in question does not legally appear to the Court, by reason of the objection to the affirmative character of the answer in this particular as aforesaid.

JUDGE EUEMING.

The claim of the appellants to the estate in controversy is founded on a letter, containing a marriage promise, charged in their bill to have been written by Williams Coles, grandfather of the appellee, and addressed to Elizabeth Darracott, when a marriage was 397 about *to take place between Walter Coles, son of the former, and Mary Darracott, daughter of the latter, (which marriage took effect,) and the subsequent will of Walter Coles, the son, dated the 28th of March, 1769. And they come into a Court of Equity to assert their right.

The first point made in the cause, by the appellants’ counsel in their statement, is of seeming importance, to wit, “that Williams Coles could dispose of no part of the lands which descended to Lucy his wife, by inheritance,” or to which she was entitled in her own right “by purchase.” But there is neither proof, nor charge in the bill, that any of the lands in the seisin of Williams Coles, were either the inheritance or purchase of Lucy his wife; and all that appears in the record on that subject is in the answer of Mary Payne, to the bill of the appellee to set aside his grandmother’s will; wherein she uses this expression — '“notwithstanding that the greater part of the Virginia estate, then in question, and now in question in this Court, was the inheritance of the said Lucy:” which I conceive to be a mere idle suggestion that ought to have no effect on the cause.

It is the unanimous opinion of the Court, that no part of the record in the suit brought in Hanover Court, by the guardian of the appellee, in his behalf, in the time of his early infancy, is proper or admissible evidence in this cause: and that being altogether rejected, it may, with propriety, be asked, where is the evidence to be found to prove the existence of the letter, or to substantiate the marriage promise charged in the bill? There is none that proves it to my satisfaction. And, as to directing issues to try whether any of the land in question was the inheritance of Lucy Coles, the appellee’s grandmother; and whether such a letter from Williams Coles to Mrs. Darracott, as stated in the bill, did exist; I think it improper to direct an issue to try any fact not charged in the bill; and I am not for hunting evidence that may tend to deprive an only child of the estate and inheritance of his father, in whose 398 'x'will (it must be obvious to every one) he was pretermitted, solely, for want of knowledge in the father, when he made his will, or at the time of his death, that the mother was in a state of pregnancy. Any other supposition would be against every principle of justice, natural affection, and humanity. Nature has implanted in the birds of the air, and in the beasts of the field, a strong affection, and tender re1 gard for their own offspring. And, had the marriage promise been sufficiently proved, as stated in the bill, I might, perhaps, have been of opinion that, in equity, it ought to operate in favour of any issue that might be the fruit of the marriage; for such issue must, undoubtedly, have been in the contemplation of thp parties to the contract at the time of the making it: and 1 should have made a long pause, before I could have decided in favour of the appellants, to the exclusion of the appellee from any part of the estate, rights and interests of his father. And such have been the impressions of our Legislature on the subject, that, so long ago as the year 1785, in the “act concerning wills and the distribution of intestates’ | estates,” ample provision is made for posthumous children, and such as are pretermitted in any last will and testament, though in life at the death of the testator.

I am of opinion, upon the whole, that the decree is correct, and ought to be affirmed. 
      
       See Tabb v. Archer, 3 H. & M. 399; Chichester’s Ex’x v. Vass’s Adm’r, ante, p. 98.
     
      
       Co. Litt. 280, a.
     
      
       Prec. in Ch. 330, S. C.; 1 Pow. on Devisos, 205.
     
      
       2 Bl. Com. 182.
     
      
       See Wallace v. Talliaferro, 2 Call, 470.
     
      
       2 Bac. 616 and 1 H. & M. 174, Baring v. Reeder.
     
      
       1 Rev. Code, c. 92, s. 3.
      
     