
    COURT OF APPEALS,
    JUNE TERM, 1798.
    T. T. Simmons vs. Hill, et al.
    Appear from a decree of the court of chancery dismiss-, ing the hill of complaint,
    The bill states, that Charles Drury, deceased, being seised and possessed of a considerable real and personal estate, on the 7th of August 1740, duly made and executed Ms will in writing, whereby, among other things, he devised to his daughter, Sarah Drury, and the heirs of her body lawfully begotten forever, all the land which he held between the main road, &c. called Drury’s. Adventure, Szc. That soon after, in the same year, the said Sarah Drury intermarried with Abraham Simmons, by whom she had two children, viz. a daughter named Betheridge^ and a son named Abraham, who was the father of the complainant, ‘ That the said Abraham, the grandfather of the complainant, died in the year 1745, having first made his will in writing, whereby, with the consent of his wife Sarah, (devisee of the said Charles Drury,) he devised the ’and aforesaid to Ms two children Betheridge and. 
      Mraham, and their heirs forever, equally to he divided between them: And in consideration that his said wife had consented to the said devise, the said Mraham, hy his said will, did devise to his said wife one half of all his personal estate, and constituted her his whole and sole executrix; and appointed trustees to see his said will truly executed. That the said Sarah proved the will, and obtained letters testamentary, and returned an inventory of the personal estate, in the year 1746, to the amount of 693h 9s. Od, Maryland currency, dollars at 6s. each; anti about four years afterwards she returned an additional inventory, with Mel Hill, with whom she had intermarried, to the amount of 2411. 7s, 6d, like money, making in the whole the sum of 9341.16s. 6d. like money; one half of which said sum, hy the will aforesaid, belonging to the two children of the said Mraham, viz. Betheridge and Mraharn, That there was a considerable sum of sterling money due to the said estate, and which was receive;’ by the said Mel Hill, of which m account appears to have been returned, and lie possessed the whole personal estate until the i ime of his death, which happened in the year 1758. That before his said death, he made Ms will in writing, by which, after having devised away a considerable estate, all of which he acquired during his marriage aforesaid, he constituted the said Sarah, his wife, whole and sole executrix thereof, and directed by his said will, in a particular manner, that the said Betheridge and Mr< ham should be paid without fraud.
    That in the year 1760, or thereabout,*, Charles Brury, surviving*, trustee under the will of Mraham Simmons aforesaid, purchased of ike late Kinsey Johns, two tracts of land in Anne-Arundel county, called «Birkkea&’s Parcel,” and '-Birh he ad’s Meadovos,” containing 600 acres, or thereabouts; and knowing the intention of Ms said sister, Sarah Hill, to provide fo.i* her son Mraham, he recommended to her to dispose of the laud in Prince-George’s county, entailed on her and the heirs of her body by the said will of her father Charles Drury, and to purchase, with the money arising from the sale thereof, about one half of the land which he had purchased of the said Kinsey Johns, the same lying more convenient for her son Mraham Simmons, the complainant’s father, in lieu of the said land in Prince-George’s county, which would have devolved on the said Mraham on the death of his mother; and the said Sarah, upon consulting with her said brother, who was desirous to seethe will of the said Mraham carried substantially into effect, did consent to sell the lands in Prince-George’s county, and purchase a part of the lands bought as aforesaid by Charles Drury of Kinsey Johns, for her son, in lieu thereof; and the said Sarah Mill, in pursuance of such her determination, sometime in the year 1761, suit fered a common recovery of the said lands in Prince-George’s county, and disposed of them, and conveyed the same to William, Bowie, and agreed with the said Charles for the purchase of “Birkhead’s Parcel,” containing about 300 acres, in Anne-Arundel county, for her said son Mraham. The said Mraham, father of the complainant, was accordingly put in possession of the same on his arrival to full age, Avhich happened in the year 1765. That the said Charles paid the full consideration for the said lands; but the said Johns dying before any conveyance was made of the said lands, either to Charles Drury avIio purchased the same, or to the said Sarah Hill, or to the said Mraham for whom the same were purchased, a bill was filed in this honorable court against the heirs at law of the said Johns, to obtain a decree for a conveyance of the said lands, and a decree was obtained, but no deed was executed in the lifetime of the said Sarah or Mraham, the said Sarah conceiving that nothing more was necessary after a decree was obtained. That the said Sarah, intending and considering that the said land called “Birkhead’s Parcel” as her son Mraham’s property, and the said Mraham believing it to be bis own, made sundry valuable improvements thereon, and lived on it, using it as his own, until the time of his death, which took place in the year 1782. That in the year 1777 a further agree-, menttook place between the said Sarah and the said Mraham, that in consideration of the latter’s releasing tp the former, all his part of his father’s personal estate, &c. she. would devise the said last mentioned tract to the said Mra - ham; and she did, by her will, devise the same land to the. said Mraham and his heirs, by the name of “Birkhead’s Meadow,” and “Birkhead’s Parcel,” containing about-300 acres; and the said Abraham executed such release accordingly — both the will and agreement were datedtheTthof May, 1777. That the said will was placed in the hands of the Revei'cnd Walter Magowan, who was consulted, and who drew the said will and agreement, and who kept the same until after the death of the said Mraham; but what has become of the said will is unknown to the complainant. That the said Sarah and Walter Magowan, are both dead, and that.since the death of the said Sarah an instrument of writing has. been exhibited to the orphans court of Anne-Arundel purporting to bé the last will and testament of the said Sarah, but which is not the last will and testament of the said Sarah, in execution of the agreement aforesaid. That the said Sarah was an unlettered woman, and the said will obtained by fraud, and the same ought to bp decreed null and void by this court, for the reasons before stated. By the said last mentioned will, the said land is devised to Susanna Hitl and Sarah Hill. two of the daughters of the first mentioned Sarah. That the said Johns has been prevailed on to convey the said land to the said Susanna and Sarah, who brought an action of ejectment, and recovered judgment for possession, &c. Prayer for an injunction against the judgment, &c. and for general relief.
    The answers deny every material fact alleged in the bill. ■ — A commission issued and testimony taken and returned.
    Hanson, Chancellor, (December term, 1795.) Having heard the arguments of counsel, observes in his decree, that «the first thing which forcibly strikes his mind is this- — The complainant, praying the benefit of a contract or transactions between Sarah Hill and Abraham Simmans, does not state that he is either heir or devisee. The defect of the bill is not supplied by the answers; nor does it even from the testimony appear that he is either heir or devisee of the said Abraham, under whom he applies for relief. That the said Abraham had an equitable claim to the lands in question, arising from the will of his father Abraham, and the conduct of his mother relative to that will, is a point relinquished with much candour and propriety on the part of the complainant.
    Supposing then the bill amended, Sec. and the complainant heir at law of Abraham, who died intestate; supposing then a fair, honest agreement, made through Magowan’s agency, between Abraham, and Sarah Hill his mother, in consequence of which he released all claim to his father's personal estate, and she executed a will, attested as it ought to be, devising unto him and his heirs; suppose that will not to have been cancelled, destroyed or i*evoked, by the testatrix; inasmuch as the devisee died before the testatrix, nothing could pass by that will to his heir; the devise was absolutely void, and it was necessary for Mrs. MU, if she did not chuse to die intestate as to the land, to execute another will. When an agreement is fairly made, and every aiiicle of it performed, what more is incumbent on either party? To give effect to what ought to be construed the intent. If the full execution of a contract, according to Us letter, does not operate so as to give every advantage which might in case of subsequent events proving different have been derived to one of the parties, is this court to direct the other to do that which ought in prudence or justice to have been stipulated? Is it to construe the will to have been not only an irr vocable Instrument, but an agreement, that in case Abraham should not he the longest liver, Ids mother should contrive that Ms heirs or devisees, after his death, should have a fee in the land; if so, the will amounted to an agreement to make just so many wills as circumstances should require as for a deed, to settle the land according to the spirit of the contract. It will scarcely be contended, that if after the execution of the will, and release in consequence of the agreement,- Abraham had filed a bill for relief, he might have obtained a decree obliging her to convey. The depositions taken on the complainant’s part? tend to prove, that she actually persisted in a refusal to settle ihe land by deed. There is no direct testimony respecting' the agreement which is said to have been brought about by Mr. Magote an, and to have produced the will and release. Let bis declarations be taken for evidence, and they do not prove the intention of the parties to go beyond this — “ Mrs. HUI shall execute a will devising the land “ to Abraham and his heirs; in consideration thereof, Abraham shall execute a release of Ms claim to his part « of his father’s personal estate; both instruments shall “ be delivered to Mr. Magotvan; if Mrs. Hill shall die “ without revoking- her will, and it shall take effect, the « release shall ho delivered to her representative. The ee difference between a mother and her son will thus be iS properly adjusted.”
    . This is certainly the most rational idea to be formed from the testimony, and the conduct of the parties has no small tendency to confirm it. The will was given up to the testatrix when it could not possibly avail; and the release was delivered to Abraham’s representative.
    Dismissing then all supposed equity arising on the will of old Abraham, or on the will of Mrs. Hill, and the release of her son Abraham, it remains only to inquire, whether, at any time, Mrs. Hill made such a contract for vesting in her said son a title to the land as this court ought to cany substantially into effect?
    No writing, which contained such a contract, has been either produced or alleged. She desired, it seems, certain persons to bear witness that the land was. purchased for her son. She certainly did not by that alone bind herself to convey. But it is said that she entered into a verbal agreement with her brother, who undertook for Abraham? (then a minor,) to give him the land in consideration of Ms relinquishing the claim aforesaid; that she having given him possession of the land, which he used and improved? as his own,, until Ids death, and he having executed a release, there can be no doubt that the case is that of an agreement by parol, which this court ought to execute.
    Tbe great object of the act to prevent frauds and perjuries, was to provide that agreements -be made with deliberation to prevent misconception of agreements; and to prevent men from setting up agreements which never had been made. It is admitted, that when a fair, honest, verbal agreement, for the sate of land, is alleged in the Mil, and admitted in the answer, or when it, appears clear* ly that such an agreement has been made, and has been performed on one part, or something has been done in pursuance of it, this court will decree a conveyance immediately, or on the proper terms.
    But what is the present case? Suppose even a parol agreement established between Mrs. Bill, and her brother acting for her soaf that such an agreement was binding on her, although certainly not binding on her son, or on her brother. Is it proved that she agreed to convey a fee to her son? Is it dearly proved that she put him into exclusive possession of the whole .land, or that he ever effectually relinquished his claim to his part of his father's personal estate? That he did sign a release, which was not delivered to Mrs. BUI,-but to Jlfr. Magotoan, is indeed Sufficiently proved by the testimony, which proves also that it was done in consideration of her executing a will, and not in purauancc of a former agreement. Are. all transactions to he considered together, and one certain, honest, fair agreement, to be collected from the whole? By-no means. The inference to be drawn from the whole is this — that such an agreement was often in contemplation, but never actually concluded, otherwise than was ■done through Magowan’s agency.
    The stronger an impression can be made in favour of this man's character, the stronger must he the ground Ibr belief, that an effectual agreement was never made, and that Mrs. EM pertinaciously resisted all solicitations or attempts to part with her controul, or to give (as is the favourite phrase of persons in her situation,) the staff out of her own hands. A man of integrity, judgment and skill, called upon to exercise that judgment and skill in preparing effectual writings, would never think ©f a will revocable in its nature, on one side, and a release not to be immediately delivered on the other.
    And now, let a supposition be made, the most favourable for the complainant which the testimony can possibly authorise — suppose an agreement binding on Mrs. BUI to vest a fee simple in her son, in consideration of his releasing Ins claim to his father’s csiataj suppose, that in consequence of this agreement, she gave him Rail pofwrñion, which he retains till his death, having made valuable and lasting;improvement;;, her devisees are now called upon to ■complete the performance, of tills agreement by a conve;/ancmShali this court g‘vcall the. benefit of a cours ed to one party, without securing the consideration stipulated for by the other party? Does it appear that JTerahi ;n effectually Yelinquished his ciaba? Can the court in this cause direct such a release, or decree such an injunction as will prevent a recovery of tbe personal estate (if any there be due,) to Abraham's representatives, from the representatives of Mrs. Hill? It surely cannot direct a release by, or enjoin persons who are not parties to tbe suit. And it does not appear from the papers, nor is it probably the fact, that the complainant is the sole representative on whom the personal rights and claims of his father have devolved. A slight consideration may support an agreement made by a parent with a child; but the consideration. however slight, must be performed.
    The defendants ai'e indeed volunteers; they have paid no consideration for the land; but they each had a natural claim on Mrs. Hill, equal to that of their brother Abraham; and this court ought unquestionably to be clearly satisfied that there was a fair, honest agreement, and that Mrs. Hill had, or her representatives may have, all the benefit contracted for on her part, before it will undertake, on account of that agreement, to divest the defendants of their legal title under her will. Perhaps indeed, no instance can be produced of this court’s divesting a legal estate where the facts, on which the equity arose, had been strongly litigated, until those facts w ere established by the verdict of a jury. Can a case be produced of an issue directed by chancery to try whether or not a parol agreement had been made? And shall then, (it may be asked,) shall this court neither decide itself, relativo; to a strongly litigated fact, nor send an issue to be tried by a jury? Yes! If an alleged agreement be so difficult of proof, and be so extremely questionable as to its nature and extent, it Avants one essential ingredient; it wants that certainty, which avou] d result from a waiting, as directed, or required by the statute. And this court, although it endeavours, so far as it safely may, to prevent an injurious harsh operation of the statute, which Avould be contrary to the intention of its makers, will never destroy that safeguard which the legislature has provided for the protection of property, and the prevention of fraud and imposition. It may beproper to remark, that it is not merely because an agreement is positively denied by the answer that it is called a fact strongly litigated, it is because not only it is denied, but the evidence leaves it quite uncertain whether or not the agreement was made, and (if made,) Avhat was its nature and extent,
    
    How often is it necessary to repeat, that when a contract is established, even by admission, it is still a matter of sotind discretion whether or not, under all circumstances, a performance shall be decreed.
    • That Abraham Simmons was harshly and capriciously treated by his mother, is extremely probable; but asimilar treatment is often the lot of meritorious children, whom this court has no power to protect.
    Upon ail the circumstances of the case, it is, this 25th of January, 1796, adjudged, &c. that the injunction heretofore issued in this cause be dissolved; that the bilí 01 the complainant be dismissed, &c.
    The complainant appealed to the court of appeals.
    
      Mason, Shaaff and Wihner, for the appellant.
    
      Martin, (Attorney-General,) Cooke raid Key, for the appellees.
    It was agreed and admitted in the court of appeals, by the counsel for the parties in the case, “that Thomas T. Simmons, the appellant in this cause, is the eldest son and heir at law of Mraham Simmons in the bill and answer named, which Mraham was the eldest son and heir at law of Mraham Simmons the elder, and Sarah his wife, formerly Sarah Drury, and after the death of her first husband, Mraham Simmons, was Sarah Hill, the wife of Mel Hill, as stated in the said bill and answer. And that in the determination of this cause, the above facts shall he taken and considered as if the same were stated and admitted in the original bill and answer in this cause filed.”
    
      Shaaff, for the appellant.
    The present case, to prevent confusion, will be considered most properly under two propositions:
    
      First — That Sarah Hill did contract to convey to her son, Mraham Simmons, the land called Birkhead’s Parcel, bought by her of Charles Hrury, and put him in possession.
    
      Second — That the contract proved, is such as the court of chancery will decree the specific performance of.
    T he evidence applies to two transactions, one before the making of the will in 1777 by Sarah Hill, the other to the will in 1777. I will consider the case in that order.
    It must be remembered, that Mraham Simmons was issue in tail to the lands in Prince-George’s county, devised iii tail to his mother Sarah, by her husband Charles Drury, and consequently presumable, that if she sold these lands she would buy others for him; this she did of Charles Drury her brother.
    He read sundry depositions taken in the cause, proving Sarah Hill’s intention, before she bought the land; and he also i*cad sundry other depositions proving that she did actually buy the land for her son Mraham Simmons. And he contended, that the depositions positively proved the contract from the best evidence, viz. the declarations of Mrs. Hill herself, from whom both, the parties in this cause derive their claim; and one witness, (John Weems, J proved the very contract on behalf of Abraham Simmons, af the time it was made, in the most solemn manner, by calling persons to hear witness — .that he was present when Mrs. Hill agreed with Charles Drury, on behalf of Abraham Simmons, to convey the land to Abraham Simmons. But ibis is put beyond all doubt by the possession of Abraham Simmons, and the continuance of it to this time from as far back at least as the year 1767.
    He read sundry depositions proving Abraham Simnions’s possession of the land from 1767, until his death; and that he built houses, and made improvements.
    lie contended, tlmt. this evidence in the fullest manner clearly proved two tiling's, viz. that there was a contract between the mother and her son, and a possession under that contract; which alone gives a substantial ground of lelief in equity. But that the transaction which took place on the 7th of May, 1777, ought alone to give the appellant a ground of relief. Independent of Magowan’s declarations, it is sufficiently proved, that in consideration of the release of the personal estate, Mrs. Hill agreed to, devise the land in question. The release is still inexistence, and the evidence of the release is very powerful.
    He read sundry depositions relative to the agreement, the release, and the will; and contended that the evidence proved tiic agreement and will; and that, if the declarations of Mr. Magowan were taken as evidence, the thing' was conclusive.
    He contended that all evidence set down in a court of equity, and not excepted to, is regularly evidence; that if the party had any objections the way would be to expunge on exception; as no exception has been taken, none can now be made. — 7 Ca. Pari. 806 or 206. But he contended: that the declarations of Mr. Magowan were evidence — 3, ¿¿tor. 1244.
    Taking the different contracts to be proved, it will then be necessary to establish, that a court of chancery, will enforce the performance of it, This leads to the
    
      Second question. That the contract is such as a court of chancery will execute.
    In courts of law and equity there are two kinds of considerations — a goad consideration, and a valuable one — . either will be sufficient to enable the court of chancery to decree. If it he merely voluntary, and to a stranger, the court of chancery will not interpose. Considerations of blood is sufficient to raise an use — 2 Black. Com. 338. A court of chancery will decree a performance of a voluntary contract, when" made for a provision for a childo — 2 Con. Mg, 126. A voluntary settlement shall be decreed to one co-helr against another, even where it is afterwards devised to both. 2. Com. Big. 122. The cases in which these principles most frequently occur, are where the court of chancery aids the defects of conveyances, and it must be easily discovered that every instance of that kind must he a case in point, when it applies to volunteers, because the conveyance being void, the court of chancery enforces the agreement which has never been complied with. Conveyances voluntary shall he supplied in favour of children — 1 Vern. 40. 2 Vent. 365. 2 Com. Big. 172. A. defective voluntary conveyance to a brother of the half blood was aided — 1 F. Wms. 60, A court of equity will supply in favour of younger children. — 1 Fonb. Eq. 341. 1 Vern. 133. 1 Salk. 187. The same principle is established and recognised in 1 Fonb. Eq. 34. 1 LoJ't’s. Evid. 140.1 Vex. 220. 2 Vez. 164, 582. 1 Mk. 137.
    But this is not voluntary, because the personal estate, 63 si. 14s. 3d. is to go in payment. The cases cited clear, ly establish the point, that independent of the will of 1777, the court of chancery has full power to decree a performance. But the transaction which then took place will put it out of all doubt. A court of equity considers the nature of the contract of the parties, and will decree according to the substance of it — -1 Fonb. Eq. 84, In the present case there can be no doubt but it was the design to give the land; the engagement was, that an effectual devise, i. e. a devise by which Mraham Simmons should take the beneficial interest, not simply that she should execute a will and afterwards revoke it. The situation of Mrs. Hill explains it; she had previously engaged to let Mraham Simmons have the land; she was ill, and expected to die; a will was suggested by Mr. Magowan, which if she had died would ha* e been effectual, but she survived and vacated it. There have been decisions on this point — If a man contracts with an heir at law, claiming to leave him 5001. or his land, if he dies without issue, this contract will be executed — 1 Vern. 48. Inequality of price is no objection to a contract — Ca. Cha. 4. 2 Vern. 423. l F. Wins. 542.2 Com. Big. 125. Ca. Cha. 159.2 Corn. Big. 122.2 Powell, 152. Ca. Temp. Tal. 239. This case is out of the statute of frauds by the delivery of possession — 1 Fonb. Eq. 171. Taking possession and making repairs — payment of money — taking possession-will take a parol contract out of the statute. — 1 Powell Cont. 296 to 300. It is here stated, although there is a variety of evidence concerning the contract, yet if one he made, out satisfactorily it will be decreed, although by parol. This is an answer to part of the chancellor's decree. There can be no objection on account of Simmon’s representalives being parties, because the contract was complete on the part of Mraham Simmons by the release.
    
      Mason, on the same side.
    The case may be considered in two points of view.
    
      First, as a voluntary promise to convey lands under such circumstances as to make it proper to enforce a fulfilment thereof.
    
      Secondly, as a contract upon a valuable consideration fairly entered into, performed on the paid, of the appellant’s father, and such as ought to bo specifically decreed.
    As to Üm first question under consideration, and here it will be necessary to consider the situation of Mrs. Hill, the mother, and that of her son Mraham Simmons, the father gí‘ the appellant.
    The answers of the appellees admit, that in 1758 Mrs. Hill was a widow', having buried two husbands; by the first she had two children, Betheridge and Mraham Simmons', by the last five who were living. Mraham Simmons her eldest son, was then 14 years of age. By her first husband she had received in marriage a competent fortune. By Hill, her last husband, she gained no acquisition to her estate. Hill, however, had by his industry, and by the possession of her maiden lands, and the use of her first husband’s estate, made provision for his children by her.
    Her first husband, from a mistaken confidence in her, or from some misconception of his own powers, had devised a part of her maiden lands to his son; he had made a beneficial devise to his wife of one half of his personal estate. His mistake as to his pow'er over his wife’s land most probably produced this devise to his wife of the personal estate. Her son Mraham, was the heir in tail, the person intended by her father to inherit the FrinceGeorge’s land. Had the entail not been defeated he must have inherited. She seems to have considered the land his, and at his request, and that of her brother, she barred the entail for the purpose of making’ a more advantageous provision for the heir in tail. Under these circumstances she makes an agreement with her brother, and calls persons to witness it, that this land should be her son’s. When he arrives at age, or before, she puts him in possession of it, and under a belief that it was his, which she never contradicted, he makes lasting and expensive improvements thereon. This statement is proved by the testimony of a number of respectable witnesses who were examined in the cause.
    In this point of view the agreement, though wholly voluntary on the part of the mother, ought to be enforced, because it is between a mother and her son; because by it the son was led into expenses he otherwise would not haye incurred; because if the entailed land had not been disposed of in the mother’s life, it would of course hare descended to this son, and most likely never woidd have been disposed of but at the instance of her son and brother.
    Generally a voluntary agreement will not he enforced fey a court of chancery; but if it be for the provision of a child or children, it shall be decreed — 2 Com. Big. (96) 126 (2 C. 7.) Although generally a defect in a voluntary conveyance shall not bo aided in chancery, yet if it foe a provision by settlement for children it shall — -1 Vern„ 40. A voluntary settlement upon one daughter, inoperative in law, shall be decreed against the other daughter and co-heir, though the father had devised the estate to them both — 2 Com. Big. (93) 122, cites 1 Cha. Bep. 157. A. who had only a possibility in case his elder brother died without issue, agreed to settle lands after his decease, (if they descended to him,) upon a relation, who married without his father’s consent, to the intent that Ms father might he reconciled to him — agreement decreed- — 2 Com. Big. (93,) 122; cites 1 Cha. Ca. 159 Here was no consideration — -It was perfectly voluntary, but it was meritorious as between relations.
    This case is not within the statute of frauds and perjuries. because in part executed hv giving possession, and because of the improvements thereon made by Mraham Simmons — 1 Vern. 156.
    As to the second question, a contract upon valuable consideration performed on the part of the son Mraham Simmons.
    
    Mrs. IEU, and her son Mraham, both stated a firm contract, that the proportion of old Mraham Simmons’s personal estate, which belonged to the son Mraha.ni, should go for and betaken as the purchase money of this land. The witnesses prove it, and the Rev. Mr. Magowan declared the same things to sundry persons. The consideration was 6381. 14s. 3d. current money.
    This agreement made absolutely, not conditionally, for the disposition of this land.
    The release is not an escrow, batan absolute release put into the bands of Mr. Magowan for safe keeping, at the instance of both parties. This is proved by a number of witnesses.
    The substitution of a will, instead of a conveyance, is no part of the contract; it was resorted to from the circumstances of Mrs. Bill, and a confidence on the part of her son that she would not revoke it.
    Where an agreement is fairly made, and fully executed on one part, and imperfectly, or not at all on the other, it will be enforced.
    
      
      Key, contra 
       It is admitted, that the parties in this canse are respectively volunteers; but let it be further observed, that the defendants have an equal equity, and have the legal title to, and are seised in fee of, the laud now in controversy, and have obtained a judgment therefor in an action of ejectment in the general court.
    It is considered by the complainant’s counsel in two points of view.
    
      The first is, whether the will of Mraham Simmons, coupled with the widow’s acceptance under it, and with her other acts and declarations prior to 1777, will not entitle the complainant to relief. We apprehend most clearly not. The case is simply this; Mrs. Simmons was seised of an estate in tail in certain lands; her husband made 1ns will, devised his wife’s land to his two children, and gave his wife one half of 1ns personal estate; he had no real estate of his own. The widow stood to the will — and does her acceptance of a moiety of her husband’s personal estate, under his will, oust her of her own fee tail lands,because in the same will the husband had devised them?
    A widow is entitled by law to dower in the real estate, and thirds of the personal estate of her deceased husband; and this arises by operation of law, independent of the husband’s bounty or contrail; and every thing that he devised by wilTto his wife, of either real or personal estate, was considered inlaw as cumulative; which was a natural and reasonable construction arising out of their connexion as man and wife. This continued to be the law until 1715, when the legislature, in cases of devises of real or personal estate to a wife, drove her to make her election to claim under the will, or take the estate the law gave her. But she yet retains an election as to both real and personal estate. Thus, if a husband seised of an estate of inheritance, devises the same to his two sons, and devises a moiety of his personal estate to his wife, her standing to the will, or in other words her acceptance of the devise, does not so aiiirm the devise of the lands in the same will to the sons as to preclude her of dower therein, hut she is entitled to her dower estate by title or operation of law. Is it possible then to conceive, that if the husband devises her lands to his children, and one half of his personal estate to her, that her acceptance of the devise of the personal estate, loses her right to her own lands? Is she not (in this case,) seised of her own lands in fee-tail by her father’s will, and is not that title as good as her dower right in the other case? Both arise by operation of law, and are equally available, and in neither case can her acceptance of the devise of the personal estate, bar her inte • 
      rest in the real, unless the devise is made expressly ,-on such condition.
    But it is contended, that whoever takes a benefit under a will must affirm that will in toto; and that in this case the wife’s acceptance of the devise of the personal estate binds her to affirm the will as to the real, although it was her own property, and the testator had no interest in it.
    I admit the lawin'those cases, where a-father seised of" estates tail, and fee simple estates, about to provide for his children, devises the entailed lands to his younger son, and the fee simple to his eldest, that the latter shall not claim both. The reason is found in the- cases, 2 Vern. 581. Powell, 445, 446. Ca. Temp. Tail). 176. 2 Vern. 233. 2 Com. Big. 186. All these cases recognize the principle of JSpoye <§• Morduant, which was the first case; but these cases all relate to devises of real estate only, and I conceive are not applicable to a devise of personal estate, as being conclusive on the party taking, to affirm the will in toto as to the real. The case in 2 Ves. 12, was that of a devise of personal legacy to an heir, but upon express condition that he should not dispute or controvert the will. It is obvious that the heir could not claim both, in the teeth of the condition; no legatee can claim a legacy by violating the condition on which it is expressly given; the party in this case, put to their election. 2 Ves. 617, turned on this point, whether the legacy was to be a satisfaction for a debt due to the legatee or not, the testator having' miscalculated the debt — this was a base altogether of personal and not real estate. 2 Vern. 555, was the case of articles before marriage, and a subsequent devise. It was determined on this point, that although the will did not mention the legacy to he in lieu of what was given by the articles, yet the will imports a disposition of the whole estate; what was intended for the wife, and what for children. In this case the testator had made a disposition of his whole estate; if the articles were to take effect they violated that disposition; for if all was disposed of, nothing was left to satisfy the articles; therefore the party could not claim both. It is apprehended no case of articles previous to marriage and devise subsequent, can be analogous to this case, where, the wife, independent of all articles and contracts, was seised of an estate tail in her own right, and where, by no possibility • of construction, the devise of one half of the personal estate could be considered as a satisfaction of her thirds, and legal estate of inheritance in her maiden lands.
    We meet no case like it; and we trust it will never be put in the power of a husband to devise away his wife’s maiden estate, by giving her in the same will a guinea or an hundred pounds of personal property more than her Nay, if the principie applies, one farthing devised to her over and above what her distributoiy share would amount to, would rob her of her whole maiden estate in lands.
    The testator’s will does not in any degree imply that he would have given his children more of the personal estate, and the wife less of it, had he not have supposed site would have carried into effect bis disposition of the real estate. I admit the act of 1715 will not let the widow have both the legacy and her thirds of the personal estate; but I verily believe, 99 times in the 100, it defeated the intention of the testator, whose' gratitude and affection would make him give her a legacy to express his regard, as a bounty in addition to what the law allowed.
    In this case he divided his personal estate between his wife and children. And is the surplus between her thirds thereof, and the moiety devised, supposed, or can it be supposed, as a fair consideration for her maiden estate, and constitute her in equity a trustee for the children? I never can so believe. It was never so contemplated, or other parties would have been made to the bill, because the testator’s devise of the wife’s lands, being a tenancy in common to his two children, the daughter, or her issue, should have been joined. Under what pretext does one tenant in common file the bill, except as to the second point raised in this case?
    If the parties were now living, and a hill had been filed against the- wife, if the complainants’ doctrine is right, the utmost the court would do would he to pat the wife to her election either to reject her devise, and take What the law allows, or to accept it under the terms of letting the land go to the devises immediately. „ If such consequences were or had been explained, can any one doubt what would have been her determination. She never had an idea of such law, nor had the parties interested. She would have been at once deprived of her whole real estate, and left to subsist on between 4 and 500J. of personal property. Suppose the devise had been less than her thirds of the personal property, her accepting the devise could only have been a bar of right as to the personal; if more it is always in the case of a wife, considered as accumulative, or a bounty, and there is no instance to show in such case that the court ever thought she was barred by any such devise of her interest in the real estate of her husband, and much less in her own property. The case- in 3 Mk. 715, is not half so strong a case as this, and yet she held both-
    
      ¡Vs to the second point, whether the whole of the cr>. cnmstances in this case constitute a sufficient consideration to raise and support a contract which equity will enforce.
    The case cited from 2 Vcrn. 233, is where a father settles land on his son in tail, and takes bond from him net to dock it. The bond was held good. The reason is obvious; the bond was an inducement for the father to snake the settlement in tail, if it had not been given the father might ha\ e only given a life estate, or no estafo at all; to set aside the bond would have been a fraudulent-act on the part of the son, who gave it as an inducement to obtain such an Interest in the land.
    Bat v,'hat act in this cause has been done by Airs. Hill in any degree analogous to that of the son in the case in Vernon, 233, who to get the interest in the land gave his bonds’
    2* Com. Big. 125 — -An agreement.founded on mistad s between brothers, on a devisera their father’s will, decreed. In that case an agreement was made, and executeu between the brothers. In our case it is denied that amj agreement ever took effect, or was entered into by the mother to carry her husband’s mill into execution. I contend, that if the mother ever agreed to carry her husband’s will, as to the real estate, into effect, such agreement ;trust have been to the benefit of both the devisees, and not the son only, and there is not an atom of proof is this cause that the mother ever agreed to carry it into effect for the benefit of the daughter, the tenant in common under the will; but the complainant asserts the contrary. Then it necessarily follows, her agreement (if any,) was not to carry the -mil into effect, but to carry into effect some particidar agreement with the son, independent of the will ot the father, and i» opposition to it». Therefore the cases cited do not apply, because an agreement to carry the will info effect, for the benefit of the son only, never could exisf, it being directly contrary to the words and intention of the will, which isa devise to the son and daughter equally. But It is said a valuable consideration passed from the father’s estate to, the mother» The devise gave her .467?. 8s. 3d. of personal estate, in-dead of 311/. 12s. 2d. the amount of her thirds. So the difference 189?. 15s. 1 1»4íL instead of being conoidcred as a bounty to the wife, (and which she stood to, with out prejudice to her real estate, and was authorised by Saw so to do,) is upon principles of equity set up as a consideration to rob the wife of her maiden lands. From whom does this consideration pass? From her husband*,, it is said. With what view? Why that she may carry his will into effect for the equal benefit of both, devisees of the 
      
      land. The consideration passed as well from the daughter as the son, because her personal estate was diminished by the devise to the mother, as much as the brother’s? then she i; ■ q.tally interested in every point of view with the brother. And yet this court is called upon io say she made an agreement to carry the will into effect for the belief t of her son only.
    
    This court would scarcely credit even proof of an agreement, and certainly will not presume, that the mother meant by any act of hers to evidence an intention, or to make any contract relative to carrying that will into effect, which in its very outset violates the will it meant to support, by gi.ing to the son what the daughter was equally entitled to, whose name is never heard of in this suit, and whose interest is deserted. When Mrs. Hill, after her first husband’s death, barred the entail of her maiden lands, and purchased the land in controversy, it is said this was done for the benefit of her sou. This is hearsay, and n it evidence; but if if was, it plainly shoivs that she did not mean to carry the husband’s will into effect, or she would have purchased for the joint benefit of both son and daughter. Again, it is said that the son sacrificed his part of his father’s personal estate to his mother, and this is a sufficient consideration to raise a contract. Here tiien arises a new consideration, independent of the father's will and devise to his wfe. The sister's interest and the father's will, are both deserted; and a new substantive ground of equity is tak- n. How far that was given up, bis wife’s conduct will show, who after Mraluvm's death sued the mother’s administrator to recover that very sum, which it is now said was given up many years before as the consideration for the Sand.
    It is said that Jo :n Weems (one of the witnesses,) has proved the mother’s agreement in the most solemn manner to give the land in Anne-Arundel county to her son, in lieu of her Prince-George's estate, and that she purchased the Anne-Anmdol lands with the money arising-from the sals of the Prince-Georgo’sland. Most probably she often said so, and intended to give it to him, and probably would if she had liked his conduct through life. But if the expressions of a parent’s intention, in favour of a child, are to .be drawn into agreements and contracts for this court to operate on, a few cases of that kind seal the lips of most parents with respect to their property and their children. It is further said, that letting him take possession at 21. is carrying the agreement into effect, and takes it out of the statute of frauds. The agreement or conversation did not pass to, and was not made with' Jlbrahamj it was conversation of her intentions. with a third person. Where exists the proof that she pat her son in possession to carry her contract made with such third person into effect? The most probable and fair construction of this act is, that she let him live there as a temporary home; at best letting him live there was an equivocal act, and ought not to be construed to wrest the estate out of the devisees, now seised of the legal title. By a supposed contract he was to have it after her death, by a will made in ids favour; then this living on the lands in her life-time, could not be a part execution of a contract which was to take effect after her death. Again, it is said, independent of the contract, the facts create a plain trust; it is said she sold the Prince-George’s lands, •< and bought the Anne-Arundel lands expressly for her son, although purchased in her own name; that she bo ght it with the money arising from the entailed land t which she supposed her son had a title under her liusba' d's will.” To this it may be again replied, that she could not mean any such tiling in the purchase of the Anne-Arundel lands, as she would have bought, them for the joint benefit of the son and daughter, which she did not do. Her declarations to Charles Drury, and her purchase, are repugnant to the will; for it was not carrying flic will into effect to buy the Anne-Arundel lands/or her son, with the proceeds of the entailed lands in Prince-, George’s county. She simply conceived that her right to her maiden lands st ¡1 existed; she sold them, $nd purchased in Anne-Arundel, to be near her brother, and for greater convenience, and most probably contemplated and safd she would give them to her son, but never so agreed or contracted on such a valuable, consideration as to prevent a future disposition of them to whom she liked best.
    But the facts and contract in 1777 are sufficient to entitle the complainant to a derree. If they are, then the:' ' is an end of the first point about the will; because under that the daughter is equally entitled, but it not being convenient to lei her in, this new point is discovered. If the first point is a good one, this second supposed contract with the son was a fraud in both of them against the daughter’s interest under her father’s will, it is a hard case, which must support itself upon such inconsistent principles. In one part of the case, to wit, the first point, you must construe, every act done by the mother as evidencing her intention to give validity to the husband’s will, which was in favour of both son and daughter, though he only claims. In this latter point, all her acts must be construed to make or imply a contract to the. exclusive benefit of the son, and to the fraud of the daughter’s right under the father’s will, and thus set the latter part 0f her life in opposition to all lier former conduct anil intention of carrying the will into effect; this last measure being evidently calculated to defeat the will of her bus-hand.
    That any contract or agreement was entered into between Abraham Simmons and his mother, that she was to leave him, by will, her land, and he to release his claim to his father's personal estate, cannot be admitted to be proved in this case by any legal and competent testimony. Hearsay and conjecture is not sufficient; and Hie counsel for the complainant, in one part of their argument, has thrown out part of their case as being supported on hearsay only. It is said on this part of the case, that the agreement in 1777 was simply to leave the son the land in Anne-Arundel county by will, instead of the land in Trince-George’s county, and this agreement was executed by making a will to that effect. The complainant still proceeds on the ground that the will of the father was intended to be carried Into effect by the will of 1777. It has often been said that this never could have been the idea, because giving the land to the son only, was not carrying the father’s will into effect, which equally gave the property to the daughter; and this mistaken impression seems to have influenced the whole argument. That Mrs. Hill, the mother, made a will in the son’s favour, I can believe, but that the foundation of this will was a contract for the consideration of which the son was to release his interest, I cannot believe.
    J. The son’s widow sued the mother's administrator, to recover what was due to him, after the death of both parties, and no claim made to the real estate until that suit was defeated.
    2. Because it is at one time contended, that the mother was in all her acts and conduct governed by the principle of carrying her husband’s disposition of her estate into effect, although every act and expression of hers is alleged to be in favour of the son only, in violation of the will, which gave the daughter an equal interest.
    3. Because the release is not proved to have been executed with the privity and approbation of the mother as the consideration of her making the will, and was never delivered to her. Such a paper would require the most explicit and unequivocal proof, because it tends to make a vAU a contract, and as such, irrevocable, Why not give a paper binding herself to convey the land to her son in consideration of the release? This would have been more simple, and freer from doubt than a will. And why should the old lady, had she made this contract# have rescinded it, and made another disposition of the estate so immediately after, and withdut any subsequent cause for her conduct?
    
      The case in 1 Vern. 48, goes upon a compromise to Quiet the claim and right. But what right or claim had . ihe complainant in this case independent of the daughter? He had none. Is it proved lie alleged one, and therefore, prevailed on Ms mother to make the will? When or where is it proved that he made any, and what claim against his mother for this land? If it is not proved, the case is not analogous; and it will not be contended his part of the personal estate was an adequate consideration for the land.
    I conceive hearsay is not evidence in this cause to defeat the legal estate of the defendants; see Butter 294; Esp. 785; and if hearsay is not admitted as competent and legal evidence of a fact, the complainant has proved nothing. The chancellor will determine its admissibility,- and examine then what legal proof exists in the cause.
    Two witnesses to the release, neither of them knows where it was executed, nor in whoso custody it has been; none of them pretend to say it was executed in the presence of the mother, with her consent and knowledge of its contents, as a consideration for her will. This ought to he most clearly proved; but not an intimation exists, except/rom hearsay. It is not known when or by whoni it was delivered to Mr. Magawan, nor upon what conditions; and its being returned to Simmons, or Ms wife, is prima fade evidence that it was a conditional contract, (if any,) and considered as no longer binding. If the contract was an absolute unconditional one, why not leave «.lie release in the possession of the mother? But the placing it into the hands of Mr. Mdgowan, if with her knowledge, shows it was to take effect only upon the event of” her not altering her will and her leaving the land to her son, in the nature of an escrow. No case can be found to justify the court in carrying into effect such an agreement, proved in such vague and uncertain terms; the agreement itself not reduced to writing; the consideration ao inadequate; the testimony, such as it is, only hearsay-evidence of what she intended to do, and not what she had done, and contradicted by her open and avowed conduct afterwards. The agreement, to be decreed in equity, ought to appear certain, plain and fair, in ail respects, and not conditional — -3 Mk. 383.
    
      Cooke for the appellees.
    The difficulty of arguing this case, arises from the change of counsel on the part of the appellant. There have been three sets of counsel, Mr. J) avail, Mr. Pinkney, and those who now appear. At first it was relied on that Mrs. Simmons agreed to let her husband devise her land; this is now abandoned, because not proved. It was afterwards contended, that if she took by the devise of her husband she must be bound by the will; this has been given up. And it was also con^enje(js that the land in Prince-George’s was sold, and the land in Anne-A rundel bought with the proceeds, which made Mrs. Hill a trustee; this has also been given up. The ground now taken is on the contract between the mother and her son. *
    He denied there was such a contract, and used similar arguments as urged before the chancellor by Mr. Key„ He cited 1 Jllk. 12. 1 Ve». 279.
    
      Martin, (Attorney General,) on the same side,
    went into an examination of the whole case, and contended there was no contract at ail prior to 1777, and none in 1777, which the court ought to enforce. That no parol agreeinent is ever decreed where it is denied by the' party, unless it is clearly proved, and by a partial execution taken out of the statute of frauds. That this case is like ail others, if proved it must be enforced, but if not proved, it cannot be enforced. The parties in this case are all children, and all stand in equal degree, putting the valuable consideration out of the question, it is a maxim in equity, that whnrc the equitj is on all hands equal, chancery will not interfere. Although her son would have been heir in tail to the land in Pxince-George’s, yet the mother had absolute power. The advice of her brother to change the land was natural, whether she was to keep it hers.clfor give it to her son. He contended that she never gave the staff out of her own hands, and it was nothing more than a parent’s buying land with a view of giving it to a particular child. There was no such agreement. as can be enforced. No man can avail himself of a promise made to a third person — Cro. Eli». 369. Esp. l06. Rut if the promise had been made to the son him- • fself, the court would not decree, because it is so unreasonable; she had eight children, and was about to give all her inheritance to one. Suppose the promise to release proved, would it bind either Drury or Mrahanii
    
    As to the evidence and the contract supposed to he made on the 7th of May 1777, and the possession, the amount of it is only this, that the mother permitted her son to work a part of the land, and she worked the other part herself. Her son had no where to go, and she let him live there; and the improvements most likely were made with her money. There is no evidence which shows the transact tions of 1777 were in compliance with any former contract; nor does any of the witnesses know any thing of this release, nor do they prove that Abraham was to have the land. Although Mrs. Hill was not out of her senses when she made her will, yet she was not in a situation 'to weigh words. It is proved that "she was so ill that she had forgot the whole transaction, and knew nothing of the will until after her son’s death; who, it is in proof, on his death-bed begged for a home for his wife. The paper produced as a release does not operate as such; because it was not delivered to Mrs. Iliil; it is void in law, because it has no parties. To make it a good release, must go into chancery to have it rectified, which chancery would not do, because the land has been since devised. He insists that there are not proper parties before court. The case in l P. Wms. 60, is not authority, being the case of a brother of the half blood.— 1 Salk. 187. If the father has made a provision, however .small, the chancellor will interpose and enforce. But as a contract to grandchildren it will not be enforced.
    He cited and commented on the following cases: Fonbl. ■339, 340, 342. l Vern. 151. Ca, Temp. Tal. 239." 1 •Fonbl. 176, 28, 27, 34, 35, 36, 37. 1 Powell, 297.
    
      Mason, in reply.
    The counsel for the appellees profess to consider the case as we do. First, asa voluntary agreement; and secondly, as an agreement upon valuable consideration. ' And they positively deny any agreement at all. If the court are satisfied that there did exist'an agreement between the mother and the son, by which the mother promised to convey, without any other consideration than that of natural love and affection, it is binding upon her, and will be decreed, unless the court are prevented by one of two causes; either by the statute of frauds and perjuries, or because the thing is unreasonable. That the agreement was mafic by the mother with her son, Í prove by the depositions of'three . witnesses. [He hero states the evidence.]
    But as to the statute of frauds and perjuries, the attorney-general contends, that no parol agreement will be decreed where it is positively denied, unless ¡t be clearly proved. In answer, I refer to 1 Powell on Cant. 295, 296, 297, 298, 299. But there must be a stipulation that tins agreement shall be reduced to writing — 1 Vern. 151. Ñot so — 1 Fonbl. 176.
    I prove the contract sufficiently certain as to quantity. I prove a partial possession they themselves admit, and that is sufficient. I prove money expended in improvements, that too is sufficient to avoid the statute. But it remains now to consider whether a decree, should be withheld because of unreasonableness.
    The attorney-general lays it down, that where the persons all stand equal in equity the court of chancery ought not to interfere| that in this case they are all children and • have equal claims upon the common mother» Rut the grs£ eryUpty claims the preference — 2 Com. Mg. 122. Rtit the attorney-general cites Fonbl-. 342» W hat evidence is there that these daughters are to be destitute? Can we go out of the record to presume? The mother got a good estate by Simmons, and none by Hill» Here then* it is contended, we bring tlie case strongly before the court, as a case proper to be enforced, even though it be considered as one destitute of any consideration but that of natural love aiid affection.
    We-come next to consider the contract as standing upon a Valuable consideration bona fide paid» This tdo is denied by the appellees5 counsel, and here they take two positions in which they think themselves very secure: — 1 First, That there is no evidence of an agreement antecedent to May 1777', and Secondly, The contract in May 1777 not being in execution of any prior engagement, it is ill itself of no effect.-, í símil first consider the transaction as proved to be upon valuable consideration without regard to time. ' Secondly, I shall consider dates to prove the will and release in execution of a prior contract. Thirdly, I shall considei1 the will and release as a Substantive' independent transaction, proper to be enforced.
    As to the first point — That it was upon valuable consideration is proved by the declaration of Mrs» Mil and of Mr. Simmons, the two parties. -Concurring in a fact how can they be mistaken? [He here reads the depositions of sundry witnesses.] Without regarding dates, Which I Shall consider presently as belonging more properly to another part of the subject, I ata justified in saying, that a valuable consideration passed from the son to his mother*, or was contracted for, provided he had any thing due' to him from his fathers estate, which the gentlemen* hard of belief, cannot credit. HoWever, let us resort to the papers in the cause. The bill states 9341. 15s. 6<L The answer refers to the inventory which fixes it the same. What do the gentlemen mean by saying there is not a six pence due?
    The-sum due, dollars at 6s, was add 25 per cent* 9341. 15s. 6d. 233 s loanee 4
    The fourth of which is Due in 1745 — Came of age in 1765 20 years interest, 292 • 1 1 .350 9 3
    Besides sterling debt, this sum due 642 10 4
    But the gentlemen ask how was he maintained? There is no evidence that Ms mother did it; at all events she could not overgo the interest. That leaves 292h Is. Id, besides the sterling money,
    In adequacy of value is no ground to refuse the fulfilment of a contract — 2 Powell on Cont. 152 — unless accompanied with fraud — 2 Com. Big. 125. Ca, in Ch. 42. 2 Verm 423. I P. Wms. 542.
    
      Secondly, The release and will considered as done in execution of a prior existing contract. That such a contract was entered into either effectually or ineffectual-, ly, (for to the present question it is of no importance wMcls) is proved by two witnesses, viz, John Weems and Betlurdge Simmons. The first proves it, as having been, present when it was made, and the other states it from her mother. It is further proved by another witness, Thomas Tillará, He first hints the consideration. But, the counsel for the appellees say this was after the year 1777, The witness does not say so. The maimer of taking testimony in the country is seldom very accurate-, ly done. But take the whole preceding and subsequent sentences together, and it clearly relates to a period mu<h earlier than 1777. It is connected closely with Charles Drury, who was probably dead long before; besides. when he comes to speak of the will and release, he states it as an after-knowledge gained from Mr. Magowan.
    But the attorney- general has ingeniously proved himself hat it was before. He will not criminate Mr. gow-.n; but Mrs. Hill was very sick when this will was. written, and though not o.ut of her senses, she was of weak memory, and knew not of this will until aftér her son’s death. Well, but if she never knew of these, things until after her son’s death, how- could she refer to a thing she knew nothing of; B.esides, the witness, (Tillará,J speaks of a thing executed and not executory. That it was in execution of a prior- contract is proyed also by Mr, Magowan’s declarations.
    And here let the counsel for the appellees be set right as to a fact which" they have strangely misrepresented or misunderstood, and from which misunderstanding much confusion has resulted. Mrs. Hill it was who. claimed and sought after this will and release in 1777, not her son, or his friend Mr. Magowan, who by the by is not called the friend of the son in particular by aiiy person but the chancellor and the attorney general. How is this case proved? by every witness who has testified respecting that fact, and by the circumstances of the case, [He. reads the depositions of sundry witnesses.] ^
    But again, she had reason to wish it, her son had none; she was like to die, and the land would then dcs-. cent! to her son, and, if it die] descend,, she Had nothing in ■writing to discharge her personal estate from his claim» This gave her cause to he anxious, and goes a great way to prove it to he in execution of a prior contract. Why it was afterwards given to Mr. Magowan shall be explained in proper time. Her -after talk about this will is not evidence.
    This frees the case of great difficulty; the son while in health never pushed, becau.se he was safe, if his mother died, the land descended to him. The mother-too, whilst in health, felt easy in trusting the thing Uponparol agreement; when she dreaded death, she wished for something in writing. Her son* like an honest man* gratified her; and in turn when lie felt Ills end approaching, lie wished to have something binding in lav; but she •was old, infirm, and under the guidance of a second brood of children.
    We come next to consider this will and release, even supposing it to he the creature of the moment, as a transaction grounded upon a valuable consideration, and proper to be decreed..
    The counsel for the appellees contend, that both parties, considered this transaction as a thing binding upon neither of them, but in case of the death of Mrs. Hilt; then
    1st. The circumstance of these papers, the will and the release, being put into the possession of.Mr. Magowans show they were intended as escrows.
    
    2d. The circumstance of a will revocable in its nature and a release not delivered.
    Sd. Why did Mr, Magowan give them up? A breach of trust in him. ■ '
    As to the first, he was their mutual friend, and she might suppose the papers more safe there than in her own house, in the hurry which her death would occasion. She might have no person about her whom she could send, to her desk, trunk, be. But why did they burn this will? That might have explained- — Her son might have been an executor.
    
      Secondly. The substance and not the form is to be regarded. The substance, was to give the land for the money, and that we asked to be enforced. What is a will? until death it is a nullity. A will, in common parlance, implies a last will, words to be taken as they were intended. I" shall presently apply some admissions of the attorney-general to this cause. If the court will here reflect that all this was done at the request of Mrs. Hill, in execution of a former contract, and her illness, and having put off ti.e thing so Jong, will well account for the hasty and ^-rtificbl manner in which it was done.
    
      Thirdly. Had they not burnt the will, that might have shewn the reason. She had a right to change her execiy. tor; to dispose of her personal estate; amt it might have been under a pretence of this sort that she sent for the will. Mr. Mu goman might have confided in her; he might never have dreamt that she would attempt to unhinge a contract she had so earnestly sought after; but he would not send the release. But it has been asked, why surrender the release to Simmons's widow? He did not — He delivered if to IM ward Tillará. Why give it to him? He ¡night intend to move. Bui why should we encounter these fanciful and imaginary positions* by conjectures however rational* when there is abs dute proof in the cause.
    That Hus contract was meant, to be conclusive, Is proved from Mrs. Oil's own declara-'ions, and that other sob, the. only two persons on earth intor/stoci; [lie reads her daughter’s Beiheridge Simmons's deporiíái» j] alhu by the release, itself, which is couched in terms past, ami by *¿1% Magoxuan's decía ations.
    The nature of an escrow is to be void, fee. The onus probawii v.pon the person giving; safe keeping will not make an escrow. But this was delivered to Mr. Magowan at the joint recur si of the parties. [He reads sundry depositions to that effect.]
    But the counsel for the appellees suppose this was a speculating wa/ering contract, made by and between an old woman, on the verge of the grave, and her son, It is a strange, id a, fit for the partner of an insurance company; a deal- j* in annuities, or a gamester, hut not for an old woman, vtho could not write her name, and was at the point of death.
    The. true ground upon which this transaction is to be considered is, that it was an agreement upon valuable consideration to convey land; but an incompetent mode of execution adopted. See Fonbl. 34, 35. 36.
    But what is a will strictly speaking? What is the meaning in common parlance? And here we will consider an admission of the attorney-general. He admits, if a will bad been contracted for upon valuable consideration, as in 1 Vernon, 48, the chancellor must have decreed. That under such circumstances the will must he irrevocable; though in compliment to the chancellor, he seems faintly to hint that she was not bound to make new. wills.
    But, strange- as it may seem, the attorney-general denies that there is any proof that Mrs. Mill owed the estate of her husband a sixpence. The bill, answer and inventory, the declaration of every witness stating her own acknowledgment, all prove- the reverse. Compare this consideration v«ih the casein 1 Vernon,48, does not this shut up the case?
    
      But we are told that this ease is not proper to be relieved, for the want of certainty in the subject matter 0f the contract. I feel myself under some difficulty in speaking to a point so plain in itself. [He reads a number of depositions respecting the agreement and executing a will.} But it is said the contents of the. will are not fully proved. If it were not, shall they take advantage from having burnt it? But the contents are fully proved. [Be reads the, testimony of sundry witnesses upon that subject.] But it is said there is no certainty as to the quantity of the laqd to be conveyed. Do not the following depositions prove it was the land bought of Kinsey Johns? And does not the release itself prove it? [Be reads the depositions and the release,} But the release speaks of two tracts of land, and she had but one, and one of the counsel, (Mr, Cooke.) seems to think this strange; and' true it is a strange subterfuge. The bill and answer both state that Charles Drury bought 600 acres of land called Birkhead’s Meadows and Birkhead’s Parcels; that his sister was to have one half, tor wit, 300 acres; which they afterwards speak of as Birkhead’s Parcels; yet not unlikely that some part of Birkhead’s Meadows may have been assigned to her, and from motives of caution both are used. — See Mrs. Hill’s will in favour of the appellees, the same expression is, used there.
    But it is said the release, so termed, is inoperative in, law for the want of parties; and being so, the court of-chancery, for the want of proper parties, could not decree, nor can this court. There is a difference between releases which operate by mittre de droit, and releases, which operate to extinguish.
    The contract of a party is to he reasonably construed so as to effectuate the intention; and id certum est quodcertum reddi potest. The acts of a person are to be more regarded in law than their words. A consideration moving from; a release that could enure to .none other; a de«. livery to' that person, taken all together, is good in law*. But admit the contrary, it is good in equity and proper to be decreed; nor was the court of chancery without proper parties; nor is this court. The release is proved to be genuine; it was deposited with Mr. Magowan; from him it got to Edward Tillard,. and from him it came to the appellant, who brings it into court; they now have it before them. Can they not decree this paper to he delivered over to Mrs. Hill’s representatives? "VVhat is to prevent them? They have before them the person who has. the paper, nay the paper itself; they have before them the persons who ought to have it. What other parties do, they want?
    I shall not trouble the court about possession. It is, admitted on all hands that the appellant’s father possessed part of tiie land; and it is admitted that he was put in-. to possession by his mother. It is of importance to us of how small a, part we were put in possession; a partial execution by delivery of possession is sufficient to take it out of the statute of frauds-. — 1 PoWell on Cont. 300, 301, 302. So too I shall not trouble the court to recapitulate the evidence as to improvements; upon that subject see 1 Powell on Cont. 295, 296, 297, 298.
    
      
      
        ) This argument -was made by Mr. Key before the chancellor •
    
   The Court of Appears, at this term, (June 17S8,) affirmed the decree of the Court of Chancery»  