
    *Lucketts v. Lucketts. Luckett v. Same.
    January, 1839,
    Richmond.
    (Absent, Tucker, P.)
    Specific Performance — Family Compromise — Case at Bar. — A testator makes two successive wills, both evincing- the intention to give each of his children, nine in number, land of 200 acres in quantity, or to the value of 5000 dollars, estimating the land at 25 dollars per acre, and both giving to two sons, who had only about 177 acres each, legacies of 500 dollars, to make their land equal to that of his other children. These wills he cancels, and after-wards makes a third, similar to the former wills as to the devises of land, but omitting the equaliz-ins' provision in favour of the two sons; and these two sons are named the executors. One of them offers the last will for prohate, hut it is rejected, because unattested hy witnesses: whereupon the heirs execute an agreement among- themselves, to abide hy the will so offered and rejected, in the division of the estate. Afterwards the two sons who were named executors refuse to perform the agreement, alleging that they entered into it without having ever read the last will, and under the mistaken belief that it contained the equalizing provision in their favour. But specific execution decreed in equity; there being no sufficient proof, either that the omission of the legacies made their lands unequal in value to those of the other children, or that they executed the agreement in ignorance and under mistake, as they alleged; and it being apparent that if they did execute it under those circumstances, it was their own gross negligence to do so.
    Leven Luckett, late of the county of Lou-doun, deceased, having- nine children, Francis, William, Ludwell, Horace, Matilda, Henry, Alfred, Leven and Robert, and having given Francis and William about 177 acres of land each, made a will dated August 24, 1824, whereby he devised to his daughter Matilda 200 acres of land, and other lands equal in quantity or value to his sons Lud-well, Henry, Horace, Alfred and Leven, and bequeathed *to Francis and William 500 dollars each, to make their quantity of land equal to what he had devised to the rest of his children; then devised land to his wife for life, remainder to his son Robert, and bequeathed sundry specific and pecuniary legacies to his wife and children. This will he cancelled.
    He made another will, dated March 13, 1825, whereby he made a similar provision in land for each of his children, except Francis and William; evincing the intention to give them land of 200 acres in quantity, or to the value of 5000 dollars, estimating the land at 25 dollars per acre; and in a codicil to this will he gave Francis and William pecuniary legacies, to make their land equal to that of the rest of his children. There appeared to be some uncertainty on the face of the will, whether the legacies to Francis and William were of four hundred or five hundred dollars each. William contended that they were of five hundred dollars. This will the testator also cancelled.
    He made a third will, dated also March 13, 1825, with a codicil thereto, dated December 19, 1825 — wherein he evinced a similar intention to make an equal division among his children, excepting Francis and William, as to whom he omitted the legacies of 400 or 500 dollars, to equalize the lands he had given to them with those he had given to his other children. This will was written by the testator’s son Robert, then a minor, and signed by the testator, but was not attested. Francis and William Luckett were named the executors.
    The last will was presented for probate to the county court of Loudoun on the 14th of August 1827, by Francis Luckett one of the executors therein named, and probate refused because there was no attestation.
    On the next day, the 15th of August, the other two wills were presented to the county court. In the controversy which subsequently arose between the heirs of the decedent, two of the justices who sat in court on *that day were examined as witnesses, to prove the purpose for which these wills were produced. According to the recollection of one of the witnesses, it was only for the purpose of comparing them with the last will, and shewing that it conformed with them in the main ; but according to the positive evidence of the other witness, one of the cancelled wills was offered for probate, and rejected.
    On the same 15th of August 1827, an agreement was entered into by Francis W. Luckett, William F. Luckett, Matilda D. Luckett and her husband Thomas H. Luckett, Horace Luckett, Ludwell Luckett, Henry F. Luckett and Alfred Luckett, under their respective hands and seals, reciting that an instrument purporting to be the last will and testament of Leven Luckett deceased had that day been presented to the court for probate, and owing to some legal informality rejected, and that it was the desire of the representatives of the said decedent, that his estate should be disposed of according to the tenour of said will; with a view to effect which, they the said parties covenanted and agreed to, with and amongst themselves, that in the division of the said estate they would abide by the said will. Letitia Luckett the widow, Leven Luckett, and Robert Luckett who was then a minor, though they never executed this instrument, yet assented to it, and desired that it should be carried into execution.
    I. The first suit was a bill exhibited by Horace, Thomas H. and his wife Matilda, Henry, Alfred, Leven and Robert Luckett, children of the decedent, and Letitia Luck-ett his widow, in the superior court of chancery holden at Winchester, against Francis, William and Ludwell Luckett, for the purpose of having specific execution of the agreement of August 15, 1827.
    Francis and William Luckett, in their answers, resisted the specific execution, on the ground that they had executed the agreement without having ever read the last *will, and under a mistaken belief that it contained the same provision giving them each a legacy in money to equalize their shares of land, which was contained in the two former cancelled wills. Ludwell Luckett also, by his answer, objected to the specific execution of the agreement, because it would work injustice to his brothers Francis and William, although it was a matter of indifference to him, personally, whether the agreement were specifically enforced or not.
    II. The other suit was brought in the same court, by William Luckett against all the other parties, alleging, that he had executed the agreement of August IS, 1827 without having read the last will, or either of the two former wills, and under a mistaken belief that all the wills contained the equalizing provision in favour of himself and his brother Francis ; and alleging further, that the agreement refers expressly to the will offered for probate on the same day with its date, and only the cancelled wills were that day offered, so that the agreement does not, literally taken, confirm the last will, and, in effect, leaves it uncertain which was the will thereby confirmed ; and therefore- praying, that the agreement should be set aside.
    The answers of Francis and Rudwell Ruck-ett referred to their answers in the first suit. Robert, Alfred, Retitia the widow,. Horace, Henry, and ThomasH. the husband of' Matilda Ruckett, by their answers; earnestly insisted on the agreement. The answer of Horace Ruckett alleged positively, that both Francis and William Ruckett well knew, when they entered into the- agreement, that the last will contained no provision for making their- lands equal to 200 acres each ; and that the agreement was intended and understood to refer to that will, and no other. . .
    Many depositions were taken and filed -on both sides. But it did not clearly appear whether- Francis and William Ruckett, when they ■ executed the agreement, *were or were not -in ignorance and under mistake, as they alleged, respecting, the provisions of the last will. The evidence developed some circumstances which seemed to make it probable that they were, and others leading to the opposite conclusion.
    The causes were heard together in -the court of chancery; when the ■ chancellor decreed specific execution of the agreement, according to the prayer of the first bill, and dismissed the other- with costs. Francis and William Ruckett appealed to this court ; both of them from the decree in the first suit, and William Ruckett from the decree dismissing his bill.'
    In the argument here, by Reigh for the appellants, and Johnson for the appellees, two questions were discussed': 1. The question of fact, whether Francis- and William Ruckett, or either of them, executed the agreement in ignorance and - under mistake, as they alleged ? And, 2-. Supposing they did, whether equity will nevertheless decree specific execution, upon the ground that the agreement was fair in itself, and calculated and designed to preserve the peace of the family? The counsel. for the appellants earnestly contended, .that all the- cases decided sustaining similar agreements, were cases in which the parties, acting with full knowledge of all the doubts, whether of fact or law, relating to the subject of their agreement, and designing to settle those doubts and prevent or end disputes by a ■ compromise, entered into the agreement with that view ; and that there was no authority whatever for the proposition, that an agreement, because entered into between members of a family, and importing a compromise of their respective rights or claims, will be specifically enforced against parties who executed it in ignorance or under mistake, any more than if it had been an agreement between mere strangers.
    *The following authorities were cited and examined: 1 Story’s Equity, § 161,120, 121, 129-132,134; Id. p. 147, 8, n. 4;-2 Id. § 749, 750, 751, 769 ' Jeremy’s Equity, p. 358, 368, 9; Fonbl. Eq. 107, note (t); Pusey v. Debouvrie, 3 P. Wms. 315 ; Evans v. Rewel-len, 2 Bro. C. C. 150; S. C. Cox’s Ch. Rep. 333 ; Cory v. Cory, 1 Ves. sén. 19 ; Stapilton v. Stapilton, 1 Átk. 2 ; Cann v. Cann, 1 P. Wms. 727 ; Stockley v. Stockley, 1 Ves. & Beam. 23 ; Harvey v.Cook, 4 Russ. 34 ; 3 Cond. Eng. Ch. Rep. 556 ; Frank v. Frank, 1 Ch. Cas. 84 ; Reonard v. Reonard, 2 Ball & Beatt. 182.
    
      
      He decided the controversy in the court of chancery.
    
    
      
      See monographic note on “Specific Performance” appended to Hanna v. Wilson, 3 Gratt. 243.
    
   PARKER, J.

The first suit is to enforce the specific execution of an ageement; the last, to set it aside. The chancellor decreed specific execution according to the prayer of the first bill, and dismissed the other: and I am of opinion that he did right in both cases.

First, Because it is not proved- to my satisfaction, that when Francis and William Ruckett executed the agreement of the 15th of August 1827, they were in fact ignorant 'of the provisions of the last will of their father. The facts' and circumstances tending to shew their ignorance or knowledge are nearly equally balanced, and the burden of proof is upon them, to shew clearly a mistake.

2dly, Because, if they did believe that will to contain what has been 'called the equalizing provision; it was belief induced by gross negligence, which equity ought not to relieve against. All the papers were before them, and theyhad only to examine them before the agreement was signed, to know what they were doing. They were appointed executors in the last will, and the agreement of the 15th of August was drawn up by Francis, with the obvious intention, as I conceive, of establishing -that paper, and no other; and so all the parties understood it. By the slightest diligence, a full knowledge of the contents of this paper *might have been obtained; and it would be to encourage Carelessness .and the most inexcusable negligence, to relieve the parties against the consequences of a solemn contract entered into under such Circumstances. 1 Story’s Equity, ch. 5, § 146.

3dly, It is not clear to my mind that the omission in the last will, of the 400 or 500 dollars to Francis and William Ruckett, renders their portions unequal, or makes the agreement to abide by it inequitable. It would clearly be advantageous to them to get 400 or 50Ó dollars in addition, but I see no proof that they have not got land of as much value as several others of the children- The ■testator himself no doubt thoug-ht, at one time, that it would take 400 or 500 dollars to 'make their lands equal to those of the rest of his children, for he has said so in the can-celled wills; but from his omitting this clause in the last will, we may infer a change of opinion ; and there is no evidence to prove inequality, or to afford a fair ground of presumption that if Francis and William Ruckett had carefully read the last will, they would not have entered into the agreement. Much less is there any evidence to shew that the setting aside this agreement, and bringing the real estate into hotchpot, will produce justice and equality between the children ; but there is every reason to believe the reverse.

4thly, This is an arrangement to abide by the will oí a father, and prevent family disputes. It is, as far as I can see, a fair, reasonable, praiseworthy compromise of the difficulties arising out of a total or partial intestacy, and ought to be upheld, whether the distinction taken by the counsel of Francis and William Duckett be a sound one or not. I am, however, strongly inclined to think that arrangements made between the members of a family, to carry into effect the wills of parents, and to prevent unseemly dissensions about property between near relations, ought, on principles *of public policy, to receive greater countenance from a court of equity, than if the agreement sought to be enforced were between mere strangers. 1 Story’s Equity, § 132, 337.

But in, the view I take of the subject, it is unnecessary to discuss this point by collating the authorities brought to the notice of the court.

I am of opinion to affirm both the decrees.

The other judges concurred. Decrees affirmed.  