
    Deborah M‘Call, Hobart M‘Call., Green M'Call, Josiah M'Call, Jabez M‘Call, Levi Coe and Debby his wife, Joseph Babcock and Molly his wife, and Eliphalet Murdock and Ann his wife, against Abigail M'Call.
    If a person, intending to make h family settlement of his estate, in nature of a testamentary disposition, conveys lands to his sons, by sever»! ¡lecds, tk'one^roves ehareerv’ af ter the death of die grantor, will compel wklod'.o óei'í feet the tule of the grantee.
    WRIT of error.
    This was a petition in chancerv, to the superior court, . ' « . brought by Abigail M'Call, against Deborah M'Call and t, OthetS,
    The material facts stated, that were found by the court were: That Arch>pfius M'Call, on the 22d of ^ttltl'-mberi 1784, designing to settle and estate his sons, Hobart, Ozias, Green, Roger, and Walter, did, by several deeds, duly signed, acknowledged, &c. convey farms of ®anc* t0 each °f them, with covenants of seisin and warranty, and to Jabez and Josiah, the heirs of his son Jacob, deceased, he gave an equal share- in money and securities. By the deed to Roger, he granted half the farm on which he lived, and some other lands in Goshen parish; and by the deed to Waller, he granted a farm ill Exeter parish, both in the town of Lebanon. These deeds to Roger and Walter, the grantor retained in his own hands, for further consideration; but; delivered to Hobart, Ozias and Green, the deeds made for them, and to Jabez and Josiah the moneys and securities designed for them; and each of them has ever since possessed and enjoyed the same. Before any delivery of the deeds to Roger, and Walter, the father concluded to give the lands granted to Walter, to his son Roger, and the lands given his son Roger, to Walter; and to effect the same, caused the name of Walter to be erased from the deed conveying the Exeter farm, and the name of Roger to be substituted ; and the name of Roger to be erased from the deed conveying the Goshen lands, and the name of Walter to be substituted, without the knowledge of, Walter, He then delivered the deeds thus altered, and erased, without signing or acknowledging them again, to Roger and Walter, verily believing, and until his death continuing to believe, that lie had thereby conveyed the Exeter farm to Roger, and the Goshen farm to Walter. Roger, under his deed, took and ever since has kept possession of the Exeter farm; and Walter, under his deed, took possession of the Goshen lands, and occupied them until Ms father Archififms died, on the 30th of JYovember, 1798, and continued in the occupation in the same manner until the 20th of October, 1802, when he himself died. Before his death, in October, ¡792, Walter caused his deed to be duly recorded,; and while in possession of the lands under his altered deed, he expended in repairs one hundred dollars. On the 12th of June, 1800. h’n'or having no real estate, except what was derived f r n, the aforesaid conveyance, made his will, and devised aii his estate real and personal, ex- ,-p( a lot of ton aert s, to the petitioner, his wife, a- ■ n xi« her executrix. giving legacies to the, amount of more than 1,000 dollars.
    
      On the 17th of January., 1787, Archippus, the father, made his will, which contained the following clause: “ Item, 1 give to my son Walter, the one half of this lot I now live on, with the buildings thereunto belonging; the other half 1 have given him by deed heretoiore.” Which will was destroyed during the life of Archippus, who left estate to be distributed as intestate estate to the value of 3,650 dollars.
    The deed so altered and delivered to Walter, has been, by the superior court, adjudged to be no evidence at law, of a title in Waiter, to the lands supposed to have been conveyed thereby. And Hobart MlCall, Ozias M'Call, Green McCall, Roger McCall, Ann, the wife, of Klipha-lel Murdock, Molly, the wife of Joseph Babcock, Debhy, the wife of Levi Coe, and Jubez M'C-all, and Josiah Call, the sons of Jacob, deceased, are the heirs of Ar-chippus; who also left a widow Deborah, who is still living. And the heirs, by release deeds of their right, have quieted Roger in the possession of the Exeter farm, conveyed to him by the altered deed, but refuse to quiet the devisee of Walter, in the possession of the Goshen lands, conveyed as aforesaid by the other erased deed.
    From the decree it also appeared, that the court found that Archippus, before his death, gave to his daughters, respondents, portions of his estate.
    And that the court admitted, parol evidence to prove, that the deeds to Roger and Walter had been altered before delivery; anti that the grantor verily believed, that he had thereby, conveyed a title to the land described therein, although such evidence was objected to.
    And the court decreed, that the respondents convey to the petitioner, the lands described in the deed to 
      Waller; and that she be discharged of all claims for rents thereof, &c.
    The general errors were assigned.
    
      Goddard and Gould, for the plaintiffs in error.
    1. This decree could not be made against any of the respondents. Neither irt Jaw, nor chancery, can an instrument be rectified, because the parties were under a mistake in law. But however that might have been, in cases ■where there was a valuable consideration, yet here, there is no consideration, except that of love and affection. And where there is no other, chancery uniformly refuse to decree a specific execution. I Paw. on Co». 341. 2 Poro, on Con, 16. Colman y. Sarrel, l Fes. jun. 51. Amb, 406.
    Walter, in his life, could have sustained no suit at law against his father, for damages, because the conveyance was voluntary, and chancery, therefore, would not have decreed a specific performance. And the case is surely not stronger against the children of Archippus. Besides, chancery requires stronger grounds, to make a decree, rendering an imperfect instrument valid, than to decree a specific performance. In the case of Sta-pleton v. Stapleton, 1 Atk. 10. there were a variety of considerations; Lord Hardwicke lays no stress upon that of love and affection, but goes upon the ground of a valuable consideration.
    In Goring y. Nash, 3 Atk. 186. the ground of the decree was, that it was a marriage settlement, which has always been holder» to be, not merely a good, but a valuable consideration.
    
      
      Cory v. Cory, 1 Fes. 19. was a petition, not for a specific execution, but to set aside an agreement; and the court refused to interfere, because it was a settlement oí a family dispute. The facts, which have taken place subsequent to the deed, can have no operation. There is no analogy between the cases of a parol agreement for a valuable consideration, executed in part, and a voluntary agreement in writing. The cases under the statute of frauds, are all cases where there was a valúa-' ble consideration. Here, if Walter has made improvements, no injury will result to his heirs; for the contract being rescinded, an account must be taken, and they can retain the money expended in improvements.
    And in the settlement of the estate, the advancements to the other sons' will also be considered. Of still less importance is it, that the heirs have quieted Roger in his possession. It can in no way affect the petitioner; they may have compromised with him; but are not thereby bound to yield to the demands now made.
    2. As the decree respects the daughters. There can be no equity in favour of the petitioner as against the daughters. If this is a family settlement, and if, as it respects the brothers, there was a valuable consideration, the daughters were not actually, or constructively, parties to it. They are, then, in equal equity with the devisees of Walter; and having the legal title, and equal «quit}', a court of chancery will not compel them to relinquish it, but suffer the law to have its course. 1 Fonb. 311, 3S2. M'tf. 215. It would be hard, indeed, if having received nothing from the bounty of their father, they arc now to be deprived of what the law would give them. The court, indeed, have found, that the daughters received portions; but this fact, if material, must appear upon the petition. The plaintiff must recover in chancery, as well as at law, secundum allegata, et pro-
    
    
      
      bata. At law, a special verdh t cannot supply defects in a declaration; a bau declaration is uc m-'.tf aided by a special verdict than by a demurrer. Bat if the fact be immaterial, the court having found it, will not render it material. It can, therefore, have no effect ill the case.
    3. As it respects the dowress. It nowhere appears, that any provision has been made for the widow. She ought not, therefore, to have been compelled to convey. In England, the rights of a dowress are much regarded; -she stands upon higher ground than a purchaser for a valuable consideration. She is entitled to a discovery from a purchaser of real estate from her husband, who had no knowledge of the marriage. 1 Fonb. 19, 20. 151, 152. Her equity is superior to that of heirs. 2 Eq. Cas. Abr. 383. A contract by her husband, for a valuable consideration, cannot be enforced against her. This contract could not be . enforced against the creditors of Archififius RE Call. 3 Atk. 388.. It cannot, therefore, be enforced against one whose rights are more carefully regarded.
    Although a husband in this state may by deed deprive his wife of dower, it by no means follows that he can effect the same thing by an executory agree meat, the enforcing of which depends upon the discretion of the court, regulated by circumstances. 2 Pow. on Con. 221.
    It Is said, that Archififius is a mere trustee. This is to assume, that chancery would enforce the contract against him. But were it so, there are now other parties, whose equity is as strong, and whose legal claims are preferable.
    Again, our statute provides, that the wife shall have dower in the estate of which the husband died seined 
      
       A court of equity cannot decree against the provisions of a statute. Webb v. Fitch et al. 1 Rooty ITT. I Forth 17. 21, 22. 4 Vin. Abr. 396. 2 liq. Cas. Mr. 383 The husband being seised of this estate, at the time of his death, a court of chancery cannot say his widow shall not have dower in it.
    
      Ingersoli, for the defendant in error.
    1. The facts proved lay a foundation for a decree against some of the respondents.
    If, as is contended, the agreement on the part of A.r-chififms M'Call was voluntary, it would not have been competent for him, in his life-time, after his son, in pursuance of it, had taken possession, and made improvements, to have refused to fulfil the agreement. A court of chancery would not permit him thus to ensnare his son, to induce him to expend his time, and money, upon the faith of a defective conveyance; but would have protected the son in the possession thus acquired. No case occurs directly in point; but it is analogous to the cases of part performance, under parol contracts to convey lands. Chancery, in such cases, will decree a conveyance, notwithstanding the statute of frauds; and one ground is the fraud of the party contracting to convey. He shall not be permitted to take the benefit of the labours of another, who trusts to his engagements.
    And if this is to be considered a voluntary conveyance, it would be as effectual, against all but creditors, as a conveyance for a valuable consideration. But this is not a voluntary conveyance. It is a family provision; 
      the consideration is blood; and the father did no more than by the ties of natural justice he was bound to do. The sons, then, who have received estates iro n their father, in consequence of this family arrangement, are not in equal equity with'the representatives of Walter* He was as much entitled to his farm, as they were to theirs. They were all sons, and each entitled in justice to the portion designed him. Unless, therefore, the other sons give up their estates, they never can claim in a court of equity that Walter shall give up his. By the deed to Roger, the heirs have recognised this family arrangement; and therefore ought not to be permitted to dispute it.
    2. As it respects the daughters.
    It is found in the decree, that the daughters have received portions of the estate. It is said, this can have no effect, because it is not stated in the petition. But it is now too late to say this, it could have been taken advantage of only by objecting to the proof of that fact. As it has been proved, and found, it must be considered as well found.
    But aside from this, the daughters, heirs of their father, can be in no better situation than he would have been in; and must convey, provided he would have been compelled to. Besides, this must be considered as a conveyance for a valuable consideration; a provision made for a family; “ estadng” his sons, in the language of our statute. Such conveyances are highly favoured in a court of chancery, and have been peculiarly protected. Cory v. Cory, 1 Ves. 19. Goring' v. Nash, 3 Atk. 186. Stapleton V. Stapleton, 1 Aik. 2 — 8.
    3. As it respects the dowress.
    Had this deed been, what the parties meant, and supposed, it was, effectual to convey this estate to Waltert the widow could have had no claim. Then as chancery considers what is agreed to be done as actually done, from the time of the agreement, she can be considered in chancery, as having no right from the date of the defective instrument. The estate was, then, equitably, Walter's; and the husband cannot here be considered as having died seised. The land, therefore, did not descend to his heirs; ard for the same reason, his witlow has no right to dower. Tnat the rights of a dowress arc to be regarded is not denied; but. the question now is, what, are her rights.
    That a court of equity will not relieve against the express provision of a statute is not contended; but the inquiry here is, does the statute apply to cases of mere trusts ? This was not an executory agreement by Ar-chififiug McCall; but an agreement executed, though imperfectly executed. He had no more equitable title, than if the conveyance had been perfect. And she who claims only by virtue of his title, can have no equity, which he did not possess.
    
      
      
         Slat. Csnn, tit. 51. c. I. s. 1.
    
   By the Court.

The deed from Archippus M‘Call, accompanied with the actual delivery of possession, under the circumstances, and in the manner, in which that deed was made, and delivered, cannot be considered, as an executory contract; but may be considered as a voluntary, though <i= fective conveyance, which passed the whole equitable interest at the time, out of Archi/ifius, and vested it in Walter M‘ Call; and though voluntary, being made with a view to a family settlement, and in the nature of a testamentary disposition of the estate, it is such a conveyance, as a court of chancery may validate, and when validated, and the defect in the conveyance cured, it will have relation to the time of the delivery of the deed, and not only bar the widow of her right of dower, but destroy all claims of the heirs of Archippus to the estate in question.

Judgment affirmed.  