
    Bannister’s Executors v. Shore.
    April Term, 1793.
    HusSpand and Wife — Private Domestic Convei'sation— Binding Effect upon Hnsbasid in Favor of Future Hus-!jand of Daughter. — A private domestic conversation. between a husband and his wife, wherein the toriner speaks of an intention, once formed, but then relinquished, of giving a certain portion to his daughter, shall not bind the father to give that portion to the future husband of the daughter.
    This was a, bill filed in the High Court of Chancery, by the appellee, as administrator of his wife, against the appellants, to recover ¿1000, which (the bill states) Bannister had agreed to give as a marriage portion with his daughter the appellee’s late wife. The evidence of this promise, was the deposition 'of the widow of Mr. Bannister, who proved, that her husband in different conversations with her previous to the marriage, had declared his intention once to have been, to give his daughter ¿1000. But upon a particular occasion, and previous also to the marriage, he told her, his embarrassments would oblige him to substitute S00 acres of land on Hatchers Run, in lieu of money. Also a letter from Bannister, addressed to his daughter, after marriage, in substance as follows, via. ‘ !I mean to give my daughter in lieu of ¿1000 her intended portion, and I do hereby give to my said daughter, and her heirs, 500 acres of my Hatchers run tract, and 5 slaves, as her dowry in marriage, subject to her husband’s legal claim, whose unconditional right thereto is plain. And if I should be prevented from executing a conveyance to this effect, this shall stand as one — as witness my hand and seal:” to this paper p seal was annexed. This letter was sent to Shore, and in his bill, he acknowledges that he received, and retained it, without any act proving his dissent; but says, that he did not mean to assent to it, supposing that there would be time enough afterwards, to shew his disapprobation. One of the defendants in his answer states, that previous to the marriage, he informed *the appellee, at the request of Bannister, that he intended to give his daughter land, instead of money, with which the appellee seemed well satisfied — another witness proved, that he had seen Bannister and the appel-lee, upon the land mentioned in the above letter, searching out a fit place, whereon to erect buildings. Shore had a child by his wife, after which, the wife, and then the child died. After this, Bannister conveyed the land befor mentioned to his son John, but upon what consideration does not appear.
    The Chancellor decreed the ¿1000 to the plaintiff, from which the executors appealed.
    Wickham for the appellants.
    If Shore be entitled to the ¿1000, his remedy is entirely a legal one, and he might have recovered in an action upon the case. If so, a solid objection will lie to the jurisdiction of the court of Chancery.
    Upon the substantial merits of the case, there seems to be but little difficulty.' — Because a father from the particular situation of his estate, may at one time intend to give a certain portion to a child, will it be contended, that he is afterwards bound to pursue that intention, whatever changes may take place in his fortune, and however inconvenient it may prove to him? Surely jit cannot — besides, this intention, if it can ] be called a promise in the present case, is merely an intended testamenta^ disposition, which is at any time revocable. The answer states, that Mr. Shore was informed ■of this alteration of Mr. Bannister’s intention, before his marriage, and was satisfied.
    This fact, is compleatly established by the retention of the letter or deed, without dissenting from the terms contained in it.
    He ought not after circumstances are altered, to be permitted to say, that he did not assent to those terms, or to complain, of being deceived by them.
    If then, Shore has no title to the money, the next question is, whether he can have any to the land?
    The letter from Bannister, tho’ it may not have all the forms, most certainly contains the substantial parts of a deed. It is signed, sealed and delivered. — Of course, the daughter was entitled to an immediate seisin in fee, in the land, and the husband to the enjoyment of it during her life, and of his own also, as tenant by the curtesy, in consequence of the after birth of a child. But Shore, not having obtained a seisin in fact, during 'the life of his wife, is not entitled to his curtesy.
    *But if he be entitled to his curtesy, still the objection first made-occurs; which is, that he has an adequate remedy at law, to recover the possession, and damages. Upon every principle therefore, it would seem, that the decree for £1000 is erroneous — since, if Shore has any title whatever, it can only be to the land, or its value, for his life, to ascertain which, an issue ought to have been directed.
    Ronold and Marshall for the appellee.
    The objection made to the jurisdiction of the court, is now too late, after answer filed, and no plea in abatement, or demurrer .put in ; see the act of 1787., C. 9. Besides, this court has concurrent jurisdiction with the law courts, in Cases of marriage agreements, 1 Vern. 110.
    As to the merits; — after the father hath declared an intention, to give his child a certain marriage portion, in consequence of which a third person is induced to make his addresses, and thus engage his affections, it would be monstrous if the father could change, or diminish that portion, by any subsequent secret declaration. —2 Vern. 499, 764. The declaration' therefore of Mr. Bannister to his daughter, is an underhanded agreement, and void.
    The proof of Mr. Bannister’s promise to give ¿1000, could not have been more compleat, unless Mr. Shore had demanded it in writing; an indelicacy, which the law did not require him to commit. As to a supposed waver of the money portion, in consequence of his assent first given, and his subsequent acquiescence, the first, is not proved, and the second, is the result of a false deduction from the fact. The answer of one of the defendants, which states-the assent of Shore, is not evidence of the fact, because.not responsive to any allegation in the bill. And if it were, yet Mr. Shore may have conceived, that he was to enjoy the same interest in the land, which he would have had to the money; else, it is not probable, that he would have given up ,£1000 for a life estate in land, which was worth no more in fee. His conduct in retaining the deed, can furnish no presumption of acquiescence, since there was no necessity for expressing his dissent from the terms of it, until the promised conveyance was tendered to him. Besides, the contract contained in that letter, was made with the daughter, at that time, a married woman, and was therefore void: it could not operate, to deprive the husband of an antecedent vested right — a right which cannot be considered as surrendered, but for a real, valuable consideration. But admit that Bannister had an election to substitute land, in the place of money; yet having deprived *himself of the power to do the one, he shall be compelled to perform the other.
    Wickham in reply.
    It is true, that in England, Courts of Equity exercise a jurisdiction in cases of marriage 'promises, because they can, and always do compel the husband, to make a suitable settlement thereout upon his wife. But this is never done in this country. The act of 1787, which has been relied upon, can only apply to cases, not strictly within the jurisdiction of the Court of Chancery, as to the person or property. But surely, this court' may dismiss a bill for the want of that equity, which can alone entitle it to jurisdiction, altho’1 no plea in abatement is put in. If the construction contended for be right, then it will follow, that the courts of law, may by the combination of the parties, be entirely ousted of their jurisdiction, and every subject of controversy, may be transferred to, and decided in Chancery.
    I do not contend, that the express promise of a father, to give a certain portion to the person who shall marry his daughter, is not obligatory upon him. But I insist, that it would be mischievous in the extreme, if general declarations of his intention, and more especially those, made (as in the present case,) in the bosom of his family, should bind him, whatever inconveniences might result from it.
    
      
      See monographic note on “Husband and Wife” appended to Cleland v. Watson, 10 G-ratt. 159.
    
   The PRESIDENT,

(after stating the case, and observing that the clerk had certified, that the infant child of John Bannister the son had been made a defendant, tho’ no process was prayed against him,) delivered the opinion of the court.

There is no evidence in the cause, that the appellee was ever entitled to 'any thing, except the paper referred to in the bill, addressed by Mr. Bannister to his daughter. This was received by the ap-pellee, and retained by him, without any evidence of his dissent from the terms of it. Independant of this tacit acquiescence, it is in proof, that Mr. Bannister and the appellee, went to view the land, spoken of •in that letter, and that the former, in the presence of the latter, informed the witness, that they had been to examine it, for the purpose of -fixing upon a proper situation for a house.

The executor in his answer, states, that he was sent by Bannister, to inform the appellee of his intention to give his daughter land, with which the appellee appeared well satisfied.

But independant of this — there is no proof at all, where on the claim of the ap-pellee can be founded. Mr. Bannister’s public declarations are relied upon. These are denied by the “'executors— But whether this denial be evidence or not, is of little consequence, because that which is relied upon, to sustain the claim, falls very short of its object. What is it? — a private, confidential, domestic -conversation, between a husband and his wife, wherein the former, speaks of an intention once formed, and then for influential reasons altered. And because it was once formed, it is supposed to be irrevocable.

The claim if at all founded, is merely a legal one; and if a suit at law should be brought for the land, it may then be discussed with propriety, whether any act of the appellee, amounted to such a seisin, as to secure his right to be tenant by the cur-tesy.

It was objected, that the conveyance of the land to John Bannister the son, put it out of the power of the father, to perform his engagement respecting it. But the fact is, that by the death of Mrs. Shore, and of her child, in 1784, the land descended to John Bannister, the brother, as her heir at law, to whom it was afterwards conveyed by the father. — But this deed does not appear in the record.

The decree therefore must be reversed, and the bill dismissed.  