
    *MARCH TERM, 1802.
    COEAM — SHIPPEN, CHIEF JUSTICE, YEATES, SMITH, AND BRACKENRIDGE, JUSTICES.
    Lessee of John Stein and Johanna Magdalena his wife, and Anna Sabina Silvius against James North.
    A letter by an uncle, inviting an unmarried nephew to come here from Germany, and promising, if he proved obedient and followed all his directions, that he should be the heir of his whole estate, can neither operate as a will, nor such a contract, whereof specific execution should be enforced.
    Ejectment for a house and lot of ground in the city of Philadelphia.
    It was admitted that Casper Silvius died seized of the premises in fee, in October 1793.
    It appeared in proof, that he left three sisters living in Germany, two of them being the lessors of the plaintiff, and the third named Catharine, who intermarried with one Goble, by whom she had issue three children, and afterwards with one Palaster, by whom she had issue two children. On the 18th November 1785, Casper Silvius wrote a letter from Philadelphia, to his sister Catharine, wherein among other things, he desired her “ to send over her son by her first husband, and he would “ pay his passage, and if he proved obedient and followed all “ his directions, he should be the heir of his whole estate, provided he should arrive here as a single man, and not be in- “ cumbered with a train.” Henry Goble, eldest son of the said Catharine, came from Germany, in consequence of his uncle’s letter in 1786, a single man, continued with his uncle 7 or 8 weeks, then got employment in a brewhouse, and afterwards in a tavern as a bar-keeper for three years. He then went? to Car-lisle, where he kept store and died. Casper Silvius was very illiterate, and could not write. Hence it did not appear what advances he made for his nephew, or whether he had paid his passage money. The evidence was contradictory as to the terms they lived on, some of the witnesses asserting that they appeared to agree with each other; and others who lived in the house of Silvius, declaring that they disagreed, and that the uncle found much fault with him.
    The defendant claimed under Henry Goble, who on the ioth August 1795, conveyed the premises for a valuable consideration, reciting the above letter of his uncle as a devise to him, with covenant of general warranty. Joseph Pfeiffer, the defendants’ landlord, held the house and lot under four other mesne * 1 Conveyances, in two whereof there were also clauses of 3 5J genera] warranty.
    It was insisted for the defendant, that this letter might legally operate as a will. Any writing, by which the intention of the party to give or dispose of lands or hereditaments appears, provided such intention is not contrary to the established rules of law, will amount to a devise. The statutes of 32 Hen. 8, c. 1, and 34 and 35 Hen. 8, c. 5, have prescribed no form of words, in which the instrument, purporting a devise, shall be made. Pow. Devises 12, 13. If the intent of the donor be to make a will, the instrument will operate as such, though an actual delivery be made of it as a deed. 1 Cha. Ca. 248. S. C. Finch 195. If one express by a letter, what is his will respecting the disjDO-sition of his land, it is sufficient. Moore 177. pi. 314. Notes in writing to draw a conveyance to feoffees, but with blanks for their names, thereby to charge lands with portions for younger children, in pursuance of a power, held to amount to a will. 1 Cha. Ca. 264. A paper writing left with a will and written after it, though no codicil, yet held to be a declaration of the intention. x Cha. Rep. 268. A will is defined to be a declaration of the mind, in disposing of an estate, and to take place after the death of the testator. Carth. 38.
   Sed per curiam.

Clearly this letter cannot operate as a will. Though no particular form of words is necessary to give validity to a will, yet all the books agree, that the a7iimus testandi is an indispensable ingredient. There must be an advised purpose to make a present disposition of the party’s estate. Here it is but the signification of an intention to do a future act, and so not the testament itself, which must contain a present and perfect consent. Swinb. 8, 9.

It was then insisted, that if the letter could not be construed as a will, it might be considered as a contract, which would be enforced in equity. The agreement was reasonable in itself. The uncle, though married, had no children. He desired a prop to lean on in his advanced age, and accordingly pressed his sister to send over an unmarried son, by her first husband, who on the sole conditions of his obedience, and coming without followers, should be the heir of his whole estate. The nephew, in pursuance of the invitation, left his native country, and deserted all his prospects there ; and if he has been obedient, and followed all his uncle’s directions, of which the present jury are the competent triers, he has become a purchaser for valuable consideration. The known rule in equity is, that what ought to r* be done shall be considered as done, except in the case [*326 of an estate tail contracted to be sold. 2 Vez. 634. It is of no moment that there is no seal to the instrument. An agreement may be made out in equity, by proving an instrument, from the nature of which equity will infer an agreement. 1 Pow. on Contracts 323. And from a subsequent transaction, equity will raise an agreement accessory to a precedent transaction, where the circumstances warrant such an inference. Ib. 325. Thus, it has been decreed that bonds have been considered as evidences of agreements, and obligors held to a specific performance, and not allowed to forfeit the penalty. 10 Mod. 517, 518. 2 Equ. Ca. Abr. 22, pl. 20, 21. A letter will in equity amount to an agreement, and be binding on the person signing it, if another person by acting upon it shew his acceptance of the propositions therein contained. 1 Pow. Contr. 287. As in Moor v. Hart, 2 Cha. Rep. 147. S. C. 1 Vern. 201. Warkford v. Foltherly, 2 Vern. 322. S. C. Freem. 291. And Bird v. Blosse, 2 Vent. 361. A consideration may arise, by doing or permitting somewhat to be done, to the prejudice or loss of one of the parties. 1 Rol. Abr. 22, pl. 23. It is not absolutely necessary, that the consideration for a contract, imports some gain to him that makes the contract; but it is sufficient, that the party in whose favour the contract is made, foregoes some advantage or benefit which otherwise he might have taken or had, or suffers some loss in consequence of placing his confidence in another’s undertaking. 1 Pow. Contr. 344. This rule meets precisely the present case; and as it was said by Ld. Hardwicke, in Grosvenor v. Lane, 2 Atky. 181, the letters written by Mr. Peake to the aunt of the intestate, must be taken not as a mere proposal only, or a bare hint of his intention, but an absolute appropriation of the fortune by the second husband for the benefit of the infant. So in the instance before the court, the letter wrote by the uncle is more than a proposition, and amounts to an absolute engagement to make the nephew heir of his whole estate, on certain terms which have been complied with. One shall not recover in ejectment against the terms of his covenant, that the defendant shall quietly enjoy the land. Cowp. 600.

After the cause had been fully argued by the counsel for the plaintiff, the Chief Justice delivered the unanimous opinion of the court to the jury, that this letter was not evidence of'such a contract as ought specifically to be executed under all its circumstances. Courts of law in this state have in a variety of instances exercised chancery powers, in order to prevent injustice. The necessity of the case gave rise to this jurisdiction, which has been sanctified by the constitution. [*327 But to enforce the specific execution of contracts, which a court of equity would not decree, would set all property afloat, and be dangerous in the extreme. The decreeing of a specific performance is in the discretion of the chancellor, and must not be considered as an universal rule. In many instances it has been refused'. Here the uncle has reserved to himself the sole right of judging of his nephew’s obedience to his directions, and has not submitted the determination of that point to a court and jury. The agreement was not absolute on the part of the uncle, but merely optional with him whether his nephew should succeed to his estate. Nor are we authorized to say in the present dispute, that his conduct was unreasonable. If Henry Goble has sustained any damages under all the circumstances of the case, his personal representative may have the same fairly assessed by a jury in a proper suit. His aunts were co-heiresses with his mother, and are entitled to two third parts of the premises, and it is fortunate for the landlord, who sets up the present defence, that he can re’cur to three covenants of general warranty to repair himself in damages, in case of a recovery against his tenant.

Cited in 2 Watts 150.

Messrs. M. and S. Levy and Brinton, pro quer.

Messrs. E. Tilghman and M‘Kean, pro def.

Verdict pro quer. for two third parts of the premises.  