
    Staunton.
    Trout’s Adm’r v. Trout’s Adm’r & als.
    September 12th, 1889.
    Husband and wipe—Contracts— Case at bar.—Husband conveyed 840,000 00 worth of land to purchaser, and promised to give his wife §10,000 00 to join in the conveyance, and by his will bequeathed her that sum, which he placed in the hands of his son and son-in-law, to be paid her at his death, and the house and lot wherein he resided, for her life. A written agreement was entered into by her with the son and son-in-law, whereby they agreed to pay her the sum of §5,000 each, and she to relinquish all claim to the §10,000 00 provided for her by the will, and to accept the payment oí said sums and the real estate devised to her, in full satisfaction of all right and claim to dower or to a distributive share in her husband’s estate. Afterwards, the written agreement was delivered up to her, and she cancelled it, but retained the bonds. After husband’s death, she received the house and lot and her distributive share of the personalty. In a suit by her administrator against his administrator and heirs: held, there is no principle upon which this agreement can be enforced. (1) It was cancelled and annulled by the parties thereto. (2) It was to be in lieu of a distributive share of the estate, which was not surrendered, but demanded and received after the agreement had been cancelled. In the view taken of the case the written agreement is immaterial.
    Argued at Wytheville. Decided at Staunton.
    Appeal from decree of circuit court of city of Roanoke, rendered at its April term'; 1888, in the chancery cause, wherein David E. Trout, administrator of Martha B. Trout, deceased, against Henry S. Trout, as administrator of John Trout, deceased, and in his own right, and P. L. Terry and wife, his distributees. At the hearing, upon the pleadings and evidence, the bill was dismissed, and the complainant appealed.
    Opinion states the ease.
    
      G. W. & L. C. Hansbrough, and Phlegar, Berkeley & Johnson, for the appellant.
    
      Griffin & Watts, and Penn & Cocke, for the appellees.
   Lacy, J.,

delivered the opinion of the court.

The ease is as follows : The bill was filed at [November rules 1886, in the circuit court of the city of [Roanoke, by the administrator of Mrs. Martha B. Trout, deceased, to enforce an agreement made between the said Mrs. Trout and her husband, John Trout, in July, 1881, whereby he, in consideration of her uniting with him in conveying a certain tract of land to one, Joseph I. Doran, agreed to bequeath to her .at his death, $10,000.

The bill alleges that the said John Trout had died intestate, leaving his widow, Martha B. Trout, surviving him, and unprovided for by will; that the said John Trout was, during coverture, seized of extensive real property; that he had alienated a quantity to his children by a former marriage, his wife uniting with him in the sale; that he subsequently sold $40,000 worth of real estate to the said Joseph I Doran; that his wife, the said Mrs. Martha B. Trout, declined to join in executing the deed of conveyance to the said Doran for the said tract of land, and to relinquish her contingent right of dower therein, until and unless her husband, the said John Trout, should give her a reasonable compensation for such relinquishment, and for the similar rights on the other lands which they had already united in conveying; that thereupon the said John Trout agreed with her to give her $10,000; that he placed in the hands of his son, Henry S. Trout, and his son-in-law, Peyton L. Terry, $10,000, to be paid to her at his death, and made his will, bequeathing her $10,000 and the house and lot in which he resided, for her life; that an agreement in writing was entered into by the said Martha B. Trout and the said Henry S. Trout and Peyton L. Terry, by which the said Henry and Peyton covenanted as follows—viz: “ That immediately upon the death of the said -John Trout, the said Terry and Trout bound themselves each to pay to her the sum of $5,000; and she agreed to relinquish and release all claim to the $10,000 provided for her under her husband’s will, and to accept the payment of the said sums and the said real estate devised to her by the said will in full satisfaction of all right or claim to dower, or to a distributive share in the personal property of her said husband.” The word “ or ” is not distinct enough to be copied, and it is said by the copyist to be either “ or ” or “ and.” Much discussion was indulged in and some testimony taken on this dispute, but we regard it as immaterial. The meaning must have been the same, whichever was actually written. And moreover, in the view we take of this case, the agreement itself is immaterial. The agreement, being signed, was delivered to H. S. Trout; and the said Henry and Peyton each executed an agreement, as follows—viz r

“85,000.—Immediately after the death of .John Trout, I promise to pay to Mrs. Martha B. Trout, five thousand dollars, the same stipulated upon by me in a contract made on this day betweecn P. L. Terry, Henry S. Trout, and Mrs. Martha. P. Trout, the interest to be paid, John Trout during his life,” &c.

The matter stood thus until. Mrs. Trout became dissatisfied with the arrangement, and, upon her complaint, her contract, was delivered up to her and cancelled by tearing therefrom the names, and the will of her husband destroyed; but she kept the bonds of $5,000, and at her death this suit was brought by her administrator, she having survived her husband.

The defence is that -when Mrs. Trout refused to unite in the sale to Doran, her htfSband agreed to provide for her by will, and made his will, as stated; that, subsequently she became dissatisfied with the way the matter stood, and, upon the ground that her husband might not keep the faith, and might destroy his will, if he chose, she asked for the stated contract and two bonds, and received them as security for the due execution of his will, as agreed; that subsequently Mrs. Trout asked for the agreement for inspection, and refused to again deliver it, and tore off the signatures, but kept the bonds.

Mrs. Trout abandoned the above-stated agreement when she found that her distributive share of the personal estate would amount to more than the $10,000 provided for her by the other arrangement; that she did, during her lifetime, receive the real estate mentioned in the will, which was prepared and afterwards destroyed in the lifetime of the maker, and that she was actually paid over $11,000 out of the pei’sonal estate of her husband, the proceeds of the sale to Doran; and that the original agreement and the bonds having been executed to be in lieu of her said share of the personal estate, and she having destroyed the agreement and received the distributive share aforesaid, her administrator could not now collect of the appellees, Henry Trout and Peyton L. Terry, the bonds which were executed to be in lieu thereof. There were depositions taken; the two. $5,000 bonds and the said agreement, Avith the signatures torn therefrom, Avere exhibited, and at the hearing the circuit court dismissed the bill of Mrs. Trout’s administrator, and he applied for and obtained an appeal to this court.

We think the decree of the circuit court Avas plainly right. The bill was demurred to, and the demurrer was overruled by the court, and the bill dismissed on the merits.

The demurrer is ably argued by the learned counsel for the appellees, the bill being claimed by them to be multifarious, being a demand—first, against Henry S. Trout as administrator, and then against him individually for $5,000; and then against Peyton L. Terry on his promise to pay $5,000—thus, it is contended, stating two distinct causes of action AAdiolly inconsistent with each other, and incapable of standing together; citing Universal Life Insurance Co. v. Devore, 83 Va., 267, and other cases.

"We waive this question, however, because in this case, if the bill had been held 'multifarious, it would have been proper to dismiss it at the hearing, and this was done. Hudson v. Cline, 9 Gratt., 379; Berkeley v. Palmer, 11 Gratt., 625; Green v. Massie, 21 Gratt., 256; Barton’s Chancery Practice, 252. And the order of the circuit court is plainly right.

There is no principle upon which this agreement can be enforced. (1) It was cancelled and annulled by the parties thereto; (2) it was to be in lieu of a distributive share ot the estate which was not surrendered, but demanded and received after the agreement had been cancelled. The decree of the circuit court of Roanoke city appealed from is affirmed.

Decree affirmed.  