1810. 4th of October, 1803, by a decree dismissing the bill with OCTOBER, costs; from which decree no appeal was taken. In that suit, Mary Payne, one of the defendants, and daughter of Lucy Coles, alleged in her answer, (among other things,) that the said Lucy was twice married; first to Cornelius Dabney, and afterwards to Williams Coles; that, by Cornelius Dabney, she had issue a son, William Dabney, who had issue several sons, of whom Isaac Dabney was the eldest, and he, dying in the life-time of the said Lucy, and after the death of his father, left issue several children, of whom William Dabney was his eldest son; and that the said last-mentioned William Dabney (who is still alive) was, at the time of the death of the said Lucy, and now is, her heir at law; and, "as the estate came by the said Lucy altogether, or as to the greater part thereof, as her inheritance, this defendant is advised that, if the said Lucy had died intestate, and if the said estate had been left to pass by the rules of inheritance at the time of her death, the complainant never could have claimed it as her heir, so long as any of her descendants of the name of Dabney were in existence." A number of depositions were taken in that suit; proving, on the one hand, that Lucy Coles's will was duly executed, and, on the other, that she had no idea that the property now claimed belonged to her, but considered it as belonging to Walter Coles, her grandson. No evidence appeared, either to support or contradict the allegation, that "the estate came by the said Lucy altogether, or, as to the greater part thereof, as her inheritance." Warden, Nicholas and Wirt, for the appellants. Wickham, for the appellees. On the part of the appellants, the subjects in controversy were considered in two points of view: 1. As to the real estate, which Lucy Coles held in her own right; and, 2. As to the estate comprised in the marriage promise. Paynes V. Coles. OCTOBER, 1810. Paynes V. Coles 1. It must be clear that, if Lucy Coles held any real estate in her own right, it belongs to her devisees under her will. In the bill exhibited by the appellee Walter Coles to set aside that will, he called upon the defendants, Mary Payne and others, to say, whether the said Lucy Coles in her life-time did not at all times declare that she considered the title to the land and other property which he held, derived from his grandfather, to be completely vested in him, independent of her, and that she could not dispose of the same by will or otherwise. To this question Mary Payne answered that Lucy Coles had said, (and this defendant moreover asserted that the fact was so,) that the greater part of the Virginia estate in question did not belong to him as heir of his grandfather, but was her own inheritance. In this particular the answer was responsive to the bill, and therefore evidence: at any rate, if not direct or conclusive, it was sufficient evidence to have produced a reference to a Commissioner, or a Jury, to ascertain the fact, for the benefit of the infants who were co-defendants. The decree was, therefore, erroneous in not directing such reference. 2. As to the estate comprised in the marriage promise of Williams Coles to Walter, the appellants say that this promise to Walter Coles an interest which he had a right gave to dispose of either by will or contract; that he did dispose of it by his will to his father and mother jointly; that Lucy Coles took it by survivorship, and devised it to them. They do not claim, as being originally the objects of the marriage promise, nor by virtue of consanguinity, but as purcha sers under him for whom the promise was made, and who exercised his lawful right in devising it. On the other side, it was contended, 1. That, since the appellants had no right to sue at law for the property in ques tion, a bill will not lie in their behalf, for the specific execution of the supposed marriage agreement; their claim being highly inequitable: for a Court of Equity has a discretionary power of withholding relief, and will not compel specific performance in a hard case. 1810. Paynes V. Coles. 2. There is no sufficient proof of the agreement charged GCTOBER, in the bill; for the record from Hanover is not evidence in this suit. It is true that the appellee claims under Williams Coles, the defendant in that suit, and was himself the plaintiff; but the appellants were not parties; neither was Lucy Coles (under whom they claim) a party; and the rule must be reciprocal. The record could not be used as evidence against her; and, therefore, cannot be for her. Besides, a bill in Chancery, when not sworn to, is merely suggestion of counsel, and not evidence against the plaintiff. (a) But, if (a) Doe, lessee of Bowerman, it were evidence against an adult, it cannot be against an in- v. Sybourn, 7 T. Rep. 2, 3. fant; for even the answer of an infant by his guardian, is not Peake's Ere. evidence against him. And, as to the answer of Williams Coles; he says he was deceived and imposed upon in writing that letter; and his statement must be taken altogether.(b) (b) Peake's 3. Admitting the agreement to be proved; the real estate agreed to be settled did not pass by the will of Walter Coles, as he had neither an equitable nor legal seisin; and the personal estate being devised jointly to his father and mother, and being in their possession, the whole vested in the father, in his own right, and as husband, and no part survived to his wife. 54. Ev. 55. 4. The birth of the appellee Walter Coles operated as a revocation of his father's will, in reason, though not by authority. A subsequent marriage and birth of a child are a revocation: but no good reason can be assigned why, at common law, the birth of a posthumous child, for whom no provision is made in the will, should not be considered a revocation, as to such child; especially since, according to the case of Brady v. Cubitt,(c) an implied revocation may be (c) Doug. 39, rebutted by parol evidence of the actual intention of the tesNo authority can be shewn against the right of the posthumous child in such a case. In Terby v. Terby,(d) it (d) 3 Call, was decided that, where a man had children at the time of tator. *Note. By our act of 1785, c. 61. (sce 1 Rev. Code, p. 160, 161.) such is now the law, as to every last will and testament made when the testator had ao child living. 40. 334 OCTOBER, the will, the subsequent birth of a child was no revocation; but that case was not like this. 1810. Paynes V. Coles. 5. Supposing a right to have survived to the wife; the property did not pass, and was not intended to pass by her will. 6. Possession having been delivered to the appellee in her life-time, and retained by him, the appellants are bound by length of time. 7. The appellants as residuary legatees of Mrs. Coles are not entitled to sue on the death of her executor, but the suit can only be maintained by an administrator de bonis non of her estate. 8. If their suit be maintainable, all the legatees of Mrs. Coles should have been parties. 9. The suit has not been properly followed up against Price, the administrator of Darracott, and other defendants. In reply, to the first of these points, it was said, there was no injustice, or hardship, in the claim of the appellants. The marriage promise was made for the benefit of Walter Coles, between whom and Miss Darracott the match was about to take place; not for the benefit of the issue; about whom nothing was said. Suppose it had been complied with, and a settlement made: Walter Coles might surely have sold or devised the property. In like manner, his devise of his interest in the promise was equally good in equity. The enforcement of marriage articles is uniform in Courts. of Equity; the construction there being the same as at law; and this is always done according to the terms expressed in the articles. The cases of settlements are very numerous; and it will be found that the issue is always expressly provided for, where it is intended; and this is done by a covenant that the estate shall be conveyed to the husband and wife for their joint lives, and afterwards to trustees for the benefit of the children of the marriage; to prevent the re (a) 2 Bl.Com. mainder in their favour from being defeated by alienation.(a) But, if this be not done, no case can be found of a refusal 1810. Paynes V. Coles. to decree execution of a marriage agreement, on the ground OCTOBER, that the issue was not provided for, and would, therefore, lose the estate. In Chichester v. Vass, the suit was brought by Vass, in his own name, and he recovered; though that case was not so strong as the present, in favour of the exclusive right of the husband. There are cases, too, which shew that Courts of Equity are not so active on behalf of the rights of issue, as it is supposed, even where designated in the settlement. (a) Courts do not enter into ideas of ab- (a) Cann v. stract justice in enforcing agreements, where parties are explicit. The circumstance, then, that the issue was not provided for, is no bar to our suit. Cunn, 1 Vern. 480. Clarke v. 2 Buckle, 2 P. It is not true, in all cases, that, where an action cannot be brought at law on an agreement, there a suit will not lie in equity for a specific performance.(b) On the contrary, (b) Cannel v. if the contract be good at law, in its origin, and a Court of Wms. 244. Law, either from the situation of the parties, or from other causes, can give none or inadequate relief, the discretion of the Court of Equity is at an end, and it must give a decree. But, indeed, the question about specific execution does not occur in this case; the only question being whether Walter Coles had a right to devise his own property. 2. As to proof of the letter: it is faintly denied, or rather admitted, by the answer of the defendant Walter Coles. But if that be not sufficient, it appears from the bill filed in Hanover Court by his guardian, that the original letter was in his hands. The appellees, then, cannot be expected to produce it. The reason of the rule, which regards a bill as merely suggestion of counsel, cannot apply in this case. Neither ought the rule that depositions taken in a suit between different parties are not to be read to prevent our availing ourselves of the depositions by which the letter is clearly established. The reason of that rule proves it inapplicable. It is because the party against whom such depositions are offered has had no opportunity to cross-examine : but here the case was otherwise. |