OCTOBER, 1810.

Paynes

V.

Coles.

3. Possession was not necessary to give validity to the devise in the will of Walter Coles; for a possibility, if coupled with an interest, is devisable ;(a) and so also is any equitable interest.(b) If the devise had been to Williams Coles alone, (a) Jones v it might, perhaps, have operated as a release of his engageRoe, Lessee of Perry, ST. ment: but, as it is to him and his wife jointly, thereby instiRep. 88. (b)Perry v. tuting the right of survivorship between them, (c) it must be Phelips, Ve- considered as conferring a higher title. If it do not convey (6)2B. Com. this equitable estate, there is nothing for it to operate upon: for it does not appear that he had any thing else to devise by the residuary clause in question. And the circumstance of his ignorance of his wife's pregnancy, though not sufficient to vacate his will, is sufficient to indicate his intention to give all his rights to his father and mother.

zey, jun. 254.

181.

(d) Christ's Hospital v. Budgin et ux.

But it is objected that, with respect to the chattels bequeathed, they vested absolutely in Williams Coles, and did not survive. To this it may be answered, that Walter Coles's claim was not a legal but an equitable one. Williams Coles never complied with, or executed, his agreement. The case, therefore, does not stand precisely on the footing of chattels given to husband and wife absolutely. He did no act to sever the jointure; and unless some act of that kind had been done, it subsisted. In 2 Vern. 683.(d) a case is found where the right of survivorship to the wife took place as to money vested, in mortgages and bonds, in the life of the husband. But if this point be against us, it does not preclude our having an account and decree for the real

estate.

4. The fourth point is clearly against the appellees: for although marriage and birth of a child, concurring, revoke a (e) Wilcox v. Will,(e) either of those events singly does not.(ƒ)

Rootes, 1

Wash. 140.

5. It is said that Lucy Coles never considered herself as (f)7 Bac holding under Walter Coles's will. But it is immaterial what 365. (Grill.

herd v. Shep

edit.) Shep are the impressions of parties of their legal rights: else herd, Doug what would become of the appellee himself, who brought a suit as claiming under the letter which in this suit he disclaims?

36.

6. The 6th objection is founded in an error in fact; for, according to the bill, answer, and evidence, possession was not delivered to the appellee by William Darracott, the administrator, until after the death of Lucy Coles. In fact, she was in possession of all the estate at the time of her death; in what character it is not for the appellee to say.

7. Walter Payne, the executor, having left the Commonwealth; there being no administrator de bonis non; all the estate of the testatrix being in the possession of the defendant Walter Coles; and the plaintiffs, her legatees, being the only persons entitled to the property in question; they were authorized to sue as legatees.

8. All the necessary parties have been made; for the other legatees claim no title to the property now in question.

9. If the suit has not been properly followed up against Price, the administrator of Darracott, that is no reason for refusing us a decree against Walter Coles. We go against him for the land at any rate; and further proceedings may be directed against Price.

Monday, November 5. The Judges pronounced their opinions.

Judge TUCKER. The history of this cause in all its branches, as spread upon the record, is complicated, and most of the facts appear very uncertain.

The bill charges that Williams Coles, grandfather of the appellee, Walter Coles, the elder, being informed that his son Walter was paying his addresses to a young lady whom he supposed to be entitled to a considerable fortune, on the 4th of September, 1768, wrote the following letter to Mrs. Darracott, then a widow, and mother of the young lady. Coleshill, Sept. 4, 1768.

"Madam,

"My son informs me he is paying his respects to your

OCTOBER,

1810.

Pavues

V.

Cores.

1810

Paynes

OCTOBER, daughter, which is very pleasing to his mother and me. I intend giving him now to the value of 3,000%. current money, in lands, slaves, and other things. At mine, and his mother's death, will leave him the land I now live on, with my possessions in Ireland, and some slaves. I am, &c. "W. Coles."

Coles.

It may not be improper here to state, that Coleshill, the place where the writer then lived, is affirmed in the answer of Mary Payne, (the defendant in one of the suits, which were heard together in the Court of Chancery,) to have been the property of Lucy Coles, the wife of Williams Coles, the writer of the letter: and that she, having been married to a former husband named Dabney, had by him a son called William, who dying, has left a son of the same name still living, and heir at law to the said Lucy Coles, his grandmother.

The marriage between Walter Coles and Miss Darracott took effect not long after the date of the above letter. On the 28th of March, 1769, Walter Coles, being ill, made his will, which was proved and admitted to record in October following, by which he gave to his wife the property which he had with her as a marriage portion, and ten pounds for mourning; and then "gave and bequeathed to his father and mother all and singular the remaining part of his estate of any nature or kind soever, to them and their heirs for ever, and constituted his father his sole executor."

A few months after this, Walter Coles, the present appellee, and the only issue of that marriage, was born; not long after which a suit was brought in his name and behalf, by Isaac Winston, his guardian, for a specific performance of the promise contained in the before-mentioned letter, then in the complainant's possession. Williams Coles, the defendant, put in an answer thereto, admitting the letter; which is sworn to the 17th of September, 1771. The deposition of Elizabeth Darracott, the complainant's grandmother, appears to have been taken the 8th of February

1810.

Paynes

V.

preceding; but by what authority does not appear. That OCTOBER, of William Darracott, her son, appears to have been taken the first of June, 1780. The magistrates certify that it was taken in that suit, "according to law." pears to have been no further proceeded in. of counsel for the appellee, Coles, objected to the admission of that bill as evidence in the cause. This I think brings the case within a narrower compass.

The suit

ap

Mr. Wickham,

Williams Coles died intestate, leaving the appellee, Walter Coles, his heir at law: he left also two daughters, from one of whom the appellants, John Payne and Mary Jackson, are descended, the latter being the daughter of Mary Payne, sister of John, the other appellant.

Lucy Coles, the widow of Williams Coles, and grandmother of the appellant, Walter, being the mother of his father, and one of the objects of his bounty in his will, survived her husband, Williams Coles, several years, and died testate, having made a will bearing date March 5th, 1784, which was proved and admitted to record, May 5th, 1785. By that will, after several inconsiderable legacies, "she gave all the remainder of her estate, also her ready money, to her grandchildren Mary and John Payne; (above named ;) also one hogshead of tobacco which was in hand." She also appointed Mrs. Sarah Syme, wife to Col. Syme, trustee and manager for her daughter, Mary Payne (who then resided in Philadelphia) and her children, (John and Mary above named,) and appointed several executors; of whom, as it is said, her grandson Walter Payne alone qualified, and soon after removed himself out of the state, and went beyond seas, without ever possessing himself of any part of her estate, and has never since been heard of.

The bill, which was originally brought by John Payne and Mary Payne, infants, by Mary Payne, their mother and next friend, suggests that William Darracott, the uncle of the defendant, Walter Coles, having obtained letters of administration on the estate of Williams Coles, the deceased husband of Lucy, previously to the probate of her will, had

Coles.

OCTOBER, taken possession of her whole estate, alleging that her slaves

1810.

and personal estate were the estate of his intestate Williams, her husband, and that her lands had either descended upon his nephew, Walter Coles, as heir at law of the said Williams, or was his right in consequence of the before-mentioned letter. That Darracott, having made a crop on the land, afterwards made such a distribution of the estate, as to him seemed 'meet, leaving the defendant, Walter Coles, in possession of the land, and far greater part of the other estate. That Darracott is since dead, having appointed the defendant Price (now also dead) his executor, who took upon himself that office.

The appellants in their bill claim the benefit of the marriage promise contained in Williams Coles's letter before mentioned; and also of a verbal promise which they allege to have been made by him to William Darracott, brother to the lady whom Walter Coles the elder married, viz. that, if the marriage should take effect, he would give his son Walter, at the time of his marriage, his plantation in Goochland County, and sixteen or eighteen negroes, with the stock upon that plantation.

The appellee, Walter Coles, in his answer to this bill, says, that it may be true that Williams Coles, his grandfather, did write such a letter as is set forth in the bill; but, for greater certainty, refers to such proof as the complainants can bring concerning the same. He has understood that the said letter was written at the instance of Mrs. Darracott, his grandmother, and that the said Williams was induced to write it by information received from her, or from other relations of his mother, that her fortune was much more considerable than it was afterwards found to be. In various other parts of his answer he speaks of that letter, and of its operation and effect, in such a manner as appears to me to manifest no doubt of its having been actually written, as charged in the bill. He positively denies the verbal promise.