1810.

Paynes

V.

Coles.

It will be proper to state, that, about six months after the OCTOBER, commencement of this suit in the High Court of Chancery, the defendant, Walter Coles, instituted a suit in Chancery in Hanover County Court, against Mary Payne, then a widow, and the appellants, John and Mary, her children, then infants, and others, the object of which was to set aside the will of Lucy Coles, his grandmother, whose heir at law he states himself to have been. This suit, on the petition of Mary Payne, was removed by certiorari into the High Court of Chancery. The defendant, Mary, there filed her answer, in which, among other things, she denies that Walter Coles, the complainant in that suit, is heir at law to her mother, Lucy Coles; William Dabney, her great-grandson, then living, being her heir at law: and avers, that the estate which he has possessed himself of, or the greater part of it, was her mother's inheritance. This answer imports to be the joint and separate answer of herself and her children, John and Mary, above named. Several depositions were taken in that cause, and both causes were set for hearing by the counsel for the appellants. They were heard together, and the Chancellor dismissed both bills. Coles did not appeal from the decree against him in the suit in which he was plaintiff.

Although, by the acquiescence of the plaintiff in the decree pronounced in the last-mentioned suit, the decree in that cause cannot be reviewed here, yet as both suits related in fact to the same subject matter, (being in the nature of cross causes,) and were heard together, I am of opinion that the record and proceedings in that suit are so far to be regarded as a part of the record in that which is now before the Court, as that the evidence arising out of the record may be applied by the Court in the consideration of the case before us. But, as to the record in the suit brought in Hanover County in behalf of the appellee, Walter Coles, then an infant of two or three years of age, by Isaac Winston his guardian, against Williams Coles, his grandfather, it appears to me that Mr. Wickham's exception to the admission of it

1810

Paynes

Coles.

OCTOBER, as evidence in this suit was very well founded; there being no sort of privity that I can discover between the present appellants and the defendant in that suit. But, although that record, for the reason just mentioned, ought not to be admitted as evidence in this cause; yet it furnishes a circumstance which, I conceive, might have led the Chancellor to direct an issue to determine whether Williams Coles did, or did not, write the letter charged in the appellant's bill; inasmuch as the object of the bill, thus brought by the guardian of the appellee, was to establish the existence of that very letter, and to obtain a specific performance of the promise therein contained, in behalf of his ward: referring to the said letter as then in the complainant's possession: and the answer of Williams Coles to that bill, which answer is on oath, confesses that he did write such a letter.

The letter of Mr. Williams Coles to Mrs. Darracott (as charged in the bill) contains, in my opinion, a promise founded upon a valuable consideration, the proposed marriage between his son and her daughter, which, although not made either to his son, or To the young lady, would, upon their intermarriage, enure to the benefit of both; and might also enure to the benefit of the issue of their marriage, if not performed during the continuance of it; which promise a Court of Equity might enforce in such manner as might be most beneficial for the parties claiming and en(a) See Tabb titled to the benefit thereof: (a) for, as the former part of the v. Archer, 3 H. & M. 399. promise contained no specific description of the things Chichester's meant to be given as a portion immediately upon the marAdm'r, ante, riage, but merely a promise of giving lands, slaves, and other things, to the value of 3,000l.; if Walter Coles had died intestate, leaving his wife and several children living, I conceive that, upon a bill brought by these parties against the grandfa ther for a specific performance of his promise, a Court of Equity would have decreed such a performance thereof (by apportioning the lands, slaves, and money to be conveyed, purchased or paid,) as would enure to the benefit, not only of the heir at law, but of the younger children, and the widow :

Ex'x v. Vass's

p. 98.

1810

Paynes

V

Coles.

the marriage portion, which she brought, being one of the OCTOBER, inducements to the promise; and the younger children entitled to participate, with the heir, in whatever slaves or personal property might have been intended to be given. As to Coleshill, if it belonged to the grandfather, that part of the promise would have enured exclusively to the benefit of the heir at law. So, probably, would the promised possessions in Ireland. With which we have nothing now to do.

Again; as this was a promise which a Court of Equity would enforce, and execute, so, also, was it capable of being released, entirely, by the husband in his life-time; or by his last will and testament wherein he should make such a provision for his widow as she should accept. It might be questionable how far a release made by a last will and testament would in this case have barred the widow's claim to a specific execution of a marriage promise, made in consideration of the portion which she brought to her husband, if she had renounced all benefit under the will of her husband, and brought a bill against his father for the performance of his promise: but, as she did not, but has altogether acquiesced under her husband's will, it is unnecessary to consider that question.

It appears that the devise in Walter Coles's will of all and singular the remaining part of his estate of any nature or kind soever to his father and mother, and their heirs for ever, operated as a release to the father, of the obligation contained in his letter to Mrs. Darracott, as far as the same was not executed, in his life-time, by the gift of lands, slaves, and other things, to the value of 3,000l.: for, quoad hoc, the promise was a chose in action; and, by a bequest thereof to the husband and wife jointly, if the subject thereof had been in the hands of another, and the husband had received it, or reduced it into possession, the whole would have rested in him jure mariti. But the husband being the person liable to the action on account of this chose in action, and the same being given to him and his wife,

1810.

OCTOBER, the action is thereby extinguished for ever: for he can neither sue himself, nor can his wife sue him: the bequest, therefore, must operate as a release; for if an action be released for an hour only, it is extinct for ever.(a)

Paynes

V. Coles.

(a) Co. Litt.

280. a.

Ch. 330. S C.

vises, 205.

But, with respect to the land at Coleshill, if it, in fact, did belong to Williams Coles, the promise, on his son's marriage, vested in him an equitable title to the same on his father's death, which was devisable by his will, according to (6) Prec. in the authority of Greenhill v. Greenhill, 2 Vernon, 679.(b) 1 Pow. on De- The same, I presume, may be said of the possessions in Ireland. In this case, then, there being a devise in feesimple to husband and wife, they were properly neither joint-tenants, nor tenants in common: for, being considered as one person in law, they could not take the estate by moieties, but both were seised of the entirety, per tout et non per my; the consequence of which was, that neither husband nor wife could dispose of any part thereof without the assent of the other, but the whole remained to the sur(c) 2 Bl.Com. vivor.(c) So that, whether the Coleshill lands were originally the property of Williams Coles, or of his wife Lucy, the fee-simple thereof was in the latter at the time of making her will, and passed to the appellants under the residuary clause in her will. But, as to the slaves and personal property of Walter Coles, the son, I conceive that, if they were reduced into possession by his father in his life-time, as legatee, (and not merely as executor of his son,)(d) the right of ferro, 2 Call, his wife thereto was merged in the marital rights of the husband; and consequently did not survive to her as the right in the lands would.

182.

lace v Tallia

470.

But here we must consider an objection, upon which the decree of the Chancellor, dismissing the appellant's bill, was probably founded, viz. that the existence of the letter from Williams Coles to Mrs. Darracott, as charged in the bill, is neither admitted by the answer, nor proved by any other evidence whatsoever; and, secondly, that it is not proved that the inheritance of Coleshill was in Mrs. Lucy Coles, instead of her husband.

1810.

Paynes

V.

Coles.

It is very true that the defendant Walter Coles has not in OCTOBER, his answer expressly admitted the letter; neither has he directly or indirectly denied it. He refers, for greater certainty, to such proof as the complainants can bring concerning the same; and, as I have before observed, speaks of the letter in various parts of his answer in such a manner as manifests no doubt of its existence. The appellants, or their counsel, probably relying that the bill exhibited by the appellants' guardian for the purpose of establishing and enforcing a specific performance of the promise contained in that letter, would be admitted as evidence not only to establish its existence, but the fact that it was in the appellee's possession, have not given themselves the trouble to exhibit any other proof of it. Under these circumstances, I doubt whether the Chancellor ought not to have directed an issue to inquire whether such a letter was ever written by Williams Coles, or not. So, also, with respect to the title which Lucy Coles had to the estate at Coleshill, which her daughter Mrs. Payne, one of the defendants in the crossbill, who answered in behalf of the appellants, her children, as well as of herself, states to have been the original inheritance of her mother. This, as not being responsive to any direct charge in the bill, may not be such evidence as is sufficient to establish that fact; and yet I am inclined to believe it ought to have led the Chancellor to direct an inquiry into the nature of her title to that estate; as also, what other estate real or personal she was seised or possessed of, as of her own property, at the time of making her will; the residuary clause of which appears to me to furnish sufficient reason for such an inquiry, and to be sufficient to pass the same to her residuary legatees.

I am, therefore, of opinion that the decree of dismission ought to be reversed, and the cause sent back, with directions conformable to what I have said.

Judge ROANE. The counsel for the appellants rightly considered this case under two aspects; 1st. As relative to