#### WILLIAMS *v.*POPE AND OTHERS.

Father’s settlement of his estate by book account amongst his children — nuncupative will— agreement among the heirs.

Where a father, with his children, before his death, determined how much of his estate was due to each child, and entered the determination in the shape of an account on his account books, that is not a nuncupative will, though made in presence of the two witnesses, nor is it a conclusive account against the children, which they cannot dispute.

A nuncupative will to be operative, must be proven within the time allowed by law, and it is only good as it relates to personal estate.

An agreement by heirs after the death of their ancestors as to the distribution of the estate, may be enforced in equity.

The husband may dispose of his wife’s share of the personal estate of her ancestor, and if he agree as to the real estate it is valid as to his interest, and if she refuse to comply, damages will be assessed and decreed against him as an equivalent.

A contract about land in parol, if partly executed, will be enforced.

A married woman’s land can only be conveyed in Ohio by a deed, in which she unites with her husband.

Chancery. Bill by the administrators and a part of the heirs of Williams, against the other heirs, alleging that Williams, on his deathbed, in presence of two witnesses and his children, determined how much of his estate was due to each child, and entered on his book, in the form of an account. To the wife of Pope, one of the defendants, he allowed less than to the other children, as she had been raised by another person, and contributed little to make the estate. To Stephen, another defendant, he allowed nothing, as he had conveyed land to him in full of his proportion. After the *407father’s death, the children met together, and all but Pope and wife agreed to abide by the father’s distribution; and a compromise took place, by which Pope and wife were to have ten acres of land and forty-one dollars, and was to release to the administrators and other heirs. Pope and wife took possession of the land and since hold, though they refuse to release. A deed from the other heirs has been executed and tendered. Pope and wife have filed a petition for partition of the residue of the lands of the estate. The bill prays that the contract may be executed, and the partition stayed.

Pope and wife answer, and admit the meeting to compromise, and that a project of a compromise was proposed, which they encouraged. Admit, also, that they have possession, and that a'debt of forty-one dollars, due by Pope to the estate, has been relinquished. They deny that théy agreed to the compromise, or that a deed was tendered to them. They allege that they assigned their interest to the defendant, Lewis. General replication.

*C. Pease,*for the complainants.

*R. Stone,*contra.

By the Court.

The arrangement between these heirs, that is urged as a nuncupative will, has no legal efficacy as such. A nuncupative will *is only good*as to *personalty.*The agreement in question embraced both real and personal estate. Independent of that consideration, this agreement has never been executed or proven according to the law allowing such wills.

Neither can the arrangement avail here as an unqualified acknowledgment of a debt, which can be enforced. If it were simply an acknowledgment, each party might assert the claim upon the estate; but such acknowledgments are open to explanation, which, in the case before us, would show the entries made for another purpose than to acknowledge a debt.

The remaining question calls upon us to decide, whether the agreement for the division of the estate is such as can be enforced in this Court. It appears from the admission of the parties, and the proofs in the cause, that all interested in the estate of Williams assembled together after his death to settle and distribute it. Pope and wife disagreed to the adjustment of the father. A compromise followed, by which they agreed to receive a deed for ten acres of land, a pair of oxen worth forty or forty-five dollars, to cancel the account against them for about fifty dollars, and execute a release. The oxen were delivered, the account discharged, and they took possession of the ten acres of land, and have ever since held it. A deed has been tendered to them, but they refuse a release. It appears *408also, that a fair proportion of the estate would be about three hundred dollars, and that the former advances of land, oxen and account would exceed that sum at least one hundred dollars. The contract is favorable to Pope and wife, who object; it is a conscionable bargain, and though in parol it has been partly executed, and therefore, is not within the statute of frauds. It was a contract whichPope could legally make, so far as it regards the interest of his wife in the personal estate, and as to his life estate in the land which descended to his wife. In this state, a married woman’s interest inland can only be conveyed by a deed, in which she unites with her husband. She can make no other contract concerning it, that has legal efficacy. The undertaking of Pope, in this case, is, therefore, limited to his own life estate in the realty, and to the entire interest in the personalty. He will be decreed to release to the complainants, and enjoined from proceeding in the partition. This will leave the wife’s interest in the realty, to be hereafter asserted as she may be advised, if she survive her husband.

The interest of Lewis is not so fully disclosed as to present it clear of suspicion, or to entitle it to our protection.

The case may go to a master to ascertain the damage to the complainants, in case Pope’s wife refuses to unite in the release, to report to the next term.