#### *Price and Others v. Winston and Others.

Argued, Jan. 29th, 1813.

1. Contracts — Agreement as to Division of Estate-Validity. — A testator having devised certain slaves to his sister, "during her life, and, after her decease, to the children which she shall leave at her death, to he equally divided among them, to them and their heirs forever;” — a written agreement not under seal, entered into, in her lifetime, by all her children then living "to stand to a fair and equal division of said estate among the children who shall be living at her death, and the issne of such as have or may die before her,” is not a nudum pactum, but founded on sufficient consideration, and therefore binding on the contracting parties.

2. Same — Same—Beneficiaries Thereof. — Such agreement enures, also, to the benefit of *the*issue of those children who died before the date thereof.

3. Same — Same—Failure of Participant to Sign— Effect. — But if any of the children, living at the date thereof, refuse to sign it; and there be no stipulation providing for that event; such agreement is thereby rendered null and void.

Upon an appeal from a decree of the Superior Court of Chancery for the Richmond District.

The bill was filed for the purpose of obtaining specific performance of a written agreement, not under seal; in the following words ; viz.

“In the year 1766, Richard Darrel made his last will and testament, which was after his decease duly recorded. In said will there is (among others) a clause in the following words ; viz. Item, after my mother’s death, I lend to my sister Anne Winston, all my negroes, stock and other estate, (which I lent my mother as aforesaid,) during the natural life of her my said sister; and, after her decease, I give and bequeath the said estate to the children of my said sister, which she shall leave at her death, to be equally divided among them, to them and their heirs for ever.” “The said Anne Winston is yet alive ; but several of her children have died leaving issue : now, although it is said, in the above clause, that the said negroes, stock and other estate is to he divided among the children who are living at the death of said Anne Winston, yet, as it seems just, and as we believe it was the intention of the testator, to leave the said estate, not only to the children who were living at her death, but also to the issue of his said sister’sn children who should die during her life, leaving issue. We, therefore, whose names are under written, do bind ourselves, our heirs, &c. to stand to a fair and equal division of said estate, between the children of said Anne Winston who shall be living at her death, and the issue of such as have or may die before her. William Winston, Thomas Price, Barbara Price, William Barrett, Dolly Barrett, Elizabeth Dabney, Robert Dabney, William Terrell, jr. Martha Terrell.”

*It appeared from the bill, that the children of Anne Winston were eight in all; five of whom, (with the husbands of four of them,) signed this agreement. It was alledged that John Winston, one of the sons of the said Anne, assented thereto, but died before he had an opportunity of signing it; that Mary, (the wife of Garland Carr,) one of the daughters, was dead at the time ; and that Cornelius Schenck and Rebecca his wife, who was another daughter, did not sign it; “their place of abode being at a distance from that of the other children.”

The plaintiffs in the bill were the children of William Winston (who also died in the lifetime of the said Anne Winston) together with the children of John Winston and Mary Carr aforesaid: the defendants were Thomas Price, executor of William Darricott who was the executor of Richard Darrell the testator ; the same Thomas Price and Barbara his wife, William Barrett and Dolly his wife, Elizabeth Dabney, William Terrell jr. and Martha his wife, and Cornelius Schenck and Rebecca his wife, the children who were living at the death of the said Anne Winston, and were still living.

The defendants Schenck and wife, in their answer, refused to accede to a division according to the agreement which they had never signed. The other defendants insisted that the agreement was a mere nudum pactum *;*and, if not, that they had signed it, upon this condition and principle and no other, “that all persons interested in the said slaves, (meaning the children entitled thereto under the said will,) should subscribe and accede to the same which having not been done, but Schenck and wife having altogether refused, they considered the writing in question to be no agreement at all.

*34Chancellor Taylor, “being of opinion that the agreement in the bill mentioned was binding on the parties thereto, but that it did not affect the rights of the defendants :Schenck and wife,” decreed a division of the slaves in question, (except such of them as had been allotted to those defendants,) among the other parties, according to their rights respectively.

From this decree an appeal was taken.

*Thursday, March 11th, 1813,

the 'following opinion of this court was delivered by

JUDGE) ROANE).

The court is of opinion, that; although no consideration moved to the appellants in this cause, from the representations of Mary Carr, or of John Winston, in the proceedings mentioned, in the event of his having been dead at the time of signing the agreement therein also contained, yet that the said appellants having, by the said agreement, had it been perfected, obtained a certain interest in the property embraced by that agreement, instead of an uncertain and contingent one, that consideration would have enured to the benefit of the said representatives ; again, to the promiser being as adequate a consideration to support a contract, as a loss by the promisee : but the contract, in this case, having evidently contemplated a division and distribution of the whole estate thereby embraced, and not a part thereof, and that each and every of the living children, and the representatives of such as were dead, should be entitled to receive one-eighth part of such whole; and there being no expressions therein contained adapting the same to the case which has actually happened, of a refusal by one or more of the living children to accede thereto, and, in that event, making the agreement binding pro tanto upon the parties signing the same, the court is of opinion, that there is intrinsic evidence, on the face of the agreement itself, that the same was not intended to be binding, but in the event of all the living children assenting thereto ; such assent being indispensably necessary to fulfil the terms of the agreement, and subject the whole of the said estate to be allotted into eight equal parts.

On this ground, and it being the province of a court of equity to carry the agreements of parties into specific execution, and not to change or alter the same, the court reverses the decree of the Superior Court of Chancery with costs, and dismisses the bill of the appellees.