#### MARY B. SMITH *against*DAVID SMITH, Adr. and others.

Gifts made by a husband to his -wife during coverture will be supported “in equity againstt.ee representatives of the'deceased husband. Contracts by the husband with the wife for a valuable consideration will be enforced against its representatives.

The widow of a deceased vendee of land who has paid the purchase money, may by a bill against the heirs of her late husband and the heirs of the vendor, compel a conveyance of the land by the heirs of the vendor to the heirs of lie vendee, and an assignment of dower to herself.

The. case ol Garner *v¿.*Garner Bush. Eq. 1, cited and apptoved.

The plaintiff charges in her bill that at the time of her marriage with tier iate husband,§13 ry.-in Smith, she was the owner of a tract of land in Johnston county, ti-hich her husband wat» desirous of selling, and at his request she *<:*.flsented. to sell and convoy it "upon bis agreeing that he would convoy to her a-.:: consideration for her land, another tract of land or =>.ves*of equal value with her land, or in some other way to meare her from loss. That her land was sold for $2,170, anti in due form of law conveyed to the purchaser, and the price was received by her husband, who was tenant by tire curte-y initiate. Before his death be bought of one Whitley, a tract of land which he intended to have conveyed to her in fulfilment of Ms promise to her: he paid the whole j rise to'Whitley, but "Whitley never made any conveyance to him. Her husband died possessed of the land bought i.’um "Whitley, and of many slaves which arc in the possession of David Smith, his administrator. The bill is against.tne administrator and heirs of ber husband, and against the heirs of Whitley and prays that the contract between her and her late husband may be specifically executed by .the" conveyance of the land *31bought of Whitley, to her, by his heirs, or by the conveyance of slaves to her by the administrator oí her husband; or that the money received by her husband as the price of her land may be paid to her, and that the heirs of Whitley may convey the land sold by him to the heirs of her husband,-and that she may have her dower in it.

*Moore*for the plaintiff.

No councel for the defendant.

Ratixe, J.

The right of the plaintiff to a decree that the heirs at law of Tbaddous W. Whitley shall execute to the heir at law of her deceased husband Bryan Smith, a conveyance for the tract-of land mentioned in the pleadings, for the purchase of which there, had been *a*contract, in the lifetime of the parties, and that she may have dower therein, is undoubted. It is equally clear that she can not have a decree for the specific execution of the contract made between her husband .and herself, to have the said tract or any other tract of land or negroes of equivalent ■value, settled upon her in consideration of the price of the laud sold under the circumstances mentioned in the bill. The contract which she made with her husband was by parol, and therefore void by the statute of frauds, (Rev. Code, ch. 10, sec. 11), so far at least as a specific execution is sought to he enforced. But, we think, the wile is entitled under the contract to .the proceeds of her land which was sold in consequence of it, subject to the interest which her husband as such, had in the land. It is well settled ' that S, husband may, after marriage, make gifts or presents to his wife which will he supported 1» equity against himself and his representatives. Lucas *vs.*Lucas 1 Atk. Rep. 270, Garner *vs.*Garner Busb. Eq. 1, Atherley on Mar. Set. 331. If a promise made, without a valuable consideration, toa wife, though imperfectly executed, will he enforced-*32■against Ms personal .representatives after his death where. his intention had remained unaltered until that event, much more ought it to be enforced Where she stands in the. position of purchaser of the intended benefit for a fall and fair value. See Adams Eq. 97.

The only question about which there can be any doubt, isas to the amount to which the wife is entitled. After giving to the argument of her counsel that attention to Which for its ability and ingenuity it Is entitled, and'after mature deliberation 'on the subject, we are of opinion that she can not claim the whole price of her land, with interest from the death of her husband, but that the sum due her must he estimated upon the following principles. The contract for the settlemem upon her of land or slaves, being made void.b.v the statute of frauds, must be put entirely aside, bo far as it entitles her to the money for which her land was sold, the contract must be considered in tMs court as having been executed at the time when the price of the land was received by herhusband : and as he had an interest for life in the land as tenant by the curtesy, he had the sime interest in the proceeds of the sale. Tvo relative value of hi.» interest and' 1 sirs must be ascertained as of Ibas time, and as the facts then existed, otherwise the maxim in equity that what ought to have been, done, will bo considered as done will be violated. See Adams Eq. fbj. When the amount to which the wife is entitled is thus ascertained, she will he entitled to it, increased by the interest thereon from the time it came into the hands of her husband.

The argument against this mode of estimating the relative rights of the*tonant for life and the owner of the reversion, founded upon the idea that' it is better to make calculations upon certain and ascertained facts, than upon •uncertain and contingent events,_ will be found in practice *33more'plausible than just. Suppose the owner for life of a valuable male slave, were to agree with the owner of the ulterior interest, to have him sold for the purpose of dividing the proceeds according to their respective ownerships, and the life tenant should die a week after the sale, would it be a just and fair execution of their agreement, to give his personal representative nothing, or next to nothing ? The death of the life tenant in so short a time, was certainly not within the contemplation'of- the partios, and therefore ought not to control a division which was intended to.be made between living men, having each his chance for a long or a short life. At. the time when the contract was made, it is manifect ^fchat the interest of the life tenant of such a slave would be regarded as nearly his whole value, and it must be presumed that the parties had refer-enee to that in making their agreement for a sale. Such being the case, subsequent events can not fairly be allowed to change the principle upon which their contract was founded. The true rule is, -whrt we have above indicated, and the plaintiff may have a dectee for the value of her interest in the price of her land, ascertained according to that rule.