#### *William Towles et al. vs. J. G. Burton et al., administrators.*

Testator, having several children, bequeathed to a married daughter a very inconsiderable legacy, and to a son a double portion, taking from the son a bond, conditioned to hold one-half of the personal property, which he was to receive of his father’s estate, for the benefit of the married daughter and her children. Eleven years after, the testator executed a second will, with similar .provisions. Parol evidence was *held*admissible to show, that when the second will was executed, and afterwards, the son acknowledged the trust; and, ho being dead, his representatives were ordered to account to the *cestui que trusts.*

Parol evidence is admissible to show a trust in personalty bequeathed, the bequest being absolute. ' '

*Before*DeSaussure, Ch., *at*Newberry, July, 1831.

The Circuit decree, from which the case will be sufficiently understood, is as follows: *

DeSaussure, Ch. It appears that William Burton, Sr., made and executed his last will and testament on the 5th May, 1812? by which, among other things, he directed that, after the death of his wife, Phebe, to whom he gave a life estate, all his personal estate, including all his negroes and moveable property, should be divided as follows: his son, William, was to have *147one-half, his daughter, Phebe Ragan, should have' one-fourth, and his son, Aaron, one-fourth, to them and their heirs. It appears, further, that the testator, at that time, had another son, Gideon Burton, to whom he bequeathed fifty dollars, saying he, the son, had already received a full share of his pfoperty. The testator had also another daughter, Scythia Towles, to whom he bequeathed a cow and calf, at the death of her mother. The testator does not say, in this bequest to his daughter, Scythia, that the small bequest of a cow and a calf to her was because she had received her share of the estate, and that it was not intended to be so was obvious, from the fact that he caused his son, William Burton, Jr., to execute a bond, on the said 5th May, 1812, (the day of the date of the will,) in the presence of Kirk and Cleland, two of the subscribing witnesses to the will, in the penal sum of eight hundred dollars, payable to Aaron Burton, one of the sons and legatees of the testator.

The condition of the said bond was, that William Burton, Jr., should, after the decease of the mother, pay to his sister, Scythia Towles, the one-half of the personal property which he was to receive at his mother’s death, in cáse her husband, Daniel Towles, should then be deceased. If not dead, then the said William Burton, Jr., should not be bound to pay it, only at his discretion, in small payments, in such property as, he should think best for her and her children. . This bond discloses the reason why the testator gave to his daughter, Scythia Towles, only a cow and calf. It was to exclude her husband, Daniel Towles, from getting the property and squandering it, for he was a prodigal, spendthrift and *drunkard,*and the testator had been obliged to assist his unfortunate 'daughter and her children for a livelihood. -It appears, further, that the testator, on the 19th August, 1823, made and duly executed another will and testament, in the presence of three witnesses. This will is nearly a copy of the former — the variations are small. To his son, Gideon Burton, he bequeathed two hundred, instead of fifty "dollars,' given by the former will, repeating that he had already provided for him. He bequeathed one slave, to which*148ever of his children the slave would choose for a master or mistress. In other respects, it is similar to the former will. He bequeathed to his daughter, Scythia Towles, a cow and calf. The testator also directs that, after the death of his wife, Phebe, all his personal property (except the negroes) should be sold, to pay his debts, and afterwards the whole of the balance of the said property to be divided as follows: one-half to his son, William Burton, Jr., a fourth to - his son, Aaron Burton, and a fourth part to his daughter, Phebe Ragan. Phebe, the wife of the testator, died in his life time ; and the testator died in April, 1826, leaving his said last will and testament in full force and virtue. After his death, William Burton, Jr., the son, proved the will, and had it placed on record in the office of the Ordinary, Avhere Mr. Aaron Burton, who had charge of the bond above mentioned, also deposited the said bond. After some time, an appraisement and division of the personal estate was made, and the slaves were divided into four lots, of which Aaron Burton drew one, Phebe Ra-gan drew another, and William Burton drew two lots, and has used and employed them for his own purposes. Daniel Towles hath since died, and also his wife Scythia. The complainants are the children of Scythia Towles, and claim the fourth part, or share, of the slaves, which they insist their mother was entitled to by the provision of the bond executed by their uncle, William Burton, which was substantially a trust, in behalf of their mother and themselves, of one-fourth of the slaves received by William Burton, after his mother’s death. This demand having been refused, the suit is brought against the representatives of William Burton.

It was contended, on the part of the defendants, that the bond in question, having been executed on the same day with the first will of the testator, (5th May, 1812,) must be considered as connected therewith and dependent thereon; and, as that will was superseded (not revoked) by another and a later will, the bond fell through, and was no longer obligatory or operative. The bond does not name or directly refer to the will; but that it was intended to refer to it is obvious, because it *149provides that the obligor, W. Burton, was to pay his sister, Mrs. Towles, one-half of the personal property which he was to receive at the death of his mother, and it was by the bequest of that will that he was to receive one-half of the testator’s personal estate, at the d.eath of his mother. The new will repeats the same provisions, and under them, the legatee, William Burton, received one-half of his father’s personal estate. The bond is as applicable to the last will as the first. It is a general engagement or promise of the obligor, (in the irregular form of a bond,) to pay or deliver to his sister one-half of the personal property of the father’s estate, which he should receive on his mother’s death. He has received one-half of his father’s personal property, and W. Burton and his representatives are bound to comply with the bond, and deliver a moiety of the slaves to his sister’s children. It was argued that, at all events, no more than the penalty of §800 could be recovered, and that the complainants should be sent to law to recover that. I do not think so. It is not' a bond to pay a sum of money. It is conditioned to do certain things, under certain contingencies: to deliver the slaves, if Daniel Towles was dead; if not, then to hold them, for the benefit of Mrs. Towles and her children. This was a trust, and a very sacred one. It was the contrivance of the anxious father, to protect an unfortunate daughter and her children from the rapacity and prodigality of her husband, whose habits were bad ; and he confided this trust to his son and her brother, in whom he had full confidence ; and he, or his representatives, ought to perform their trust, and deliver the property, with compensation for the use and hire of the slaves. There is, however, a great deal of other matter in this case, which must now be considered. The complainants offered parol evidence to prove that, at the time of the execution of the second will, on the 19th of August, 1823, the testator asked for the bond of the 5 th of May, 1812, which had been executed by his son, William Burton, and had expressed a desire that it should be taken care of, as it might be wanted after his death; also, that William Burton, Jr., was the person *150who desired the will to be altered, and mentioned in what particulars ; and that Mr. Tinsley, who drew the new will of 1823, had the old one before him, as his guide, and his understanding thereof. The admission of the parol evidence was opposed, and argued at great length, and with great learning and ability. It was finally agreed that the parol evidence should be received for the present, but that the Chancellor should subsequently make up his judgment as to the admissibility of such evidence, and admit or reject the same, áccording to the judgment he might form. The parol evidence, thus conditionally admitted, was to this effect:

*James W. Tinsley*was examined under a commission, and he testified, in writing, that he knew the parties, and was called upon by William Burton, Jr., to draw a will for his (Burton’s) father, a few days before its actual drawing and date, but he cannot remember the time; that, in pursuance of that request, he did attend at the house of William Burton, *Sr.. and*drew the will. William Burton, Jr., Aaron Burton, and Charlotte Knight were present. At the time of drawing said will, he had before him a prior will, which had been executed by William Burton, Sr., some time in 1812. The witness understood that there had been a bond given by William Burton, Jr., to Aaron Burton, at the .time of the execution of the first will; drawn by Kirk, for the purpose of securing one-half of the personal estate given to William Burton, Jr., for the benefit of Mrs. Towles and her heirs. At the time witness was drawing the will of 1823, Aaron Burton was looking for the bond. The bond was considered to be still good, both by William Burton and his father, whilst he was writing. The understanding of the witness was, that Mrs. Towles’ part of the personal estate of her father was willed to her brother, William, to prevent her husband from spending it. He was considered insolvent. Witness does not think that testator would have willed more than a fourth part of his personal estate to William Burton, Jr., if it had not been for this understanding between him and his son, William Burton, Jr. The testator was an old *151man, and appeared to be under the influence of William Burton, Jr., his son, or, as the witness expresses it, adhered much to his son, William. The witness himself, in his answer to the 15th interrogatory, says, that William Burton, Jr., called on him, to go with him to his father, as he wished to make some alteration in his will. On their way, William Burton, Jr., told him he wished his father to make some particular alteration in his will ; that he wished the lines dividing the lands between himself and his brother Aaron altered; also, he stated, that he expected to be able to settle up with Mrs. Towles and her children, in time, without giving up the negroes. On the cross examination, the witness, Tinsley, testified, that William Burton, Sr., appeared to him to be of sane mind, and no undue influence was used. The third cross interrogatory inquired of witness whether the property bequeathed to William Burton, Jr., by his father, in the will drawn by witness, was not William’s absolutely: and was it not said that the testator gave this legacy (half his personal estate) .to his son William, in consideration of his having already done many acts of kindness towards Mrs. Towles, and in consideration of the testator’s expecting him to continue the same generous course of conduct towards her, if she should survive her father. . To this interrogatory, the witness answered that it was not, according to his understanding. The sixth cross interrogatory repeats the inquiry, whether the bequest of the personal estate to William Burton, Jr., was not to be absolutely his, without any trust, and that it was left to his free will to give his sister, Mrs. Towles, what he thought proper, for her maintenance, during her natural life. To this the witness answered, that was not m-y understanding.

The parol evidence given at the hearing was very full. The substance, only, will be stated here :

*Squire Herbert*proved the execution of the first will, in 1812, in the hand-writing of Isaac Kirk, one of the subscribing witnesses ; also the bond of William Burton, Jr., 5th May, 1812.

*Aaron Burton*(brother of William Burton, Jr.) testified that he was present at the.execution of the will of 1812, and of the *152bond. He kept that will, and the bond, until after his father’s death. When the time was appointed to draw a new will, in 1823, his father, William Burton, Sr., requested witness to go for the bond; he went, but could not find it immediately. His wife found and brought it after the other will (1823) was drawn. William Burton, Jr., said it was not worth while to have taken the trouble to have hunted for the bond : he would have done as much for his sister, (Scythia,) without the bond as with it, and that he would rather give her two dollars than take one from her. It had been concluded by his father to draw a new bond ; but Tinsley said it was as good a bond as he could draw, and no new bond was drawn. But his father said to the wife of the witness, take the bond home and take care of it, as it may be wanted after my death. The witness told his father the bond was not large enough. His father answered, it was merely to show his son, William, what he intended. His brother, William, was present at both periods, (1812 and 1823.) His brother, William, in 1823, and at other times after, acknowledged his liability,' under the bond, as much as ever, and that he was to let his sister, Mrs. Towles, have half the property bequeathed to him, and never disputed it till some time after his father’s death, when there was a family meeting. He then said that he was told by counsel that the bond was of no account — it was revoked. The witness knew of no reason why his father should give half his personal estate to William Burton, and none to Mrs. Towles, except her husband’s conduct, which made him wish to save it for *her;*and his father stated expressly, that the reason he did not give the property on the face of the will was, because of her husband’s spendthrift and prodigal conduct. His father, William Burton, Sr., died in April, 1826. The division of his father’s negroes was made about Christmas, 1826. They were divided into four lots. The witness drew one lot, his sister, Mrs. Ragan, got one lot, and William Burton, Jr., took two lots. There were four distinct lots, and the names of the slaves were placed on four different papers. An objection was made, at the time, *153that one of the lots was not specially assigned to Mrs. Towles. The witness spoke to his brother about it. He answered, if he had done wrong, he would correct it at any other time. One of the appraisers and dividers had gone away. The witness never heard his sister say she had got her share of her father’s estate. On a further examination of Aaron Burton, he testified that his father, in his lifetime, gave a good deal of corn and bacon to the Towleses, and the daughter of Mrs. Towles worked for them. After the father’s death, and on reading his will, their sister, Mrs. Hagan, said to William Burton, Jr., how do you get half, and I get only a fourth ? I reckon you have many charges against sister Towles’ share. He answered, No, he had not the scratch of a pen. When William Burton, Jr., carried his father’s will to the office of the Ordinary, the witness carried the bond and placed it with the will. His brother, William, knew it, and did not object.

*Elizabeth Burton*(wife of Aaron Burton) testified, that she was not present at the making of the will, for she did not go until the evening; then saw William Burton, Jr., there. Witness carried the bond of William Burton, Jr., and the old man was told of the bond. William said, it need not to have been brought, as he would have acted as well without it as with it. Old Mr. Burton said, Betsy, take the bond home and take care of it, it may be wanted after my death. Aaron Burton remarked that the bond was too small, as his property had increased. The old man said it was of no consequence, as the object of it was merely to show that the half of what he (William) got was for his sister Towles’ family. When Mrs. Ragan seemed to find fault with the will, giving half to William Burton, Jr., he said, the family of his sister Towles was to have half of it, and he had no charges against her. Cross examined, this witness said, she had never heard Mrs. Towles say she had got more than her share of the estate.

*Phebe Ragan*(sister of William Burton, Jr.,) testified, that soon after the making of the will of her father, in 1823, she saw her brother, William Burton, who told her his father had *154willed half of his property to him, but that he was to hold half of it for Mrs. Towles and her children. He has frequently repeated this. His wife wished him to give up to his sister, Mrs. Towles, her lot of negroes, as it was her right. He said they would waste and part with them; to which his wife replied, that was not his business. This last conversation was after the division, and at his own house. Her brother, William, answered, he did not know what he should do with the share or lot of the Towleses, at that season of the year. Mrs. Towles was greatly the object of her father’s affection. > He said he had done a good deal for her. Yet she and her children had done a good deal for him, in the way of service, and he had no charge against them. Daniel Towles, the husband of her sister, Scythia, died about Christmas, 1829. After their father’s death, his will was read, his body lying a corpse before them. Witness said to her brother, William, she supposed he had charges enough to take all of Mrs. Towles’ share in the negroes. He said he had tro charge against her and her family. She has heard her brother, William, acknowledge, that of the legacy to him, Mrs. Towles and her children were to have half, and that this was done to prevent her husband from spending it. This was told her in the life time of her sister, Towles, who died about 1825. Has heard her father say, as well as William Burton, Jr., that Mrs. Towles was to have half the negroes. The father helped Mrs. Towles a good deal, through his sons William and Aaron, and his son-in-law, William Ragan. He said Mrs. Towles and her daughters had rendered him services, which he was willing to consider as equivalent to his advances. There was some talk of a suit against William Burton, Jr., before his death, but none was brought. Some of the daughters of Mrs. Towles were of age at father’s death, but not William.

*Claries Floyd*was called, upon about four years ago, (last Christmas,) by Wm. Burton, Jr., to make a division of the negroes of the estate of his father. He said he wanted the division in four lots ; one for Mrs. Ragan; one for Aaron Burton; one for himself, and one for Mrs. Towles ; and that he should *155keep Mrs. Towles’, and pay the money to her children. The division was made by witness and two other persons. The slaves were appraised and placed in different lots with the valuations. The lots were drawn for. *The two*first *for Wm.*Burton. When he drew, he said he had got two choice lots. Witness said he ought to discriminate and set down which was for Mrs. Towles. W. Burton said, it was of no consequence, as he would, at any time, put those two lots in a hat, and draw to ascertain, which should be his, and which Mrs. Towles’. One of the appraisers was gone, when this conversation took place.

*Cross-examined.*Aaron Burton came during the drawing. W. Burton did not say he had ever paid Mrs. Towles or her children, for the negroes. W. Burton was of good character.

On the part of the defendants, the following witnesses were called:

*Mrs. Rebecca Bonham,*lived at old Mr. Burton’s about seven years ago, before, and at the time he made his will. She heard him say he had willed part of his property to Wm. Burton, Jr., who was to give it out to her, Mrs. Towles, as she called for it. She did not understand it to be to her for life, or how. Old Mrs. Burton sent a middling of meat to Mrs. Towles. The old man grunted, and said, that Mrs. Towles had had as much as he could give any of his children, and said, Mrs. Ragan had not had as much as she ought to have had. It was the general opinion that Mrs. Towles had been much helped by her brother, W. Burton, and she, Mrs. Towles, said to witness, her brother had been good to her, and helped her, or she would have suffered. In the life time of W. Burton, Jr,, heard him say he had offered the Towles as much as he intended, and if they would not take it, they might resort to the law. Was present at the making of the will of 1823 by Tinsley. Don’t remember whether W. Burton, Jr., was present; does not remember that a bond was produced at the time of the execution of the will; nor any thing about it.

*Cross-examined.*W. Burton, Jas. Burton, Aaron Burton, *156Miss Knight, Mr. Tinsley and witness were the only persons present that she recollects; can think of no other; was not living with old Mr. Burton, when Mrs. Towles died ; cannot tell the exact time when old Mr. Burton complained about sending the bacon — perhaps before ; did not hear the terms offered by ffm. Burton, Jr., to the Towleses to settle.

*Mary Vickory.*Lived at old Mr. Burton’s till she married; heard the old man say, his black people would not go out of the family. Heard him say, he had given to Mrs. Towles as much as he would give any of his children. Understood the old man to say, that the slaves were to be Billy Burton’s own, but he was to supply Mrs. Towles with what she wanted during her life. But did not understand there was to.be any thing for her children.

*Cross-examined.*Does not remember the words used, except that he did not want the negroes to go out of the family.

*Robert Floyd.*Was one of the appraisers and dividers. After the division, some one asked, which negroes belonged to Mrs. Towles ? W. Burton said the property was his, by the will, which said he was to have half the property. Witness told him he ought to go to Court and sue for his property* Knew of an attempt to settle by W. Burton and the Towleses— talked of an arbitration. Both parties were contentious. But witness and another, (J. Red,) acted as arbitrators, sent for by W. Burton, to go and make a settlement. Witness and Red talked it over. Does not know if Red was employed by W. Burton. Witness and Red made a sort of conclusion of what property Capt. Burton said Mrs. Towles had had — does not remember the amounts — nothing put on paper. W. Burton and A. Burton were to give Ragan $400, to make him equal to their shares under the will. W. Burton gave Ragan his note for $200 — thought Mrs. Towles ought to allow half of the $200, to W. Burton. Witness went in and made proposals to them— was at the division when Aaron Burton drew his share — a little elevated — not habitually drunk. W. Burton, a very correct man — does not remember what was the valuation of W. Burton’s *157or Mrs. Towles’ share — heard them talk about a bond of $800— does not know from or to whom, nor any thing about it — proposed Capt. Burton’s paying the bond of $800, (on his being allowed this $100, and some little accounts.) Witness is not sure what was proposed as to the bond or negroes, but thinks they agreed to the proposals, though he cannot remember what they were. W. Burton went to the house *to get*paper. Mr. Towles said he wanted interest on the money, or hire of the negroes — either of them would satisfy him. W. Burton said, he would not allow it, nor have any thing more to do with it— said there was the bond, recover it if they could.

*Cross-examined.*The witness said the Towleses were not willing *to*pay any thing. But Mr. Burton required them (the Towleses) to pay one-half of the $200, to be paid to Hagan to equalize him in his shares of the estate — did not understand much about the bond, but supposed it was a bond Wm. Burton was to pay, for he said there was the bond, and they might sue and recover. In their estimate and calculations, they did not estimate the negroes. The Towleses claimed the negroes or the money (interest on the bond, or appraisement, cannot tell which.) The only points of misunderstanding were about the $200 to Ragan, and hire of the negroes or interest on the money for the slaves. W. Burton flew off — the appraisement was about Spring, 1827.

*Re-examined.*Witness does not remember what accounts were brought in. This-witness’ evidence was obscure, entangled, and uncertain.

*Margaret Harper*testified, that Mrs. Burton and Mr. Burton let the Towleses have a good deal of corn meal and bacon — never heard Mrs. Towles speak on the subject. Heard old Mr. Burton say, he had given Mrs. Towles more than he expected he would have to give to any of his other children.

*Cross-examined.*Saw many articles furnished by old Mr. Burton, but never saw any thing go from W. Burton’s to the Towleses — cannot tell when these conversations took place, loose talk between the old man and his wife. Witness does not know *158whether what the old man said related to supplies and support, or to property giren.

*Richard Bob*testifies, that he lived near Mrs. Towles’; has heard her say, she has got the rise of $700 out of her father’s estate, not more than twelve months before her death. That it came out of her father’s estate.

*Cross-examined.*About a year before, she died — her father would get (Buck) Wm. Burton, to furnish her, but it came from her father’s estate, not from William himself.

*Sackfield Adams'*lived between old Wm. Burton’s and Mrs. Towles’ — old Wm. Burton sent meat and meal to Mrs. Towles from one to two or three weeks — it appeared-,as if they got their chief supplies from the Burtons.

*Cross-examined.*Witness testified,' that Mrs. Towles told witness she got supplies from her father, and after his death, from W. Burton, Jr.

*Mrs. Walker*testified, that her husband was a magistrate. She has heard Mrs. Towles speak to her husband. Said she lived badly with her husband. He told her she had good friends, and was not so hadly off as she said. She said she had good friends who supplied her, but what she got from them came out of her share of the estate. Mrs. Towles would come to her husband to sign notes as her security — he would refuse, she would say, do not be afraid, if I fail, Buck Burton, (Wm. Burton,) will pay. W. Burton supplied the Towleses with provisions.

*W. Goggans*testified, that he furnished wheat and meal, to Towles, and Wm. Burton paid him for it, about $21.

*Cross-examined.*This was about fifteen or sixteen years ago.

*Mrs. Brooks*testified, that Mrs. Towles came to buy corn, and said that W. Burton would pay for it, .and it was to come out of her share of her father’s estate; this was nine or ten years ago.

*Cross-examined.*Witness says, Mrs. Towles sent her two sons for the com. She said her father or brother would pay for the corn, and it was to be taken out of her share of her father’s estate.

*159*Evidence in reply. William Brown*testified, that Daniel Towles, son-in-law of Wm. Burton, Sr., had some of old Mrs. Towles’ property sold — -witness bought two slaves for James Towles, and gave his own nóte — Sukey and Jim ; it was paid for out of old Mrs. Towles’ money. These negroes went into the possession of Daniel Towles and his family. The money was paid out of old Jane Towles’ funds.

*Mr.*Dunlap, for complainants, produced a deed for land from Walker to W. Burton, Jr., 123 acres, in trust for the children of Mrs. Towles, consideration, $329 paid by W. Burton, Sr., 7th August, 1818.

*Mrs. Ragan.*Knows of Súkey and Jim, purchased with the funds of old Mrs. Towles. Her father, (old Wm. Burton,) never paid a dollar for them. Witness does not know that her father paid any incumbrances for negroes for the Towleses. Her father told her, that two negroes and the land were paid for by the old people for the Towleses.

*Mrs.*Stewart, (witness for defendants.) Mrs. Stevens, one of the complainants, told her that a negro boy who was present, was to work at her uncle Buck’s, (W. Burton, Jr.) She said, that W. Burton had done a great deal for her. That her uncle Buck had tried to get old W. Burton to raise money to save the negroes; the old man and woman were reluctant, but at last did agree to raise the money to pay for the land and negroes.

*Cross-examined.*The negroes were three, called Sukey, Jim, and Frank. The deed of James Towles to the children of Daniel and Scythia Towles, for Sukey, Jim and Frank, dated 21st February, 1817, produced.

The admissibility of all this parol evidence is now to be decided on. The general rule is, that parol evidence is admissible to explain — but not to contradict, alter, add to or diminish a written instrument. The whole doctrine is clearly stated and illustrated in the new American edition of Fonblanque’s treatise on Equity. Book 1st, ch. 3, sec. 11, note to page 170 (201.) To the general rule there are exceptions, as where a declaration, showing the design or intention, is made before a deed is exe*160cuted, in cases of fraud or trust, though no trust is declared in writing — and parol evidence is admissible to show that an absolute deed was intended as a mortgage. • In *Stevens vs. Cooper,*1 Johns., Ch. 429, Chancellor Kent states the doctrine; see 1 Fonb. 171, 2, (201.) Though in the direct application of parol evidence to the contents of written instruments, the rule is the same at law and equity, to reject such evidence, yet the Courts of Equity will open the written instrument to let in equities arising from facts distinct from the sense and construction of the instrument itself. 1 Bro. Ch. Rep. 350. The result of the great mass of cases, founded on the essential principles of justice, is, that relief can be had on any deed or contract in writing. The mistake, or fraud, may be shewn by parol evidence, and relief granted to the injured party, whether complainant or defendant; 2 Johns. Ch. 596, in which the cases are reviewed. With respect to the admission of parol evidence, in cases of wills, it is let in in various cases to explain ambiguities as to the persons or things meant by the testator, and in cases of fraud or mistake, where the intention of the testator was misconceived by the drawer of the will, or he was imposed upon. In cases where the testator desired a clause to be inserted, and he was assured by his executor or heir, that his wishes should be complied with, parol evidence has' been admitted to prove that. Upon the whole, 1 am satisfied that parol evidence is admissible. It is collateral to the provision in the will. It goes to prove that though the will was regularly and understandingly made and executed by the- testator, as is expressed on its face, yet that he meant to create a trust for the benefit of his daughter, and that evidence goes to support and explain the bond given by the legatee, Wm. Burton, Jr., to give effect to the trust. The son and legatee, Wm. Burton, understood and accepted the trust — -acknowledged it at the execution of the second will, and repeatedly after his father’s death. I feel bound, therefore, to admit this parol evidence; and the moment it is admitted, the case is at an end. There was never a clearer case made out in a Court oí justice of a trust, and that too, confided by a father to a son, in *161whom he had confidence, in favour of an unfortunate daughter and her family:: a trust fully understood and assumed by that son; who rendered it unnecessary to renew the bond on the execution of a new will by his declarations to' his father. There was some slight contradictory evidence. , But the great and overwhelming evidence, from unimpeachable and unimpeached witnesses, establishes the trust beyond the shadow of a doubt, and it is the duty of the Court to oblige the representatives of Wm. Burton, Jr., to perform it. The pretence set up, that the supplies furnished Mrs. Towles and her family, by her father," and by her brother William, were equal to her share of the estate, are swept away by the clear proof of several witnesses of the declarations, that they had no claims or charges against her or her family. It is, therefore, ordered and decreed, that the defendants deliver up to the complainants the slaves to which they, are entitled, of the estate of Wm. Burton, Sr., and that the Commissioner settle which of the lots or shares drawn by Wm. Burton, Jr.,-shall belong to the complainants; and it is referred to the Commissioner to report what sums are due for the hire and labour of the slaves, deducting the- supplies furnished by Wm. Burton, Jr., to Mrs. Towles and her family, after the death of her father. . Costs to be paid by the defendants.

The defendants appealed, and.moved this Court to reverse the decree, oh the grounds.:

1. Because the evidence, on which the decree predicates the trust on the part of - the testator, is incompetent: and as there is neither evidence in writing of the nature and extent, or the assumption of the trust, the decree ought to be reversed, and if there be any liability, the complainants should be left to then-remedy at law on the bond.

2. Because the negroes are decreed to be delivered up, which interferes with the rights of third persons, and is impossible to be performed, and if there is to be’an account for them, and *162their hire, it should extend to the supplies furnished by Wm. Burton, Jr.,' before, as well as after the death of his father.

Caldwell, for appellants.

The opinion of the Court was delivered by

JOHNSON, J.

We are very clearly of opinion with the Chancellor, that in the absence of written evidence, parol was admissible to show that one-half of the personal estate bequeathed _ by Wm. Burton, Sr., to his son, Wm. Burton, Jr., was'bequeathed-by the testator, with the knowledge of the legatee, on the confidence that he would take and hold it in trust for his sister, Mrs. Towles. It is certainly no violation of the rule of evidence, which excludes parol evidence to add to, vary or alter' a will or other writing; for the will takes effect precisely in the manner expressed on its face. Wm. Burton, Jr., takes one-half of the residue of the personal estate. The foundation of the plaintiffs’ claim rests on a parol contract between the testator and *his son*William. The transaction, as explained by the most unequivocal proof, supposes, that the testator held to the legatee a lan-! guage something like this: “lam desirous of providing for my daughter, Mrs. (Towles, but her husband is a prodigal, and will waste it if I give any thing to her directly; ‘to prevent this, I propose to bequeath to you directly, the portion which I intend as a provision for herand that the legatee consented .to accept it upon these terms, and promised on his part to fulfil his wishes. Now here is a clear and explicit promise, founded on full consideration, (the legacy,).in relation to personal estate ; and where, is the rule of law which avoids it? (see *Stickland*vs. Aldridge, 9 Ves. 516.) But we'incline to think this evidence was superseded by the higher evidence of- the bond of Wm. Burton, Jr., of the 5th May/ 1812. That was made, it is true, in direct reference to the will of the same date, but it contains a direct .undertaking on the part of Wm. Burton,- Jr., that he would hold “one-half" of the personal property which he was to receive” of his father’s estate, to the use of Mrs. To>vles, and it was one from which he could not discharge himself by any act *163of his, and would apply to that or any other will. Ás a contract, it was immaterial whether it preceded or foliowéd the execution of the consideration on which it was founded. He would have been as much bound by a bond made in reference to a will contemplated to be made ten years after, as if it had been contemporaneously executed. The fact that the testator gave, in the last will, also a double portion to this son, and nothing, comparatively,-to his daughter, Mrs. Towles, in a will intended otherwise to put all his children upon a footing of equality, goes very far to show, of itself, that the will was made in reference to the bond, and on that account would be binding. The trust proved by the parol evidence is precisely that indicated in the condition of the bond, and whether the one or the other is adopted, the result is the same. In support of the motion, it is also contended, that if the bond is set up, the plaintiffs’ remedy is at law for the penalty, and Chancery not having jurisdiction, the complainants’ bill ought to be dismissed. .But this position cannot be maintained. When the penalty is iñtended merely to secure the enjoyment of a collateral object, the enjoyment of the object is considered as the principal intent of the deed, and the penalty is. considered as' only accessorial,' and equity will enforce the performance of the condition a.t the instance of the obligee, or restrain proceedings at law to recover the penalty; 1 Fonb. 151.

In the order of reference made by the Chancellor, the circumstance, that the testator was possessed of personal estate, other than his negroes, and which was covered by the bequest to Wm. Burton, Jr., seems to have been entirely overlooked, .which renders a modification of the decree indispensable. It is, therefore, ordered and decreed, that the defendants do account'before the Commissioner for the one-half of the whole personal estate, (including slaves,) so as aforesaid bequeathed by Wm. Burton, Sr., to his son, Wm. Burton, Jr., and which was disposed of by the said Wm. Burton, Jr., in his life time, or the defendants, since his death, and for the hire of slaves, interest on moneys, or other income arising from the one-half of the said estate so *164bequeathed-to the said Wm. Burton, Jr., and that he credit the defendants with any payments made to Mrs. Towles, or supplies furnished her family in the execution of the *trust*reposed in the said Wm.'Burton, Jr., by his said father, as hereinbefore stated. That if, upon the ádjustment of these accounts, it shall appear that the defendants of their testator are in advance to Mrs. Towles ’ beyond the amount of their receipts, the defendants shall be reimbursed out of the personal estate remaining in their hands; and upon, a final account, according to these principles, it is further ordered, that the said • personal estate now remaining, in the hands; power or possession of the defendants, be partitioned in-equal moieties between the complainants and defendants; and that this order be taken as a substitute for that made by the Chancellor, .the object being an equal partition of the legacy to Wm. Burton, Jr., between the complainants and defendants.

O’Neall and Martin, JJ., concurred.

*Decree modified.*