case xxxvir.

#### Elizabeth Rivers *vs.*the Executors of Thomas Rivers.

[Tried before Chancellor Desaussure,

January, 1811.]

bo,it”? mar-rya man, grees m *ting to*chumsonhis estate, on his make"8 adequate sion for her. He makes hereby1wii{ Tim decided that vision, proportioned^to and enlarged

THE complainant, Elizabeth Rivers, widow of the late Thomas Rivers, files this bill to obtain a competent a-provision out of his estate, under the following circum-Mr. Rivers was a widower, with three chil-^ren, an(l agood estate. Mrs. Elizabeth Cromwell was a widow, with two children, and a property of small value, consisting of a small house and lot in the city, and, neavoes. Being about to form a matrimonial con- *° °*nexion, they entered into two agreements in writing. By the first, Mr. Rivers agreed to renounce all the Ughts ho might acquire by the marriage to every part of his intended wife’s property, and to leave the same and wholly to her disposal. By the second agreement, Mrs. Cromwell agreed to renounce all her dower amj tliirds, which she might be entitled to in the real and personal estate of her intended husband, Mr. Rivers, in case she survived him, upon condition that the said Thomas Rivers would bequeath to her, by his will, a competent and sufficient maintenance during her life. After the execution of these agreements the marriage took effect, and the parties lived together in harmony and affection till his death. She was a kind, attentive, and dutiful wife. By his will he devised to his widow a house and lot, in town, during her life, in lieu of djower *191and of all other claims on his estate. The widow is dissatisfied with this provision, not deeming it a *“*sufficient and competent maintenance,” according to the agreement. By the master’s report it appeared that the tes-*f*. „ * *rx*tator’s estate consisted ot

Fifty negroes, valued at §20,300

Of land, valued at 6,928

Of houses, in town, *8,700*

And of sundry articles of personal estate, choses in action, money, &c. which were stated (though not by the master) to be worth about 4,000

Making an aggregate value of about 40,000 dollars. It appeared, further, that the income of the estate was as follows:

Rents from the houses, before the embargo, .about §900

Since the embargo, a smaller sum, not exceeding, it was said, *700*

Produce of the plantation for the years 1806, 1807, and 1808, averaging for each year §1,100

So that the whole income might be stated at about 1800 dollars per annum. It further appeared, that the proper expenditures of the testator’s family for the three last years of his life, averaged about 1200 dollars, exclusive of supplies from his plantation. The rent of the house, devised to the widow for life, is 50i. per annum, or about 245 dollars, but had been as high as 601. per annum before the *embargo.*

These are the principal facts in this case material to the justice of the cause. At the trial, it was contended by the executors, who are defendants, that the Court could not supersede or alter the provision made for the widow by the will of the husband : that the provision made by him must be deemed an adequate one, for the Court could not place itself in the situation of the husband, and judge what he ought to have done, and that t6 do so would be to invade the rights and prerogatives *192of the husband: that the agreement was not sufficiently certain, but much was left to the discretion and affection °f the *husband;*and that his decision, made by his will, t° he conclusive.

Mr. Cheves, for complainant.

The claim is for a sufficient maintenance, in consideration of the wife’s renouncing her dower and other contingent interests. This was a particular stipulation, and was intended to guard against an intestacy and the effects it might produce on the estate of the husband by the claims of a wife. The wife would have been entitled to a third part of the whole estate in case of intestacy. This is the proportion which, by the sense of the laws, the widow is entitled to, however numerous the children, But the family was not numerous. Mr. Rivers left only three children, advancing into life, and able to help themselves. The charge is not likely to be of long duration ; she is elderly and infirm, and requires every comfort. She was the tender companion and nurse of Mr. Rivers, in his old days full of infirmity.

The actual provision by the will is very trifling, not adequate to the income of the estate, though that is too low, for it is badly vested, and the decree might vest the estate so as to make it more productive. The income of the houses is 908 dollars — of the crops, 1101 dollars *;*which together make a total of 2,009 dollars. The one third of this sum is 669 dollars. The plantation supplied many articles which may be said to be an addition to the income. She claims a third of the income, or more properly, a third of the interest of the amount of the value of the estate ,• and the master’s report states its value at 40,000 dollars. The house, devised to the wife for life, is worth *SSL*per annum, less than 240 dollars.

Mr. Ford, for defendants.

The will of the testator cannot be altered *;*the property cannot be altered even by the Court: that would be too great an interference. His will divides the property among the children. Will the Court change lands and negroes, and houses, to mo*193ney or stock? Surely not. Take it as the estate now stands. Can, or will the Court superadd to the provision made by the testator, by his will, for his wife? The Court will not place itself in the situation of husbands, and enter into their feelings, and judge of the competency of the provision made by them for their wives. It would be invading the rights and powers of husbands.

The rule and the provision made by the law abolishing the rights of primogeniture, cannot apply to this case. It was made for the case of intestates. That act makes large provision for the wife *;*almost to a dis-inherison of the cliildren in small estates.

The wife had renounced her dower in the lands of the husband, for his . iving up ail her private estate. The contract then cannot look to the real estate — only the personal estate. The rents fell after the *embargo;*they bring only 908 dollars, and the school room is frequently not rented at all. Deduct that, and she has a house which brings *551.*or about 240 dollars, which is about a third of the above income.

The sons have claims too. The eldest has an increasing *family;*the second is-in a course of expensive education ; the third is an apprentice in town. The whole estate may be worth 40,000 dollars, but it is not all productive. To give the widow a child’s share, under the testator’s agreement, would be a kind and favorable provision *;*for he was as much bound to provide for his children as for his wife.* To give her a fourth would be to place her on a very favorable footing.

The husband gave up all his marital rights by the agreement. The wife has no positive interest in the personal estate like dower in land. What does comfortable maintenance mean ? A decent and comfortable support, proportioned to the income and habit of living in her husband’s life time. The expenditure of the husband, in 1806 was about 1200 dollars, in 1807 about 3600 dollars. This was for all the family ; the husband, wife, three sons, and one of her sons. The proportion of this *194will be from two to three hundred dollars for her. Ttie executors could not alter the will.

Mr. Gheyes, in reply.

The right of the Court is, Jbeyond all doubt, sufficient to interfere, and even to re-*J*model the estate. But if the ..party’s defendants wish to keep it in the same shape, let them do so ; hut let justice be done to the wife. The renunciation is to all her possible interests in the estate, real and personal j and guarded the estate of the husband, in ease of intestacy, from large demands on land and .personal property, and even against acquired property. No,provision is made by the will more than the house, which is old and a mere shelter — not-a cent to go to market. This is not reconcileable to the feelings-and duties of-a husband to a tender wife, nor to the spirit of the agreement. Can she live for much less than she had during the life time of the husband? Surely not: and the contract is fora competent maintenance, conformably to the agreement.

‘31MBEE,

If this case had been the ordinary one of a husband, who being bound by no -agreement to provide for his wife, was left by the laws to make such provision as he deemed sufficient for her, proportioned to his own views of his estate, and to his affections, there could he no doubt that the argument would be conclusive j and the Court certainly would not be at liberty to examine or to decide upon the competency of the provision. His will "would make the law, leaving to his widow no other alternatives than to accept the provision, or to renounce it, and resort to her claim of dower in his real estate. But this is a very different case. The husband has bound himself by an agreement, that for a consideration, which was in reality a valuable one, and which he considered in that light,'« he would bequeath to her by his will a competent and sufficient maintenance during her life.” By this agreement he has renounced that absolute power, of disposing of his estate at his pleasure, or even at his caprice, with which the law had clothed him: and I cannot doubt that he could bind himself to do so.*195No cases were cited on this point. But there are cases which shew that men may bind themselves to make their wills in a particular way. I allude to the cases whore two men have agreed to make mutual wills, whereby they were to derive certain advantages on the happening of certain stipulated events. In these cases the Court of Equity has held the parties to be hound, and has made the estate of the party, who did not comply with the agreement, liable to the other party who had complied on the happening of the events which entitled him' to the benefit. So, too, there- are cases where a father has promised, in consideration of the marriage of a child, to leave such child, a legacy.. This has been, held to be binding on his estate, after his death, when he had neglected'to provide. (See 3 Vesey, 402, 412, 416, Lord Walpole vs. Lord Orford. In this case is cited, 1 Vernon, 48, Goilmore vs. Battison; and the case of Durour vs. Perraro and al. decided by. Lord Camden. See 2 Hargrave’s Juridical Arguments, 304.) But independently of any preceding decisions, I should feel no hesitation to decide this point on principle.

A man may renounce every power, benefit, or right, which the laws give him, and he will be bound by his agreement to do so, provided the agreement be entered into fairly, without surprise, imposition, or fraud’, and that it he reasonable and moral. In the case under consideration Mr. Rivers did enter into a deliberate agreement, fairly, and upon a valuable consideration, to leave his wife a competent maintenance during her life; There is nothing immoral, or unjust, or unreasonable, in this. She is barred- by her agreement from all other claims on his estate. And shall she be- bound, and he be free ? Surely this would be unjust in the highest degree. It appears to me that to make a will in a particular way, on proper considerations, is as much a subject of contract as any other j and he who makes a contract on this subject, is as much bound thereby as he would be by any agreement on any other subject. To he sure the Court would be more strict in examining in.-*196^10 na^lire and circumstances of such agreements than any others, and would require very satisfactory proofs of the fairness and justness of the transaction. I con-0fc^u^e’ therefore, that the party had a right to bind himself to make his will in a particular way by an agreement, and the Court has the power to enforce the agreement.

The next question then is, Has Mr. Rivers complied with his agreement, and has he left by his will a sufficient maintenance for his wife during her life ? This is certainly a very delicate question, into which the Court enters reluctantly, and must decide cautiously. But it is called upon to decide, and the party has a *right to its*decision.

The want of certainty, in the extent of the provision to bo made, was urged with force ; and it certainly has weight, but it is not conclusive. It was to he adequate, and that adequacy can be ascertained. Suppose Mr. Rivers had made so very small a provision for his wife, that at the first blush it would have appeared to every person to be inadequate, could there have been any doubt at all that she would have been entitled to redress ? A provision, for instance, of 10Í. per annum, would have been so palpable a violation of the spirit of the agreement, that no court could have tolerated the act. Relief must have followed of course. This shews that the Court is bound to look to the estate, and to the provision made out of it for the benefit of the wife, and pronounce whether it be sufficient. I have done so, and I feel myself bound to say that the provision made is not sufficient in the true spirit of the agreement. Taking the income at 1800 dollars, the provision of about 240 dollars, per annnm, is less than a seventh part of the income. This I must consider inadequate. It is true that the expenditures of Mr.' Rivers, in his family, did not exceed 1200 dollars per *annum;*and 240 dollars per annum is exactly a fifth part of that income. But it should be remembered that he derived many essential and economical supplied from his plantation, and that he *197lived in Ms own bouse, free from rent, and that she partook fully of all these advantages. I feel, therefore, that it is an inadequate provision, looking to her character as a wife, to his fortune and to his agreement. What *° then*would be a sufficient maintenance, according *to the*stipulation in the agreement? I am reluctant to exercise an arbitrary discretion on this question. It would perhaps be safer to follow the rule furnished by the law, than to create one from my own fancy or judgment. That would have given her a third of the estate in case of intestacy. Mr. Rivers’s object, in the agreement, seems to have been to avoid the troubles and the disputes which might have resulted to his family in ease of an intestacy *;*and *to*give a sufficient provision to Ms wife instead of a share in the estate itself, which might have involved litigation and inconvenience to *his*children. That object would perhaps be properly attained, by allowing his widow that proportion of the income of his estate during her life, which she would have been entitled to absolutely if ho had died without a will.

Perhaps, however, in a family case like this, no claims should he pushed, or allowed to go to extremes. Moderation in demanding, and liberality in conceding, would best become all parties; and in a cause requiring a delicate discretion, not an arbitrary one, which I disclaim, it may be considered most proper to put the wife on a footing of one of the children, and to allow her a fourth part of the actual income. If she obtains as much for her annual supp ort as one of the testator’s children, I think this might come up to the idea of a competent and sufficient maintenance, intended by the agreement, having due reference to the testator’s property and family. I confess that iny mind has fluctuated between the third and the fourth part of the *income;*but, upon the whole, I think justice would he done, and the intention of the parties answered, by allowing her a fourth part. It was contended, by the complainant’s counsel, that the estate was worth 40,000 dollars, and that the actual income was too small for such a capital, being *198far below the legal interest j and that the Court might, vest the estate in such a manner as would make it more productive* and then give the widow a third part of that 0fincreasct* income. In my judgment that would be going much too far. I cannot take upon me to alter the estate, to speculate, and to risk the chances of a change which might be disadvantageous. I think I am bound to take the estate as I find it, and to make the allowance out of the income as it exists, and not upon a supposition of what it might be made to be. It might be more correct to refer it to the master, to report annually the precise amount of the nett income, after deducting all general plantation expenses, taxes, &c. But as I am desirous to prevent further vexations, and disquieting enquiries and discussions, in this family cause, and particularly the disagreeable and irritating circumstance of a future annual account, I will have no objection to take, upon me to decide from the information before me, which seems to be tolerably correct. Taking therefore the amount of the income to be g 1300, and deducting 200 for general expenses, I will allow a fourth part of that amount to the widow.

It is therefore ordered and decreed, that the executors du allow and pay to the complainant the sum of 400 dollars per annum, from the testator’s death, during her *life;*deducting therefrom the amount of the sums she has received, and the value of the articles of the estate she has selected and taken ,• which allowance shall be in lieu of the inadequate provision made by the testator’s wll and in performance of the agreement. In this case the executors were not only justified, but compelled to come into this Court to obtain a sanction for any allowance exceeding the provision made by the will. Their Conduct has been perfectly correct. The costs, therefore, must be divided among the parties according to their respective proportions. The complainant must pay one fourth of them out of her estate, and the defendants the remaining three fourths out of the proportion .ef *199'the income of the estate to which the children are enti-tied.

As the demand upon the estate may come somewhat unexpectedly upon the heirs, it is proper that a reasonable time should be allowed for the payment of the arrears. Let one half the arrears, therefore, be paid on or before the 1st of Api*il, and the balance on or before the 1st of January, 1812.

[See note to the case of Ralph Izard vs. Middleton, executor of John Izard.]