/june. 18X1.

case mi.

#### T. Bunch, Administrator of Sarah Bunch, *vs.*Chas. Hurst, Administrator of Robert Hurst.

A.man devis. liei‘ verai nepu-anQn”^ the nieces dief after the ^^01’ ^ wife of the xh^wasTa vested inter-. v»4d lo ha-the sta-A^eed/exel cut^d *hY*a wcáfc man not alleged tó the\ands of^an agent, duced,butthe C0I’t?n]3 F°* at with *;*a deed’ executed by a weak man, hi vei.y necessit °^cec“cuTMy which ^he for a-most made-quace jpp ice<j will be set st-

[Tried before Chancellor Desaussure, June, 1811 — Decide,

27th August, 1811.]

THE bill sets forth that Robert Hurst being in his lifetime seized and possessed of a tract of land, some negroes, horses, cattle and other stock, furniture, &c. made and duly executed his last will and testament on the *36th*January, *1793;*and after bequeathing certain specific legacies, *“*he did give, devise, and bequeath all the rest and residue of his estate, both real and personal, to his wife, Jane Hurst, during her life j and after her death, [all the estate, both real and personal, he did give, devise, and bequeath] unto and amongst his nephews, Joseph and Charles Hurst, and his nieces, Sarah Dubon (afterwards Sarah Bunch), and Ann Tiers, and to his niece Margaret Pringle, (who was absent this state *;)*to them, their heirs, executors, tors, and assigns, *forever;*all of them to share and share alike and he appointed his said wife to be executrix.

Shortly after Robert Hurst died, and his widow and executrix proved the will and qualified thereon, and made' an inventory of the personal estate.

The widow afterwards intermarried with Archibald M’Kewn, and she hath since died $ and Charles Hurst, one of the residuary legatees, took out letters of adimms-tration with the will annexed on the 4th November, 1808, and he made an inventory of the personal estate, ■4„, , , __ _ . - oi.n-1

, , __ . It is alleged that Margaret Pringle, one ot the legatees, died in the lifetime of the testator, whereby the legacy to her became lapsed. Sarah Dubon, another of the legatees, married Maurice Tiers, and on bis death she married Timothy Bunch, the complainant. She . hath since departed this life, to wit, on the day of and her husband. On the 2d Dec. 1808, out letters of administration on her estate axul effects.

*274Charles Hurst, the administrator with the wiil annex-possessed himself of the personal estate of the testa. tor, and held it till the 27th J uly, *1810;*when, to make a division among the legatees, the negroes were sold for ten per cent, cash, remainder payable in one year. Complainant has applied to the defendant for an account and settlement of his late wife’s share of the estate, but Mr. Hurst has declined any settlement.

To the complainant’s bill, praying for an account and settlement, the defendant pleaded, in bar,

1st. That Sarah Bunch, one of the legatees, and late wife of the complainant,. died in the lifetime of the testator’s wife, which was previous to the period when the bequest to Sarah was to take effect. Consequently that the bequest never vested in Sarah, under whom complainant claims.

2d. That even if the bequest had vested in Sarah, the legatee, (under whom complainant claims) her surviving husband, Timothy Bunch, has divested himself of all claim to any part of the estate of the testator, by transferring to John Filbin all his *right,*title, interest, and claim, by marriage or otherwise, in said estate of It, Hurst. And the defendant averred that he was ready to prove the contents of the deed from Bunch to Filbin, the original having been lost or -mislaid.

The defendant, for answer to the complainant’s bill, stated that he did not know of what estate the testator was seized at his death, but admits the will as stated, and that upon his death his widow made the inventory stated, and married Archibald M’Kewn, in whose hands he believes some of the personal property still remains. Admits that on the death of Mrs. M’Kewn he administered on the estate and made the inventory mentioned. The defendant admits that Margaret Pringle is dead, hut not prior to the death of testator; believes, she survived him.. He admits that Sarah, one of the legatees, married Mr.Tiers, and on his death Timothy Bunch, the complainant, and then *died;*and that complainant has administered on her estate and effects. Defendant *275admits that he took possession of the estate of the testator, but denies he used it for his own purposes 5 and refers to his exhibit D. to shew the contrary. Defendant states that he was not able to get possession of the neu-groes of the estate until November last, 1809, and two in the month of March, 1810, and the remainder in July. Defendant hired them as well as lie could, and on. the 37th July, 1810, sold the negroes on a credit of one year, deducting ten per cent, cash, and took bond and mortgage from the purchasers. Defendant denies that complainant is entitled to any right in said estate, he having transferred the same to another person. Defendant says he could not now settle with complainant if he had any right, as the property was sold on a credit by order of the ordinary, and by consent of the complainant.

When this cause came- on.it was agreed by the parties to go into the whole case under the pleasin bar and the answer at the same timo. Although this was not per-, fectly regular I assented to it, to. save delay to the par-, ties. On the trial the following facts came out in. evi-donee:

Zachariah Brown deposed,, That on or about the 6th or 7th July, four years before, (1806) he was present at John Filbin’s, when Timothy Bunch and Aly Lochalear came there- — -several other persons were present. There was some conversation about the sale of the claim or interest which Bunch had in Robert Hurst’s estate, and Bunch offered it for ten dollars. . Bunch said that the •reason why he would sell it so low was, that it could not be had until Mrs, M’Kewn’s death, and she looked- so hearty she would outlive him. That Filbin had two small creatures, and said he would let Bunch have one of them, at 35 dollai’s, if he would give him up his right to this property and his note for 15 dollars. The bargain was struck, and Bunch gave his note for 15 dollars, and a mortgage of the mare. He also signed a paper, which the witness and three others also signed as wit--' nesses. Bunch took the mare and carried her off. Ho *276was quite sober* He had oncebefore offered these rights to Mackay for ten dollars. Bunch, when at the ten mile house, said he had got a good bargain, and rather lagged of it.

When cross-examined, this witness said, the creature sold to Bunch was a small mare, IS | hands high, worth about 25 dollars.

John Webber drew the paper which Bunch signed, and read it to Bunch. Witness does not remember the contents, hut it was to assign .Bunch’s rights. He cannot remember whether any mention was made of the property which was intended to be conveyed, or whether any valuation was made. There was no *list or*schedule of the property intended to be conveyed. There was nothing put down in the deed but the right and title of Bunch. Supposes that Bunch knew his *rights;*but there was no specification of the property, or list, or schedule. Bunch is a sober man *generally;*he cannot tell if Bunch can read or write. Thinks Bunch signed a X to the deed, but is not sure. On re-examination the witness said he thinks Bunch must have understood the deed.

John Filbin was offered as a witness. He was objected to as the person to whom it was alleged that Bunch had sold the property in question, and to have since conveyed his right to Charles Hurst, the defendant. The defendant offering to release him, the objection was withdrawn, and he was sworn. He testified that Bunch came to him and offered to sell him all his rights in Robert Hurst’s estate for ten dollars. The witness offered* him a mare for 25 dollars, deducting ten dollars for the property which Bunch claimed of Hurst’s estate. Bunch accepted the offer and agreed to have writings, which were accordingly drawn. Bunch gave as a reason for being willing to sell, that he thought Mrs. MTCewn would probably survive him.

The witness said he knew the property in question. The witness deposed that the paper executed by Bunch was placed in the hands a Mr. Mackay, and he is *277gone, to Georgia. Witness attempted to get it back but never succeeded.

The witness has sold' the rights he obtained from Bunch for a creature worth fifty dollars. He sold his rights about a year before he gave his testimony. This was after the death of Mrs. M’Kewn. He said, he sold it because he thought the rights worthless. When Bunch came to his house it Was in the morning, and he was perfectly sober *t,*Bunch never passed for a man out of his senses. - On his cross-examination Filbin said that the property which Bunch was entitled to was some land, negroes, furniture, plate, &c. There were six negroes, and Bunch was entitled to a fourth part of them and the land. He said - he sold the property to Hurst because he thought he had the best right.

Matthew Martin deposed that he met Bunch on the road. Supposes it was some time after the trade with Filbin. He seemed a little groggy. Had not much conversation with him. Having seen him on foot before, he asked him if he had been trading for a horse. Bunch answered that he had got the creature from Filbin for about 25 or 30 dollars. Has no recollection of what he said about the property. Thinks he saw Bunch about a month after the above conversation. He told him again he had got the creature from Filbin, but told him no particulars.

On the part of the complainant Mr. PiuNgue produced the inventory of Robert Hurst’s estate in May, 1793. There were six negroes, valued at *9,151.*The negroes, furniture, and all the personal estate, amounted to 4981. The appraisement of the personal estate after the death of Mrs. M’Kewn, taken in June, 1809, was $1,802.

Mr. Archibald M’Kewn,. after being examined on his voir dire, was sworn in chief. He deposed that he married the widow of Robert Hurst, and removed to town in 1795 on account of his wife’s ill health. She remained several years, perhaps six and seven, under Doctor Ramsay’s care. She was long ill, and indeed never well. She died ini October, 1807.

*278Witness has known Bunch 15 or 16 years. He is weak and of shallow intellect, hardly capable of any business. He thinks him three parts a fool. He cannot read or write. He is very poor, and lives by his labor.

The land is a tract of about 700 acres; some of it good. He planted it two years in rice and cotton. It is worth about a dollar an acre. On being cross-examined he said that he could not state the particular situation of his wife’s health in 1805, or any particular year; hut she was weakly and an invalid, and had a cough from 1795 till her death,.

Mrs. M’Kewn, being executrix of Robert Hurst, sold some of the property, under the permission of the ordinary, for payment of the debts. No negroes were then sold. Witness bought in for her sundry articles of stock, &c. to the amount of 441. They were put down to him, but he really bought for her, and had the entry changed and the articles put down to her; and he was never called on for payment. Three of the negroes of Robert Hurst’s estate were seized and sold for rent due by him and his wife in witness’s house, but he bought them in and returned them to the estate. . He employed Bunch as an overseer, for eight or nine months, about five or six years ago. He gave him no more than his victuals and clothes and never depended on his judgment in his planting. He worked ten or eleven negroes. He supposes if pains had been taken to explain carefully a deed to Bunch, conveying property, he might have understood it. He believes, there are no debts due by Hurst’s estate. Sarah, the wife of Bunch, died in the lifetime of Mrs. M’Kewn.

The evidence of Mr. Grey was withdrawn, as the affi-' davit he was to support was lost or mislaid.

Major Lining, witness.

He knew T. Bunch. He is of very feeble *mind;*so much so as to be obliged to employ a friend to come with him and give instructions about his business. Does not believe he could understand any deed.

*279Mr. Vm. L. Smith, for defendant.

He originally thought this was a vested estate, but upon full consider-ation thought differently. 1 Brown, 181, Barnes and Allen, which is in favor of the complainant, is a trust estate and has been overruled. There are a great variety of cases. The words of the will creates no estate in the remainder man till the death of the wife. Carter and Bletso. Prec. in Ch. 267. No vesting words in the will.

This is not an executory devise. See 3 Yesey, jun. 208, Perry vs. Woods. Says Allen and Barnes is not ■correctly reported. 5 Yesey, 210, Harrison vs. For-man.

Distinction between cases of debitum in prsesenti sol-:Vendum in futuro, or cases where the legacy is given on future event. 3 Atk. 219, 221, Billingsley and ah vs. Wills. Prec. in Ch. 290, Tourney and Tourney. Ambler. 167 *;*1 Brown. 123, Dawson vs. Killet; 1 Eq. Cas. abr. 295. Legacy given by words de futuro, legatee must live to the time fixed. 1 Brown, 299, Monk-house and Holmes; 3 Yesey, jun. 363, Batsford vs. Kebble; 1 Atk. 502, Hall and Terry; 3 Atk. 504, Elton and Elton. The intent might control the rule. There are cases where the postponement of time of payment is in ease of the estate, the limitation may be a vested one. 5 Vesey, 509 j 6 Vesey, 43, 49, 50, God-frey and Davis. Maclcay and Alston, decided here, is also applicable. The word « when” denotes the devise is to take *effect; “*at” and *“*after” are stronger than « when.” Lord H. refined in favor of children. 6 Ve-sey, 243-6, Hanson and Graham.

Argued on the second point.. It appears that Bunch thought the property in a bad way, wasted and contingent ; therefore he Sold his contingent rights at a mere trifle. This was the inducement to sell. He considered it a mere lottery ticket. He had offered this to other persons. He sought the buyer.

Timothy Bunch wanted a creature to. ride; he was humiliated with walking, whilst his neighbours rode. *280The gratification to the party in a bargain is a great . . objeci*

There is no concealment $ no fraud; no misrepresentation. Bunch must have known of what the estate *consisted;*and therefore gave up what he knew. But he knew also that the property was in a way of being wasted.

In the case of Gregor and others, vs. Duncan and others, it has been decided that gross inadequacy of price shall not set aside a contract. There was great inadequacy. Ignorance of rights *;*concealment or misrepresentation *;*fraud and inadequacy of price, under particular circumstances may set aside contract.

If Fillbin had given g 1000, and the Court had decreed that Mrs. Bunch had no vested interest; could Fillbin have compelled him to reimburse the $ 1000 2 certainly not. It was then a speculation. With respect to Bunch’s faculties, Major Lining proves that he wanted a person to conduct his law *business; this is*common, yet such men are able to contract. Wm. M’-Kewn employed Mr. Bunch as his overseer.

For defendant, Mr. Gkimke. The evidence with respect to Bunch’s imbecility, is *contradictory;*why has not more testimony been given by complainant, as to Bunch’s imbecility. It surely was susceptible of more testimony.

It was not a sudden desire in Bunch to sell Ms rights. He was desirous to sell them before to other persons.

The reasons given by Mr. Bunch, for selling so low, are such as a man of some knowledge and reason would give. They grew out of the circumstances of the case$ and he appeared satisfied with his bargain.

As to the law on the inadequacy of the price, see £ Fonbl. distinction between agreements executed, and executory. Too late when executed 5 2 Atk. 251 Willis, vs. Jernigan, 1 Bro. ch. £9.

Mr. PiuNgie, for compl’t.

The bequest to the four nephe ws and neices is of an estate in common: not a joint tenancy. Contends that tis a vested legacy. Is aware *281of tlic distinction of the time of payment being attached to the legacy itself; or merely fixed to shew when to be paid. This is not a legacy which would lapse.

The repetition of the word devise can make no difference. The gift was positive, the enjoyment only postponed. The words amount to an immediate gift; tho’ not to take effect till a future day. No intent to postpone the vesting.

Substantially the tcstatijp gave estate to A, for life, remainder to B. 1 Vesey, 217. Jackson, vs. Jackson, legacy of 20Oi. at the death of the mother; still it is a vested legacy. 1 Brown, C. C. 181, Barnes vs. Allen.

The interest of the first person taking in remainder vested at same time with the first legatee. 1 Brown, 298. Monkhouse vs. Holm, is a case where the bequest is to the wife for life ; and after her decease to I. M.

This is not a trust case, but if it were trust estates and legal estates are governed by the same rules.

As to the objection, that in Monkhouse’s case, it was only the use, which was given to the wife for life. This distinction has been exploded. When the legacy is not to be raised till a particular time, that varies the question, and the decision on it. It is a known rule that money to be raised out of land for a legatee who dies before the time fixed, the legacy lapses. Ambler, 276, Dawson, vs. Killet, 1 Vesey, jun. 207, Medlicott, vs. Bowes. 3 Bro. 390, Scarsfield, vs. Hawes. 3 Vesey, jun. 204, Perry, vs. Wood. 4 Bro. 404, Roebuck, vs. Deane, 2 Vesey, jun. 265. 2 Brown, 75, B.enyon, vs. Madison. 3 P. Was. 363, Pinbury and Ellkin, 4 Bro. 395, (same case as Benyon.) *5*Vesey, jun. Harrison, vs. Foreman, 7 Vesey, jun. 279. Brown, vs. Biggs.

The distinction between legacies given at 21, and payable at 21, is a rule of the Ecc. court not favored here. 3 Vesey jun. 135, Pierce vs. Loman. 2 Brown 431, Scott. The cases cited on the other side, relate chiefly to legacies to be raised out of lands, as portions. *2822 Vesey, 263. If payable out of a mixed fund, it sinks as toe land *;*and for good reason, in that country, where the heir is favoured *•,*and if the person for whom a portion is to be raised out of land dies it sinks for the benefit of the heirs. The case before the court is not of a portion to be raised, but it is of the whole estate. Another class of cases, is that of marriage. 1 Bridgman’s dig. 576, 3 Atk. 102, Heath vs. Perry, 2 Bridgman, 102. Another class of cases is where legacies are given to persons by a partr. description, lihey must answer it, or they cannot take. The case of 6 Yesey, j uu. 43, 8, Godfry, vs. Davis, comes under this class. As to the 2d. jdea in bar, the transfer of Bunch’s right to Filbin, the plea is not supported by proof; no deed is produced, no evidence what the deed was $ what it contained, nor whether it contained matter of real transfer. The court must determine whether the deed spoken of is really a good and valid deed. The court judges ; not a jury yet the court is asked to decide on a deed, alleged to be lost, and no copy shewn ,* no proof but loose recollections of unlettered men. Thus supplying by matter in pais the defect of not producing the deed. But allow the party to go into evidence in pais *;*he has not given proof enough ; for he ought to have proved the existence, then the loss, and then the contents of the deed. In proving the contents, there must be some particularity. None has been shewn in this case j no proof even that the witnesses heard the deed read. Can the court undertake to say from the evidence, that this deed was executory or executed ? It is said nothing was put down in the deed, but the right, title, and claim of Bunch. Who can undertake to judge of the extent of this deed f A deed pleaded in bar must he set forth.. The court would not have decreed specific execution of a contract, on such proof as this. Why was not Webber produced, {who was said to have drawn the deed.) Why not produce any one of the subscribing witnesses ? He might have explained it. Mackay, who is said to have gone to Georgia^, apd earned Off the deed, has not beca» *283.examined, nor even a commission sent. It would be dangerous in a liig’li degree, *$*it would put to hazard all property. Even Filbin’s evidence is not positive, as to the loss of the deed. It must he hearsay. He says he tided to get the deed back. This shews he did not know it was lost.

But admit that the deed was properly proved. Still this was a most unconscionable bargain 5 an advantage taken of a weak man, incapable judging of his rights. He was at least a weak if not insane person. M’Kewn proves him weak, and explains his employing him as overseer. It is said he acted in a ■complicated case.

If Bunch did make calculations, he was grossly wrong ; Aiwe; in his estimates ; wrong in his conclusions ; weak, foolish, though not an ideot. Every man would ex laim at the gross inadequacy. To diminish the right and its value, it is said Bunch’s claim was a mere contingency, a lottery. If he really considered it so, it shews his ignorance of his rights. Yalue g2500, his fourth equal to 625 j abate a third for the life estate in existence at the time of the sale alleged to have been made to Filbin by Bunch ; still it is an important interest to a very poor man, and gross inadequacy. Admits inadequacy alone will not set aside a contract $ hut the Court will catch at any slight circumstance to avoid it.' Bridgman’s digest, 454.

The party must understand the business, and the value, and fairly enter into the deed. If this be so, and no fraud, (and the case is such that the Court would decree a specific execution-of the agreement) then inadequacy alone would not anmil the agreement. There is a.-disiinction between cases executed and executory-more difficult to set aside agreement, than to refuse to aid in enforcing it. 2 Brown, 87 j Heathcote and Pag-*nion;*2 Brown, 175, *Garside;*1 Brown, 558 *;*Chesterfield and *Janssen;*7 Bro. P. C. 70, Filmer v.-

Mr. Grimicb, for defendant.

1st. question. As to the proofs of the existence,- loss *284and contents of the deed. Every thing may be suppll-cd by parol evidence. All that is necessary has been i. e. the circumstances which led to the contract ; the execution of the deed ; the contents : the loss. No 7 7 property could have been specified. It was a doubtful property. It was a divisible property. Contingent. A general reference was made to the source of the party’s rights, under Hurst’s will. It refers to that» and undertakes to transfer all his rights. As to the loss the necessity of proving that strictly is diminished by the clear and full proof of the contents of it. Therefore no ground for suspicion that the deed is kept back designedly, lest the exhibition of it should discover something unfavorable to the defendant.

As to nonproduction of a copy, it would have been suspicious, for it would have been asked, why produce a copy ? Ambl. 247. Saltern, vs. Maluish, sufficient to give a reasonable account of the deed, and contents of it, and loss. 3 Term rep. 160, Read and Brookman Co. of law even favors the suppletory testimony in loss of deeds. Mr. MeKewn says he believes that Bunch could have understood a deed if *properly*explained to him. As to the inadequacy argued yesterday, it must be gross and such as all men would exclaim at. Now as to the construction of the will, contends that the words of this will do not create an executory devise, but a remainder, as to real estate. Fonbl. 96, where there is a vested particular estate, the limitation over will be a remainder, not an executory devise. As to the personal property it will folllow the real estate, and receive same construction. 1 Fonblanque, 213, note f.

This is a remainder, contends it is a contingent remainder, not a vested remainder.

The language of the will shews a desire that the remainder should not vest, till the event occurs, on which the remainder should take effect. Distinct clauses in bequeathing to his wife, and to his nephews and nieces. Meant his nephews and nieces should take if they lived, *285too benefit intended to their executors or children. 1 Atk. 502, Hall & Terry. Insists that the legacy to the nieces is distinct from that to wife, and must be considered as commencing on the day of the death of the wife. It is as if the testator had died on that day. The effect of the will is as to them, to begin on the day of the death of the tenant for life. 3 Atk. 504, Elton vs. Elton, is a case of marriage to take effect, as a condition precedent. Insists that the case before the court, depends also on a condition precedent. Talbot. 193, Bradley, vs. Powell. Ambler. *575,*Manning, vs. Herbert.

j,E0IKBfo

This is like a charge on lands, where portions arc to be raised. Prec. Ch. *267,*Carter, vs. Blets. Digest, 259. Ibid, 290, Fourney vs. Fourney. Where there is a description of persons, the legatees claiming to take, must answer the description. This will manifestly intended a description of persons to take under this will, and the husband of one of them (who is dead) does not answer the description. 3 Vesey, jun, 363, Badsford vs. Cabell, Ibid, *367.*3 Atk. 319, Billingsby vs. Willamb. 521, Bennet and Seymore, 1 Vern. 435, Cole vs. Berish, 31. 1 Bro. 124, Dawson vs. Killet, 6 Vesey, jun. 49, 50, Godfry vs. Davis, 2 Swinburne, revives the cases. 8 Vesey, jun. 5, 46, El win and El win.

The property in dispute in this case is of very small value in itself, but considerable to the parties *;*and the questions involved are important. The cause has been ably argued and every thing brought out which learning and ingenuity could devise.

Four questions are made,

1st. Whether under the will of Robert Hurst any and what rights vested in Sarah Bunch, the wife of complainant, she dying before the testator’s wife ?

2d. What interest her husband has in those rights, he having survived her and administered on her estate ?

3d. Whether there has been sufficient proof of the *286execution, contents and loss of the deed from Bunch to. ^^in, to establish that deed ?

4ill. Whether under the circumstances of the case, the Court ought to sanction a deed obtained in the manner and for the consideration stated ?

The argument unon the first point was very full, and a great many cases were cited. I have examined all of them which are within my reach. But I presume it is not necessary to go into a full discussion of the distinctions in the numerous cases. Some of them were decided upon the apparent intent of the testator, controlling the particular words of the clause of the will on which the question *arose;*others upon other principles of a peculiar nature, not applicable to this case. But upon a careful review of the whole doctrine, it docs appear to me to be settled, that if a legacy be given to one person for life, (called A. for example) and after the death of A. to B. the legacy to B. is vested on the death of the testator, and it does not lapse by the death of B. during the life of A. See 2 Fonbl. 366, 7, and the note K. and the cases there cited, particularly the following, to wit, Tunstall vs. Brachen, Ambl. 167; Dawson vs. Killet, 1 Bro. C. C. 119; Jeale vs. Tichenor, Ambl. 703*;*Barnes vs. Allen, Bro. C. C. 181; Monkhouse vs. Holme, Bro. C. C. 298; Jackson vs. Jackson, 1 Vesey, 21*7;*see also other cases not cited by Fonblanque, Perry vs. Woods, 3 Ves. jr. 404. Some of those cited are directly in point; for the legacies are to A. for life, and after his decease then to B. and though B. died before A. they were held to bo vested and transmissible legacies. This’is precisely the case before the Court. The defendant’s counsel insisted that the estate being given to the testator’s wife, for her life, and after her death to the nephews and nieces of the testator by name ' and Sarah Bunch, one of the devisees and legatees, dying in the lifetime.of the wife, her share of the legacy lapsed. But this objection has been repeatedly considered and overruled, as appears by the cases cited. And indeed it never did prevail in any case, standing singly *287on that ground. And there , do not in my opinion exist any peculiar circumstances in the case before the Court to differ it from the plain one so often decided. The re.petition of the words « I give, devise and bequeath,” in this will do not alter the case. They ate always implied, and the expression of that which is implied cannot vary the law. The defendant’s counsel attempted to shake the authority of the case of Barnes vs. Allen, by stating that it was declared by the master of the rolls in the case of Perry vs. Woods, (3 Ves. jun’r, 204,) that Barnes vs. Allen was erroneously decided, and had been overruled *; but*upon examining* the case of Perry vs. Woods, that does not appear to be the case. In the case ef Barnes & Allen there were two points : 1st. Whether the legacies to the two legatees dependant upon a life estate, lapsed by the death of one of the legatees during' the life estate. 2d. Whether these legatees Bad a tenancy in common or as joint tenants with survivorship, one of them having actually died during the life estate. Upon the first point there was no doubt. It was agreed to be a vested and transmissible legacy and did not lapse* On the second point the Judge was of ¡opinion, that the legacy was in joint tenancy, and that the survivor took the whole. The case of Perry and Woods was held by the master of the rolls a tenancy in common, and that the share of one of the legatees who died during the life of the tenant for life, was transmissible to his representatives. But the case of Barnes and Allen had been quoted in the argument to prove that under such circumstances the estate was a joint tenancy. It was then that the master of the roils examined the case, and said that Barnes and Allen was not in the least like the one before him, (Perry and Woods) on that point; and quoted.the words in the registers book to shew the difference, which is stated in the note.

On a full examination of both these cases, I am of opinion that they are authorities in point to establish the first question in the case, before the court, to wit.: that in at legacy to A« and aftqr bis dead), to B. if B. die# before.: *288nevei’theless a good vested and transmissible legacy. In the case before the court, there can be no doubt, that the legacy to Sarah the niece of the testator was a tenancy in common. The words share and share alike, used in the will, create a tenancy in common, jj anthority were necessary to establish this, the case of Perry and Wood’s is also decisive on this point. For there those words were decreed to create a tenancy in common, tho’ coupled with the word survivor. The case of the heirs of W. H. Drayton, vs. the heirs of John Drayton, deceased, in our own court, ’93, is one of those where the death of one of the legatees, after the death testator, and before the death of the intermediate holder for life (or on a contingency) does not occasion a lapse, tho’ words of survivorship were added. The general interest was chiefly regarded. The case of Mackay and Alstor decided in this court was relied upon by defendant, but nas no application to the question before the court. The devise there is to Harriet Makay and to her heirs, &c. when she attains the age of 21 years, or day of marriage, &c. *But if she*should die before the above mentioned period, then a devise over. The court in deciding that case said the words of the will were so strong to shew that the time the devise was to vest, was annexed to the substance of the gift, as to leave no room to doubt of the testators intention. The words when and if are not to be got over. And this is the true difference as to legacies of personal property, ■where the time is-annexed to the legacy itself, and not t.o the payment ofit, and the legatee dies before the time, the legacy is lapsed. Otherwise, if the time be annexed only to the payment ofit. The defendant also cited and relied on the case of Hall and Jermin, 1 Atk. 302. This was where a precise time was fixed for raising a legacy, and legatee died before the time. So in Elten and Elten, 3 Atk. 504. The event on which legacy was to depend, never happened at all. So in Bradly and Powell, Talb. 193, it was a marriage settlement case, and the contingency never occurred. The case of *289Manning and Herbert in Ambler, 575, is against tbe defendant, for it was decreed that the legacy was vested, tho’ the legatee died before the life estate was ended. In the case of Batsford and Keppell. 3 Vesey, jun. 363. The legacy depended on a contingency. Bennet and Seymore, Ambl. 521. The words of the will shewed the intent was that legacy should not vest till the death of the life tenant. The case of Cock and Barrish in 1 Vern. 425, is totally different, one df the legatees died in the life of testator *;*and survivorship was established. 1 Bro. 119, which is Dawson and Killet, is against defendant. Billingsby and Wills. 3 Atk. 219, was decided on the express words of the will. The result is, that I am decidedly of opinion, that the legacy to Sarah was a vested legacy, held as tenancy in common, and was transmissible to her representatives, notwithstanding her death before tenant for life, the widow of testator.

The second question for consideration, is, what interest the husband has in the rights of his deceased wife, to the property in question. It is unnecessary now to go at large into this question. The law has been settled by several recent decisions. The husband would have been entitled as the law stood formerly to the whole of this legacy, tho’ not reduced to possession during coverture. Its being vested in interest, though not in possession, was sufficient to entitle him as survivor. But our act of 1791 has been decided to have introduced a new rule, incompatible with the old and to have established that where the marital rights have not completely attached, by the husband’s reducing the personal estate of his wife to possession during the co-verture, the husband is entitled to no more than a third part of the wife’s estate not so reduced to possession, where there are children of the marriage, and a moiety where there are no children. This law applies to the question before *us;*and as there are no children, consequently the husband, the complainant is entitled to a moiety. 3d. The third question for consideration is, whether there has been sufficient proof of the execution, *290contents and loss of the deed, alleged to have betón made by Bunch, conveying his right under the will of Robert Hurst to Filbin. I have reviewed the evidence wjtli great care and minutenes's. From it there cannot be any doubt that some -sort of deed was executed by B mtcb, to whom it was read; and that it was intended to he a conveyance of the rights of Bunch in Robert Hurst’s estate. The existcnce of a deed then 1 must consider unade out. But I do not consider the contents of tlie¡ deed so clearly established. It is remarkable that though this deed was subscribed by four witnesses, only one of them has been examined. And he expressly states that -he has no recollection of the contents of the deed. He knows that it contained no description of the property intended to be conveyed, no enumeration, no schedule $ he. says it was intended to convey all Bunch’s rights in Robert Hurst estate. But did the deed convey them* .and in what way ? Absolutely, modiftedly, or for a limited time? He cannot answer. He says be docs-not recollect the contents of the deed, and so imperfect is his recollection *that*I16 docs not know, if Bunch signed his name, or put his mark to the deed. Upon the whole I am not entirely satisfied as to the contents. But if what the witness lias said as tb the contents and execution of the deed, were more satisfactory in-the last.particular, I Irave a greater objection unsatisfied. The rule-of evidence is, that where-a*deedtis>proved to have been lost, or casually destroyed, or in the hands of the 'adverse party, parol evidence may be allowed to prove the existence and the contents. None of .the cases go beyond this; neither those produced by the defendants counsel, Ambler, 249. 3 Term Report, 16a. Nor those'which I have since-examined upon this doctrine, go beyond the rule-so laid down. Sec 1st Ves. sen. 234, Cooks vs. Hellier. Ibid, 387, 9. Whitfield, vs. Fausset, 96, 503, 4, 5. Cole, vs. Gibson. 2 Vesey, sen. 38, 111. Glym, vs. Bank of England. How does this rule apply to the mse before-the court? It is.not alleged that the deed *291jjft question is- either lost or mislaid or destroyed. On the, contrary it' is expressly stated- that the defendant placed it in the hands of a Mr. Malcy, and it is added that he is gone to Georgia, and that he carried the deed with him, and that Some unsuccessful’ attempts been naadc to procure-the-deed from. him. But what was the nature of these attempts* ha3 not been explained. Nor has any commission been- sent to examine Makay about the deed, or what has-become of it. Yet Mákay was the defendants own- agent and depository, and his suppression of the deed, is attributable to his •principal.* To suffer parol evidence of the existence and contents of a deed to be given under such oircum--Stancesi where there is no pretence of loss, would be extending the rule far beyond any thing that has been heretofore done. And in my opinion it Would be mischievous in a high degree to do so. It' might open* a door to frauds and impositions of gredt- extent. I will not therefore enlarge the rulte* which .1?think is already sufficiently extensive- for all useful pubp<j|cs, and least of all in< a- case where there is-much- grouifo for suspicion, as-well in tliis-as in other-respects.

Frormthis viewpf the case then if will'- appear, that I do nbt think a case has been made out, on which I could decree for the defendant, even if I had been satisfied as to tile* manner and the substance of the contract between Búnch and Filbin. But* the truth iswhen * I examine all the facts disclosed, and: which raise the 4th question in- this-'cause, I am not prepared to give my sanction to such a contract. The testimony- has-, been so fully stated before, that I will not'recur tbit' again particularly., Switl confine myself to a few remarks.

Four-witnesses subscribed this deed, conveying this-small property. I will not say that this is- a badge of •fraud, but I* will say that this excessive caution marks a conviction, that the party had a suspicion that tilings were not perfectly right, not perfectly equal and fair.. Therefore he endeavoured to make a great shew oí *292strength by multiplying witnesses. I will not 'deny my credit to the testimony, that the deed. vague and indefinite-as it was, was read to Bunch. But there is no eV^ence that it was carefully explained to him, which seems requisite to his understanding it'; tho9 a witness entitled to credit, Mr. Brown, rather thought he did understand the purport of the deed. Nor can it be doubted from the testimony that Bunch was sober at the time of signing the deed ; nor that he, expressed some satisfaction at his bargain soon afterwards. But I cannot shut my eyes to the facts fully proved; that this man was foolish to imbecility, tho’ «ot to downright idiocy. That he was poor and in distress, and that there was a shocking and gross inadequacy.of price, in the transaction. If he knew the. extent of liis. rights, then his folly in parting, with them for nothing, more strongly marks his imbecility and his incapacity to take care of himself and his affairs. If he was kept,ignorant of his rights„^then , he transferred jjvithout,¡that full knowledge, w]j|ph a man ought to, hawe before he is stripped of Ms?property by such bargains. I am aware of the decisions that mere inadequacy of priqe is not sufficient to set aside a contract fairly made. (by a man of good understanding, not deceived or imposed, upon and conusant of his rights; and I subscribe to. them. For as a man in the plenitude of his free will,, may give away his property without any consideration, when not indebted, so he may dispose of it, for inadequate considerations. But even these cases say- a shocking inadequacy amounts to evidence of fraud. But I consider the case to he totally different, when a man remarkable for his weakness and folly and poverty, is induced to part with all. the property he is entitled to in the world to save him from starvation, by a sweeping deed, which he could not read, and which enumerated. Nothing particularly; for about a 60th or at most a 30th part of its value. I do think, gross inadequacy coupled with such circumstances ought to prevent any court of justice from sanctioning the deed. Certainly no court would *293llave decreed, a specific execution .of such- an agreement *\*and though that is not conclusive on the question in this shape,! it assists to form a right judgment. This court did; refuse its aid to enforce a contract specifically, in a case *by no*means so strong as the present. I mean the ease of Clitheral, vs. Ogilvie. It was well observed by the counsel, that the court will catch at slight circum? stances to .prevent such injustice. I am sensible, there is no direct : proof of fraud or imposition in the case under .consideration; except‘What grows out of the circumstances ;• and that Bunch, is •said to have first of-ferudAo make ibis-sale, and, had done so to others; and was.'S8-tis/ied'for some time -afterwards ; and it is said even,(gave a reason for it; which-however by M’-Kewa’á testimony appears, was not a correct one. But this o.niy shews the extent of -his weakness and incapacity.. He Was too feeble to require any efforts to catch him in the ¡toils; He was so much like a child as to lie fond of th-e toy for which lie sold his inheritance, or his valuable rights.'- It would be as tedious as unnecessary to review all the cases upon this subject.. And At is .not to be-denied, ¡that whilst at times, the courts ' have been induced to set aside Such, contracts and .conveyances from their indignation'«li-ttlie imposition practised, or the injustice produced ; at "¡other times they have for-hhrn to interfere,- Where. -there was no fraud, though gross inadequacy, from their reluctance to unsettle what was-: done willingly by a party conusant of his rights and competent to ¡act for himself and manage his affairs. Of the latter class, are ihencases of Wood, vs. Fenwick, Prec. in. Chan. 206, Williams and Jernegan, 2 Atk. 25. Nichols, vs. Gold, 2 Vesey, 422. Math, vs. Atwood, 5 Vesey, jun. 845. Of the former clasá,’ .are the cásea of Twisleton and Griffith; 1 P. Wm’s. 310. Clarkson and Hanway, 2. P. Wm’s. 203. Barnadiston and Lingood, 2 Atk. 133. How and Weldin, 2 Vesey, 518. Evans, vs. Lewellin, 2 Bro. C. C. 150. The substance of these last mentioned cases, is, that conveyances from weak men for small considerations, *294mu°h below the value, in necessitous circumstances^, more especially if young heirs or seamen, and others selling contingent rights, not in possession; and espe-cialíy if obtained from men not fully conusant of their rights, (ad in 2 Bro. 150,) will be set aside. I. think those cases apply to and ought to govern the case before the court. And the case of Clitherall and Ogilvie', decided in onr own court is as strong as any of them. It was argued that there is a distinction between contracts executory and executed. That when they are executed^ this Coui’t will not interfere, though it will'in those which being executory, the party must come to this count to have it perfected. This distinction will not prevail against strong cases, with circumstances calling for the interposition of this court. But if it were admitted, what is the proof, that the deed, in this case was executed or executoi’y ? The wTitness says he cannot swear to the contents. It was to convey Bunch’s rights. Now these were in remainder. He had nothing then, of which he could make a direct *conveyance;*for though it was a property vested in interest, it was *mot*in. possession. The proper agreement in such a case them was executory, to wit: an agreement that the party would ■convey his property, when it came to his possession ; and We should be at liberty to argue, that the parties pursued the course, which jwas adapted to the nature of the interest to be conveyed : for the testimony does not fix it. But without resorting, to this refinement^-1 am of opinion, that as Bunch was a very weak man, of no *--jvidgn^nt;*utterly incompetent to act for himself in any mathy Of importance, and as he was a very needy -man, and as Jc is not certain that he was fully conusant of the ektfeij; if his righ ts, and of the property to which he was . .eptitle#, which was in expectancy only ; and as he has parte,/with those rights in the gross, without any enu-mfiration which could put him- on his guard 5 and as he could not read, and there is no proof of a full or fair explanation of the deed, though it was read to him; and as the conveyance is for a consideration so grossly in*295adequate, that all good men would exclaim against it at the firát blush, this court is bound to interpose and to prevent the effects of such a deed, though there is no direct evidence of plain fraud in the case.

It was attempted to elude the force of these considerations, by shewing that Filbin had not considered this property as of great value, as he had afterwards sold the same property after Mrs.. M’Rbwin’s death to the defendant for a very small property, towit: a horse worth g> 50, as Filbin himself swore. To this several answers may be given. This act would not establish the fact of the small value of the property in question; for there is distinct evidence to prove the value, which though not great, is prodigiously above the consideration given. And I must say I doubt if we have obtained the whole truth of this transaction. For though the parol evidence said the consideration given by Hurst to Filbin was *$*50 ; the deeds afterwards produced, say $60; and what more was reserved, does not appear. And Filbin, upon being interrogated why he sold the property so low, gave very different reasons on his examination, and cross examination; for on the former, he said he had sold it so low, because of the worthlessness, or low value of the property; on the latter he said because he thought Hurst was best entitled to the property.

. Upon the whole of this case, I dp not think, that either of the defendant’s pleas have been supported. They must therefore be overruled.

.It is therefore ordered, and decreed, that the ant do account with the complainant for the slia; .real and personal, estate of the late Robert which his wife was entitled, under the will of t! Robert; to be administered by him, according Defendant to pay costs of suit,

.From this decree an appeal was made on the following grounds:.

Grounds of appeal.

*2961st, That the defendant is distributee of complain, ant; intestate is entitled to retain bis proportion, and a reference to the master to ascertain the same should have been directed in the decree.

2d. That the decree is further exceptionable, inasmuch as it directs an account generally through a part of the personal property was sold on a credit with complainant's consent and the ordinary’s sanction.

3d. That the proof of the existence of the execution and contents of Bunch’s deed to Filbin was amply sufficient to preclude any objections on those accounts.

4th. That the inequality of consideration under all the circumstances of the case, was not that gross inadequacy which equity requires for the recision of a’ contract. Nor was the evidence of Bunch’s incapacity and weakness by any means such as to convert the above disproportionate agreement into an act of fraud or undue advantage.

5th. That although the solicitors may have consented to be heard on the bill and answer, yet defendant should not be thereby precluded from offering testimony to establish Bunch’s capacity, as he was taken unprepared and by surprise, not having had the most distant intimation that the deed was to have been impeached.

(Signed,) Smith & Bacot, appell’ts sol’rs.

The appeal was heard on the 20th March, 1812, by the Chancellors Thompson, Dbsaussure, Gaillarb and WAT&S.

'• It was argued by Mr. Grimes and Mr. W.X,Smith for the appellants, and by Mr. Joining arid Mr. Prin-gle for the respondent.

The ¡Court after deliberation made the following order:

The.-decree in this ca'se is affirmed for the reasons therein assigned.

Signed by Wadby Thompson-, Henry W. Desaus-.-sure, Theodore! Gaillarb, Thomas Watíbs.

The first ground of appeal is founded in error. The general order of rgierrenee jji the deerea submits s^l the accounts to the master, who *297reports on tbe accounts and the portions due to each of the lielrs. The last ground of appeal was also founded in mistake. The defendant was not precluded from offering testimony. Both parties Went to trial vo-luntóly, and after the complainant had gpne through his evidence, the defendant’s counsel expressed a Wish to postpone the case, on the ground of surprise on the question of Bunch’s weakness of understanding; but they made no motion, and offered no affidavit. The Court thought it would be dangerous to permit one party to hear the whole of the evidence of the other party, and. then postpone the ca-.<* in order to give him time to counteract it.

*

 Schoate and Lefroy, 2.09, 222.