*Present*— Chancellors Mathews, Keteeege and *itxnri.*

*JUNE,*1794.

#### John F. Grimke vs. the executors of J. P. Grimke.

,ojs* xciv.

,A father pfo-snised by letter to his son to convey a particular house to him, but after-wards substituted and conveyed another of less value, which the son accepted and occupied. The court-will not, after the- fa. •tlier’s death,enforce the original promise. The fa- ■ thcr’s estate decreed to ?>ay the son a eg-acy derived aliunde," and which had got into the father’s hands. Interest allowed on it. A husband assenting to his wife’s making a will of personal estate, manifested by its being in his handwriting, and disposing of her separate estates, is a sufficient authority to support such Will, though not republished after his death; but such will *367docs not pas* tll6 1V11CS of ““tj, lue13" tale, which onlhis'Scathí Such proP(]istributa-S Me.. The le-^ifefas a s.c-Paiaif?om co-husband, and s1^ by her will, Merest. ilX husband had 0??hem' and is not ount*bla®_ r,eare- Fa» ther premia-es by letter to ! his marriage. c£eed top'iy it with inter-^arriage^ though h* tuft hk*es‘ tat“.wa3^e- and that hi* “j take less.

*366The bill states that Mary Faucheraud, the complainant’s grand mother, was seized and possessed of a considerable estate, and made her last will on the srtli May, 1763, wherein, amongst other things, she bequeathed 600i. of the then currency, to her son-in-law, J. P. Grimke, to be put to interest, and improved by him, and finally to be paid to her three grand children; 400Í. thereof, with tlie increase, to John F. Grimke the complainant, and the other 200Í. to her two grand daughters. She further bequeathed 70001. of the, then currency to the said J. *V,*Grimke in trust, to improve the same, and to pay- the interest .to her daughter Mary Grimke; and ultimately to pay the said 70001. to and among such of the said Mary Grimke’s children, and in such proportions,' manner and way, with such limitations as she should direct, by virtue of any deed or will, attested'by two witnesses, and executed .by her whether covert or single; and for .want of such appointment, to bo equally divided among all the children of her body, and the, issue of any who might be deceased. And the said Mary „ F. Grimke died, leaving the said' will in full force, and her son-in-law J. P. Grim-ke obtained possession of the sums aforesaid. That in the year 1783, after complainant hail attained 21 years of age, his father, without solicitation, tendered to complainant an old debt duo to him by Ch. and J. Wright, whose estates were confiscated, in satisfaction of tlie.le-gacy of 4001. and interest; and complainant being accustomed to pay implicit obedience to his father, and being very dependent on him, and supposing the debt good, accepted the same, and gave a receipt for the legacy. But learning afterwards that the estates of Ch. and J. Wright were insolvent, lie returned all the papers to his father, and stated his reason for doing so. That .complainant’s grand father Gideon Faucheraud, in and by his last will dated the 27th December, 1751, bequeathed 5000Í. cm**367re.ncy to be put out to interest by his executors, and the interest paid to his daughter Mary Grimke; and at her death to be paid to such persons as slie should direct by her last will, or other writing, executed in the presence of two witnesses, .whether covert or single; and for want of such appointment to and among the issue of her body, which said will he left in full force at his death. That complainant’s father J. P. Grimke was seized and pos-scssed of a considerable estate, and particularly of a dwelling house in Meeting-street, numbered 101, and being So seized, did, on the 12th July, 1785, make 1ns last will and testament, wherein and whereby he, amongst other things, bcqueathcd'to his wife three slaves, *“*which said slaves, with every thing else I gave to her, she may dis-póse of as she pleases.” He also devised to her the house No. 101, in Meeting-street, with hispíate and furniture, during her life; and after her death he devised the said house No. 101, to his daughter Mary Grimke, and her heirs. He also devised to his son, the complainant, the house No. 100, in Meeting-street, for which lie had previously given titles to his son, at his own desire. And after sc-veral oilier devises and regulations, he bequeaths the rest of his estate to his wife and his two daughters; stating that he had already provided fully and sufficiently for his son, the. complainant. The testator also states that it had . ...... , , . ,, , . , been iuS intention to have given his son, ttie complainant, 2000?. on Ills marriage, but. as his fortune had suffered materially by the depreciation of indents and other losses, he hoped he would be satisfied with what be had done for him, and left him in addition a mourning ring. The . hill charges that the testator died on the 9th January, 1791, leaving his will in full force; and the defendants have qualified as executors, and possessed themselves of the estate. That by the,said will, the. complainant's.sister Mary, appears to have acquired a title to the house in Meeting-street, No. 101; but the complainant contends that he is equitably entitled to the same; and that it ought to be vested in him on his conveying to her the house and lot No. 100, in the same street, which.ho is willing to do, because complainani's father had often premised that *368complainant should have the house No. 101, at Ms death and his wife’s; and in a letter of the 26th October, 1782, he writes to complainant — « if you can contrive the deeds f°r 511J house I now live in (which was the No. 101) in such a manner as to come to you, and to be entirely your own property after my and your mother’s death, then have them drawn, and I will execute them when you come to town.” And in another letter, the next day he recognises and confirms Ms promise. That complainant drew the deed and delivered it to his father for perusal and execution; and after some time he did execute a deed, hut it was a conveyance of house and lot No. 100, to complainant, and not of No. 101, according to his promises; and complainant’s father at that time required of him a defeasance, so that complainant might not be entitled to both houses. A copy of what he gave is as follows:- — “ I hereby promise to deliver up to Miss Mary Grimke, the house No. 100, in Meeting-street, for which I have received a deed of gift from Mr. J. I5. Grimke, whenever I shall be put in possession of the No. 101, in which the said Mr. J. P. Grimke now lives, *kc.*the original of which must be among the papers of the late Mr. John P» Grimke.” Complainant states that being about to marry with Miss Mary Smith, daughter of Mr. Thomas-Smith, complainant’s father to induce Ms consent thereto, promised the said Thomas Smith, in a-letter he wrote to Mm, that he would give his son 2000/. sterling. Whereupon, the said Thomas Smith consented to the marriage, which took effect. That complainant has never received, ahy part of the said 2000/. That Ms father soon after his marriage tendered him specialties and indents for the said 2000/. but complainant conceiving it would be an impo* sition on his father-in-law, declined receiving them. That complainant’s mother Mary did, on th'e 8th of February, 1786, in the life time of her husband, make and execute her last will and testament, by which she did, among other things, bequeath to complainant two guineas, and to her two daughters Mary and Ann, all her property, jewels, servants, *kc.*and also the legacies left her by her father and mother, with all tire rest and rest-*369«Sue of her estate, to he equally divided between her said daughters; and she died leaving said will in full force; and Mary Grimke, one of the legatees, and executrixes, has qualified on said will, and possessed herself of the es-tatc; and she and the executors of complainant’s father, refuse to do him justice in the premises, and to pay him what is justly due to him out of the estates of his said lather and mother; and refuse to let him into the possession of the house and lot No. 101, which he is entitled to on his making titles to the lot No. 100. The hill prays for relief.

To the complainant’s bill, the defendant, Mary Grim-ke, pleaded the statute of frauds and perjuries, as to the claim of complainant, for the house and lot No. 101, in Meeting-street, which her father devised to her. The defendants also, for answer to the complainant’s bill, admit that the grand father and grand mother, and lather and mother of the complainant, made the several wills stated by him in Jus bill, and that J. P. Grimke got the monies of tiic several legacies bequeathed as stated. The defendants admit that J. P. Grimke may have offered and. paid the legacy of 400L currency to complainant, by transferring his claim on the estates of Ch. and J. Wright, which was for a larger sum, and from which complainant doubtless expected an advantage; and they admit they found complainant’s letter and conditional receipt, dated 16th December, 3784, for said debt, as, and towards satisfaction of said legacy. But they found a memorandum in the hand writing of Mr. J. P. Grimke, on said letter, hearing date the 16th of April, 1788, in these words — . *“*My son let this money for the legacy be deducted out of Olyphant’s bond (which he had given him some years before in advancement) as also of any other demands ho might have.” And they find among said papers complainant’s receipt in full for said legacy, dated 28th July, 1785, which they rely on as an acquittance; though the demand on Wright’s estate was lost. The defendants further insist, that the house No. 103, in Meeting-street, vested in the devisee Mary Grimke, under the will of her father, and cannot be shaken by the loose communica-*370turns between a father and a son, never perfected or cal'-ried into execution. That the defendants know nothing of any defeasance, nor have they formed any such paper as stated by complainant; nor do they believe that after Mr. J. P. Grimke the testator, executed titles to iiis son for the house No. 100, that he ever intended to give him house No. 101, which he expressly devises to his daughter Mary. Defendant admits that J. P. Grimke may have witten the letter to Mr. Thomas Smith, which is stated by complainant as an inducement to Ms consent to the marriage of complainant with his daughter, in which he promised to give his son a fortune of 2000k sterling. But the defendants contend “ that their testator J. P. Grimke only intended to give him so much money on such securities as he then possessed; for to the knowledge of two of the defendants, had J. P. Grimke paid such sum in cash, (2000k) he must, in order to raise the same, not only have sold the greater part of his securities, but also part of his real estate,” from the difficulty of getting money at that time on old debts, and the low value of securities. That defendants were well informed, and believe the letter of J. P. Grimke to Thomas Smith was written, and the promise to give 2000k made under a special agreement between J. P. Grimke and complainant, to pay the same in specialties; and also by Complainants offer in cage he had no issue at his death, that the said 2000k was to he x’eturned to J. P. Grirnke’s family. *The*defendants submit liow far the complainant’s not executing a bond to secure the return of the 2000k to the father, in case, of Complainant’s death without issue, and how far his refusal to receive specialties and indents offered to him by his father, ought to bar the claim of the 2000k and interest thereon. The defendants insist that the testator made his will deliberately, and on a full knowledge of his affairs, and upon a conviction that he had done enough fov his son, and that what remained of his fortune was properly due to his wife and daughters. The defendants insist that the will of Mrs. Mary Grimke, the mother of complainant, executed on the 8th February, 1786, by which she bequeathed all the property at her disposal (un*371der tlie several wills of her hither, mother, &c.) to her daughter, was made with the consent of her husband, (in whose hand writing the original draught ivas) and they submit that such consent gave her the power to make such will. And also that Mary Grimke having survived her husband, without revoking her will, the same amounted to a republication of the will made whilst she was under Coverture. Defendants admit that they have not admitted complainant to the benefit of any distributive shares of the estates of his father or mother, because their wills bequeathed the same wholly to the two daughters, and complainant has no right to any part of said estates. And defendants state, that J. P. Grimke acknowledged him • self in writing to be very largely indebted to his v ife and daughter for the legacies he had received, and monies borrowed by him from them, which must be paid before complainant could claim any division of the estates, even if he had aiiy rights therein. Defendants deny complainant's allegation, that he offered to convey the house No. 100, to his sister, but if it had been made, it would have been refused. Defendants set up various discounts against the demands of the complainant for supplies, and deny all combination, &c. This cause came to a hearing before the court, when the following evidence was produced, as taken from the minutes of chancellor Mathews:

Letters from J. P. Grimke to John F. Grimke, dated 26th and 27th October, 1782, relative to the bouse and lot No. 101; also, the titles for the house and lot No. 100.

J. P. Grimke’s letter, promising 2000L sterling on his son’s marriage (without date.)

A statement of what was assigned by J. P. Grimke, ■and what was actually received.

A copy of Mrs. Mary Grimke’s will, in the handwriting of her husband.

Letters from J. P. Grimke, of 16th December, 1784: of the 16th July, 1785; 16th of April, 1786, and 7th of February, 1788.

A statement of account due. by J. P. Grimke, to Mary Grimke.

*372Deeds drawn but not executed, from J. P. Grimke t© J. F. Grimke, for the house and lot No. 101.

J. P. Grimke’s- account of what had been expended ty' On liis son*

Note of hand of J. P. Grimke, to his daughter Mrs; Coslett, for 2000k dated 1st of January, 1785; apd note to his daughter Mary for 2000k same date.

An acknowledgment from J. P. Grimke, on the back of a bond to his wife, for 3700k for the legacies that had been left to his wife.

General C. G. Pinckney for complainant

argued, that the letters from the father to the son, promising to convey the house and lot No. 101, formed a contract, Which was voluntary indeed, but binding on a father making a provision for a child; and the court will even supply a defect in such voluntary conveyance. 1 Vern. 40, Thompson *vs.*Attfield. See Cowper, 710. The release of J. F. Grimke to his father J. P. Grimke, of the house and lot No. 101, for one of very inferior value, No. 100, was a mere submission to parental authority, and not the exercise of a perfect free will; and the court will lay hold of the circumstances stated, to replace the son in his rights. A release obtained unduly by a father, will be set aside in equity. 1 P. Wms. 641, 639. Courts of equity consider that done which was agreed to he done. 2 Powell, 56, 7, 9. The case of Clavering and Clavering, 2 Vern. 473, is much stronger than the present, where the first voluntary engagement was supported, notwithstanding subsequent arrangements by the father. This doctrine is supported by lord Hardwicke, who is followed by the modern writers. Powell on Powers, 204, 5. It is the business of courts of equity to relieve against lapse of time. See 2 Powell on Contr. 272, 3. But complainant had no right to claim the fulfilment of the promise for the house No, 101, till the death of both his father and mother; for his father’s letters expressly fix that time for the commencement of his rights. Such cases are out of the operation of the statute of frauds. See 1 Eq. Cas. abridged, 22. 1 Vernon, 110.

*373With respect to the legacies from the grand father and grand mother, to the mother, which came into Mr- J. P. Grimke’s hands, interest ought not to be allowed on them out of his estate. It is quite settled that the wife cannot, after the death of the husband, recover the arrears of her separate estate for more than one year. See Powell *vs.*Hankey and Cox, 2 P. Wms. 82. Thomas *vs.*Bennett, 2 P. Wms. 341. Fowler *vs.*Fowler, 3 P. Wms. 355. Lord Townsend *vs.*Wyndham, 2 Vesey, sen. *7.*Peacock *vs.*Monk, 2 Vesey, sen. 190. Nor should the legacies put into the treasury and sunk, or greatly depreciated, he made good out of Mr. J. P. Grimke’s estate. Brown *vs.*Litton. 1 P. Wms. 141, 648. Mrs. Mary Grimke, the mother, could not make a will, and dispose of her separate estate, as she has done, to her daughters to the exclusion of her son the complainant. As a feme covert she could not make a will by our laws. See public laws, 138, 149. If the wife outlives the husband, and does not actually confirm her will made in his life time, it will not be good. 4 Burn’s Eccles. Law, 47, Clavering *vs.*Clavering. 2 Vernon, 474 (though that relates to a will of real estate.) With respect to the promise of 2000l. on the marriage of the son, there can be no doubt of its being obligatory on the father. Marriage is the highest consideration in law. 2 Atk. 158, 9. 2 Powell on Contr. 26; and children are a party to it. A contract or agreement may be supported by blood or natural affection. *1*Powell on Contr. 361. Alettcr will, in equity, amount to an agreement. 1 Powell on Contr. 288, Moor *vs.*Hart. 2 Rep. Chanc. 147. 1 Vern. 201. 2 Ventr. 361. A mother agreed to give her daughter a portion, and only signed the marriage articles as a witness. This was held sufficient to bind her. 1 Wilson, 118, Wilford vs. Buzely. Children are purchasers on good consideration; and equity will dispense with the form of the instrument. Powell on Powers, 163, 183, 4. Equity will decree any contract, which ought in foro conscientice, to be carried into specific execution. See 2 Powell on Contr. 10. Strange, 456. As to the time of payment, when a person promises and fixes no time, the money must be paid presently. 1 Powell on *374Conti*. 180, 260. Thei’efoi'e, the 2000?. ought to bear in-tercst from the day of complainant’s marriage. A clandcs» tine agreement, if such had been made, which is denied, to rcíuru a part of the portion, is void, as a fraud on the other party. 2 Powell, 165. 1 Eq. Cas. 88. 1 Vern. 348. 2 Eq. Cases, 187, 585. 1 P. Wms. 121, 496. 1 Vern. 475, Gale *vs.*Lindo. Where a parent is of ability, he is not at liberty to charge his children for maintenance and education (even when they have separate estates.) See 1 Bro. C. C. 370, Hughes *vs.*Hughes.

Mr. Read and Mr. Pringle for defendants

argued, that the complainant’s acceptance of the conveyance of the house and lot No. 100, being subsequent to the letter of file father, promising to convey house and lot No. 101, is a bar to his present claim of the latter. Complainant was free to accept the exchange or substitution of the enc for the other, lie did in fact accept it, and recorded the deed for the house No. 100, as late as the 1st March, 1784, so that he acted with deliberation. And there is no proof of any undue means or influence used by the father to induce the son’s acceptance of the one house for the other: and that will not be presumed. The proposition to settle the 2000?. on the marriage, originally came from the father to the son. It is a voluntary agreement, which, though regarded by equity, is not put on so high a ground as agreements on valuable consideration. See 2 Powell, 221. 1 Powell, 340. 2 Stra. 138. 2 Eq. Cas. aim 52.2 Comyn’s digest, 571. The will of Mrs. Mary Grimke being in the hand writing of her husband, it is an assent by him to her exercising that power; and it is a good disposition to her daughter of all the property she had a right to bequeath. As to the interest on the 2000?. nor-time, is specified, and no interest is allowable till demand made, which is from the filing this bill.

Mr. E. Rutledge for complainant.

Ilis claims are for the house No. 101; Ms grand mother’s legacy of 400?.; tho 2000?. marriage portion, and interest from the marriage. Also, to his proportionate share of several legacies to his mother, which his father had reduced to possession, and the wife had no right to dispose of them by *375her will. Complainant is also entitled to a third part, being a distributive share of Mrs. Mary Grimke’s (his mother) estate. She was entitled to one third of J. P. Grimke’s personal estate; that surely could not pass under a will made before her husband’s death, and had no relation to it. As to the house, the ground of the claim lias been fidly stated. As to the legacy of 4001. the lather had no right to direct his son to pay himself out of the bond of Olyphant, which he had previously (nearly two years) before assigned as a gift, and an advancement to his son. Besides, that bond might never he productive; it was not so at that very time. With respect to the 2000Í. promised on the max-xiage, there is not a shadow of doubt about that. The right to interest follows of course from the time of the marriage; for the object of such provision is the means of immediate subsistence; at least as far as the interest. The law prohibits married women from snaking wills; and when they are permitted to do so, tinder a power given by a third person to dispose of something, she acts merely as the attorney or appointee of such person. See 2 Atk. 661. When there is a provision for a separate maintenance, and the hush axxd supports her, she has no right after his death to demand arrears.*

*376•dkmiejsbook, p. ISO.

*

 No question seems to have been made in this case, of the right of the complainant’s mother to bequeath to her two daughters, in exclusion of her son (except two guineas which she bequeathed hint) the whole of the legacies, which, had been given to her by her mother, with, authority to dispose of them by deed or will, “ to and among her children, in such proportion, manner, and way, and with such limitations as she might think fit.” Doubtless the able counsel who argued this case considered the words of the will, giving the power of appointment to the mother, as vesting in her an uncontrollable power over the subject, too clearly to warrant an argument against its use, or even its abuse, by a very unequal distribution. Nevertheless, the authority of the court of chancery to control and regulate the exercise of this power of appointment when abused, has been long established. Lord chancellor Nottingham, in the case of Gibson *vs.*Kinder, 1 Vern. 66, decreed, that the appointment was illy exercised and void, because the division made under the power was extremely unequal; and that without any good reason shewn to warrant, it, and he directed an equal distribution, 'i'lie same was tFoidji, *h\*Wall *vs.*Thurbourne. 1 Vern. 355, 414 *376Powers are considered as trusts in this court. See Kemp vs. Kemp, 5 Vesey, 856. And the chancellors have generally followed lord Nottingham’s doctrine, that this trust must be exercised justly and impartially; but its applicationlms been found tobe extremely difficult and delicate; so much so, that several of the judges in equity have been very desirous to get rid of the rule altogether; but they felt themselves too strongly bomidby the authorities. It seems now to be settled, not however without some exceptions, that where a power is given to a parent to divide any property among his children, in such proportions, as he may think fit, it is required in the exercise of the power, that some proportion of the property should be given to each child; unless another adequate provision be made for the child attempted to be excluded, either by the original donor, or by the person entrusted with the power of appointment; or unless some other good reason be shewn for the exclusion. But the proportion of the property which must be given to each child, is left at law wholly, and in equity a good deal, in the discretion of the person authorised to appoint. That proportion, however, must not be so small or nominal as to be entirely illusory. It must be something substantial, or the court will interfere, and declare it void. But what that proportion must be, is unavoidably left quite undefined, and this has- frequently produced the greatest embarrassment to the judges in equity. The cases are collected, and the difficulty of applying the rule is stated very fully by the master of the rolls, lord Alviui-*377*key,*in the rase of Spencer anti Spencer, reported in 5 Vesey, 362, and snore sully in the case of Kemp and Kemp, 5 Vesey, 849, 806; and subsequently by the master of the rolls, sir William Grant, in the case of Butcher m Butcher, reported in 9 Vesey, 382. Since which the cases of Bax *vs.*Whitebread, 10 Vesey, 33, Maundrel *vs.*Maundrel, 10 Vesey, 255, Burgess *vs.*Mawby, 10 Vesey, 319, Dyke *vs.*Sylvester, 12 Vesey, 126, and Mocatta *vs.*Lonsada, 12 Vesey, 123, have been decided; and especially Butcher *vs.*Butcher, 1 Vesey and Beames, 79 and 99. These cases are distinguishable from another class of casos, where there is a trust, arising out of the words “ i desire,” “1 wish,” &c. used by the donor or testator; in which, the person entrusted, must follow strictly the directions given, or the wish expressed. See the case of Harding vs. Glyn, 1 Atk. 469, Saunders’ edition, where the authorities are collccvd. See also 1 Vesey, jun 270. 2 Vesey, jun. 333, 529. 4 Vesey, 708. There is also another question of importance — U is as to the right of property going with the power of appointment. A gift to A. (indefinitely) and to such person as he shall appoint, is absolute property in A. without an appointment. But a gift to A. for life, and after his death, to such person as he shall appoint by deed or will, he must make such an appointment in order to entitle that person to any thing’. See Bradley *vs.*Westcott, 3 Vesey, 452. See the cases collected in Bridgman’s Anal. Index, title, power.

Chancellor Mathews

delivered the decree of the courts

In this case there are several claims of a distinct and separate nature. It has been stated that these claims are original or derivative, direct or collateral; that is, such as immediate engagements with, or devises to, the complain-aut> or such as alight upon him by mere operation of law. Of the first class is the claim upon the house No. 101, in Meeting-street. , Second, of four hundred pounds, old currency, bequeathed by the last will of his grandmother, Mary Fauclieraud. Third, of two thousand pounds sterling, promised by his father as a marriage portion.

John Paul Grimke, by a letter dated the 26th October, 1782, writes to his son, the complainant, as follows: ££ If you can contrive the deeds for my house I now live in to como to you, and. be entirely your own property after my and your mother’s death, then have them drawn, and I will execute them when you come to town.”

The complainant, on the 7th February, 1788, writes to his father, requesting to know ££ which of his houses he intended for Mm, as he wished to tile the one which *377¡should he *\mf*and the father, by his answer, confirmed io him the right in the house No. 100, of which In has (lince been constantly possessed. And in several letters, of daten subsequent to the father's letter, he acknowledgen himsdf perfectly satisfied with the provision made for him by his father, though No. 100 was not the one originally spoken of, and not so valuable as No. 10J.

It vuis considera! then by the court, from the whole tenor of the ct hkv.ee, that this ¡udetaraiinate engagement of the lather, entered into from mere good will, without any special consideration moving thereto, was acquiesced in by the aonj and that in satisfaction thereof, independent of other provision, he held the house No. 100, without complaint till his father's death.

2d. A legacy of four hundred pounds was left to the complainant by Mary Faucheraud, his grandmother, Which came to the hands of John Paul Grimke as natural guardian of the complainant, to be kept for his advantage, and to be paid him upon his arrival at Ml age. This legacy was discharged by payment of an old bond of German & Charles Wright, whoso estate was afterwards *378confiscated, and which has since proved insolvent Th? complainant gave to his father a full discharge for this legacy; but since the date of his receipt to his father the E'e:'ian<^ against the confiscated estate lias been returned *to*the father, and since his death Isas been found among his papers. A letter of Jolin Paul Grimke to the complainant has the following paragraph: “ Then return me again said assignment, provided it is not recorded, and Í will find some other way to pay you said legacy.” And in another letter, dated April, 1788, he says, “Let this money for the legacy be deducted out of Olyphant’s bond.” Wo then cannot but consider the efficacy of the discharge rendered abortive by these subsequent undertakings of the father; more especially where it appears that the consideration for which the receipt was given, had actually failed, without any improper delay in the complainant. But it has been contended, that by the same paragraph in which he re-assumes the payment of the legacy, he has also appointed the fund out of which it shall be paid. Yet by his letter to Mr. Smith, and also in a letter of anterior date to his son, he expressly enumerates this bond as one given to his son for his advancement. We will then receive this equitable re-assumption of the debt, discharged 1'rom condition of payment out of a fund, over which the father then had no control.

The next direct claim of the complainant is the sum of 2000?. promised by his father as his marriage portion. It was not disputed, but that this promise had been originally made; but three grounds of objection were made by defendant’s counsel. 1st, That the promise was made on condition that the complainant should assure the defendant’s testator, that on failure of issue in himself, the 2000?. should return to the family of John Paul Grimke, which condition he never complied with. 2d, That the 2000?. must have been intended to he paid out of such facilities or securities as he then held, there being little'or no money at that time in circulation. Sd, That in payment or discharge of the marriage portion (if decreed by the court) an account of monies advanced, and of other things given *by his*father, should be admitted. The first objection *379w as obviated by the production of John Paul Grimke’s letter without date, wherein he says, “ As I do not desire the. bond from you to refund according to your own promise,” Ac. And it was also urged by the complainant's counsel on the authority of several well adjudged cases, particularly 1 Wilson, 118, Powel on Powers, 163. and Powel on Contracts, 165, that any condition annexed secretly to an agreement of this nature, whereby a third person may he, imposed on, shall be void. And in this ease Mr. Smith having given to his daughter 20001. absolutely and unconditionally, the complainant in reason should not have been hound down to such unfair terms; if therefore the condition had not been avoided by the subsequent declaration of John Paul Grimke himself, Ibis event would have released the agreement from the imposing condition annexed to it. The second objection was not sustained by any evidence, but merely submitted to the court as the probable intention of the parties at that time, taking into view the situation of the country, and the nature of all the transactions of that day. Upon mature deliberation, W'e do not conceive ourselves authorised from mere suggestion, without auy evidence to support us in so doing, to alter the reasonable and equal agreement of the parties; especially as it w7as in evidence that the complainant constantly refused to receive any thing but money, or the full value in good property in discharge of his marriage portion; in like manner as he had received from the father of the lady with whom he had married under the full permission and consent of his father, and with his written assurance of giving him 20001. for the express purpose of equalizing his fortune with her’s. Bow then is this to be done? Not surely by receiving in payment securities, in which there wTas no security? A par A or the whole of which, from the fluctuation of the. times, might eventually he of little or no value. This would he unequal and inequitable. Unequal, because Mr. Smith’s inducement for advancing 20001. to his daughter, would thereby be lost; and inequitable, as imposing on his son a shadow for a promised substance. With respect to those claims which alight upon the party by the mere, operation *380of law, the complainant’s counsel have stated as follows". *“*That Mary Grimke, mother of the complainant, was entitled under the will of Mary Faucheraud, her mother, the sum of six thousand pounds old currency; and also by the same will to one other sum of 1000Z. like money; and that she was also entitled to afurther sum of 5000/. like money, under the will of Gideon Faucheraud. And that she was entitled to a further sum of 200/. like current money, under the will of Susanna Villeponteaux; amounting in the whole to the sum of 12,200/. old currency, which sum John P. Grimke in Ms life time reduced into possession, and thereof had the use and advantage; and at his death left incorporated with his other estate. That the mother, Mary Grimke, in the life time of John P. Grim-ke her husband, made her will in writing, with his express approbation and consent, be having written with Ids own hand a will for her, of which the one executed by her "was a mere transcript. John P. Grimke by his last will bequeathed three negroes, and one third pari of his residuary estate to his wife Mary Grimke, so that at the death of the said Mary Grimke, supposing her will to be valid as to all the interest contended for by the defendants, she had disposed of to her two daughters, Mary Grimke, and Anne Coslctt, the sum of 12,200/. old currency, with interest, and the three negroes, with one third part of the whole residuary estate of the said John P. Grimke. But the complainants object, 1st, That the will is altogether invalid, as having been made during the life time of John P. Grimke, and never republished since his death. 2d, That even if the court should overrule this objection, that nothing would pass by the will so far as relates to the legacies left by Mary Faucheraud, Gideon Faucheraud, and Susanna Yilleponteaux, as these were made to her whilst covert, and not to trustee for her use; and therefore, in fact, was a bequest to the complainant’s father, and shall be deemed a pari of his residuary estate; to one third of which the mother was entitled, and ivhich will bo distributed among the complainant and his sisters according to law. 3d, The complainant contends that in the event of the 12,200/. being decreed to be well *381disposed of, that no interest should be allowed on it, being expressly given for the support and maintenance of Mary Grimke. 4th, That no part of the father’s estate intended for the mother, can be conveyed by her will, it having been executed in the life time of the father before the legacy was vested, and never republished according to the act of the assembly of 1739. The first objection under common circumstances, we conceive would bo fatal,- but certainly an express and written consent of the husband will enable the wife to convey a property given for her separate use; and he by such declaration shall be considered as trustee to carry such will into effect. 1 Fonb. DS, which opinion is there supported by several respectable quotations. In this case the husband may, with propriety, be said to have made this will himself for so much of the estate, as lie was the composer of the will, it being originally in his own diction and hand writing, and merely transcribed and executed by the wife. This then shall be deemed a sufficient assent by him to enable her at all events to bequeath those legacies, and the will pro tanto needed no rcpubiication, and shall not be void in toto. The second objection has been necessarily obviated in answering the first. The third objection this court will sustain, because it appeal's from the words of the wills, under which these bequesta were made, as well as from the reason and nature of the. case, that the interest arising on these several sums of money were to go for the support and maintenance of Mary Grimke the legatee; and were a contrary opinion to prevail, what husband of a moderate fortune would receive a legacy which would seduce his family into a more extravagant style of living than his circumstances would warrant; but which his estate must eventually, after the lapse of many years, make good with an immense accumulation of interest? We are of opinion that the fourth objection ought to prevail; a rcpubiication of the will being necessary to convey an interest which accrued to, and was vested in her after the execution of her said will: and the court decrees that the will can pass no part of the estate devised by John Tail! Grimke to Mary Grimke his wife. To sum uu *>.Im**382whole of this case then, this court decrees, 1st, That the^ AVjp refuse their aid to carry into effect the agreement respecting the house No. 101. 2d, That the legacy of 400Í. old currency be paid with interest, to he computed from 12 months after the death of Mary Faucheraud. 3d, That the sum of 2000k sterling be paid with interest from the time of his intermarriage with Miss Smith. 4th, That the will of Mary Grimke does not convey a right to any estate derived by hex1 from John P. Grimke, and that such estate shall be equally divided between the complainant and Mary Grimke, and Ann Coslett. And lastly, that the legacies amounting to *12,0001.*old currency, draw no interest until the death of Mary Grimke, and that from thence legal interest be allowed thereon. That it be refei’red to the master to ascertain the several sums due under this decree. — And that the costs of suit be paid by defendants.