Joseph Seymour, the first husband of the plaintiff, Mrs. Morgan, devised to her the tract of land in question. After his death, she was married to Isaac Tillet, the father of the defendants, and upon his death she was again married to the plaintiff, James M. Morgan. While the wife of Tillet, she joined with him in a deed for this land (40) to one Enoch P. Dailey, and was privily examined touching her willingness to execute the same; upon which occasion, she declared her entire willingness to do the act, and then again assented to it. Dailey immediately conveyed the premises to the husband. The consideration expressed in both these deeds is $2000, but no money was paid, and the real object was to transfer the land to the husband: the point of controversy between the parties is as to the terms upon which this transfer was made.
The plaintiffs in their bill say that there was a parol agreement between the husband Tillet and his wife, that she was to have the land in fee simple in case she was the longest liver: that he was to put the improvements on it which he did, and as a consideration for so doing, was to have the land, in case he survived her, and that such agreements was to be put in writing immediately after the *Page 35 marriage: That after the marriage, her husband assured her that he would fulfil the contract between them by making a will in her favor for the land which she ignorantly supposed was a proper, if not the only way to carry into effect their understanding, but that he had failed to make any will, and the land had descended to his heirs at law, the defendants.
The answer denies that any such agreement was made, and insists that if any such was made, that the statute was a bar to their suit, and upon this they rely, as if the same had been alleged by way of a plea.
There was replication to the answer: commissions and proofs, and the cause being set for hearing, was sent to this Court. Whether the parol agreement to reconvey the land, so that it should vest in Mrs. Tillet, (now Mrs. Morgan,) if she should survive her husband (Tillet) which is alleged in the bill, could be decreed to be specifically performed, if it had been fully proved or admitted, notwithstanding the statute of frauds, is a question that we are not at liberty to decide.
The agreement alleged is not proven. We are inclined to think, from the proof, that Tillet was not willing to make the expensive repairs and improvements, that his wife desired to be made upon (41) the land, and that were necessary in order to make it an elegant and comfortable residence, unless the title was vested in him, and that Mrs. Tillet consented to pass the title to him in consideration of his making the repairs and improvements, with an understanding, that he was to make a will devising the property to her in the event of her being the longest liver. Tillet, it would seem, violated his promise and neglected to make a will. There is no power in this Court to make one for him, or to require his heirs to do by deed, what he had promised to do by will: because, the very essence of a will is that it is "ambulatory": a will made to-day may be revokedto-morrow: for this reason, the idea of decreeing a specific performance of an agreement to make a will is not to be met with in any of the books; and the plaintiff's vainly endeavor to avoid the question by alleging that Tillet had agreed to convey. Whereas the proof is, he had agreed to make his will and give the land to his wife if she should survive him.
Per curiam.
Bill dismissed. *Page 36