The opinion of the Court was delivered by
Rogers, J.Both parties claim under Christian Leonard, who died seised of the premises, intestate, leaving a widow and six children, one of whom, Margaret, is since deceased. To the November Term 1841, the plaintiffs, Ludwig and Kneedier, obtained judgment against Edward B. Leonard, one of the heirs, and on a venditioni his interest in the house and lot was sold, and conveyed by the sheriff to the plaintiffs. This gives the plaintiffs a primh facie title; but the defendant resists the right to recover on an article of agreement, by which he contends Edward conveyed his whole interest in his father’s real estate to him, and an alleged parol sale of Margaret’s interest to him, or an agreement to convey to her sister, Sarah Leonard.
The agreement between Edward and William Leonard is in these words: “It is agreed, this 25th January 1831, between Edward B. Leonard of the one part, and William Leonard of the other, both of the Borough of Carlisle, and legal heirs of Christian Leonard, late of said Borough, deceased, died intestate, seised in his demesne of certain real estate situate in the Borough of Car-lisle ; and that whereas, the said Edward, for and in consideration of the sum of $600, the receipt whereof is hereby acknowledged, doth bargain sell and release unto the said William all his interest in said real estate, except so much of said estate as shall be coming to the said Edward at the decease of the widow of said Christian.”
In the construction of all instruments of writing inter partes, the intention is the governing rule. Thus, the words of an indenture, executed by both parties, are to be construed as the words of both; for although delivered as the words of one party, yet they are not his words only, but the other party has given his assent to every one of them. In this way, an indenture is distinguishable from a deed poll, which shall be taken most strongly against the grantor. Shep. T. 177. It is also a cardinal rule in the interpretation of all instruments of writing whatever, that the construction be made on the entire deed, and not merely disjoined parts of it; *48and that every part of it be (if possible) made to take effect; and no word but what may operate in some shape or other. Shep. T. 176; 1 Buls. 101; P. Will. 459. Taking this to be the rule, the objection to the construction given by the court to the agreement is, that it rejects altogether the exception, which is an essential part of the contract. The court give it the same meaning as it would bear if those words were stricken entirely out of the agreement. But this is contrary to the rule, that every part of it (if possible) is to take effect, and that every word must be permitted to operate in some shape or other. This, be it observed, is an exception and not a reservation, nor is there any repugnancy between the exception and the grant.
But let us inquire whether it is possible, by giving every word of it its proper signification, it may not be so interpreted as that the different parts of the instrument may stand very well together. It does not strike me that it is very difficult to understand the reason of introducing the exception, or the manner in which it operates upon and modifies the previous part of the agreement. When an intestate leaves a widow and lawful issue, by the third and fourth sections of the Act of 1794, the widow is entitled to one-third of the real estate during life, and the remaining two-thirds immediately descends to the children. At the death of the intestate, two-thirds goes into their possession, and one-third into the possession of the widow. That part, therefore, which remains after taking out her life estate, in common parlance, and perhaps in legal contemplation, takes effect only on the death of the widow. It is certain that until this event the heirs have no immediate enjoyment or possession of it. So, when the real estate is appraised, the widow's third remains a lien on the land, the interest to be paid to her annually; the principal to the heirs after her death. Keeping this in view, it furnishes the key to the intention, and enables us to give the agreement such a construction as to give every word its legitimate effect. The words “ except so much of said estate as shall be coming to the said Edward at the decease of the widow,” obviously mean that part of the estate, whether it be real estate or money, which remains after deducting the two-thirds to the heirs and the one-third during life to the widow, or the reversionary interest in the widow’s part of the real estate, or the money which by operation of law is a substitute for it. It is very obvious the exception was introduced for some purpose, and it is equally plain that Edward did not intend to part with all his interest in the estate. It can therefore be referred to nothing else; there is no medium between that interpretation and rejecting that part of the agreement altogether; the latter of which is to be avoided, as we have seen, if possible. Besides, the interpretation is neither repugnant nor unreasonable, nor is there an insuperable difficulty in understanding the reason of the exception. It was easy to ascertain the value of the two-thirds, but not equally so to agree *49as to the price of that portion which remained after the termination of the life estate ; it depended on the contingency of the death of the mother, a risk which neither the vendor nor vendee may have been willing to run. Besides, (operated upon by these considerations), it is by no means unusual for heirs to dispose of all their share or interest in the real estate with a reservation such as is contained in this agreement, expressed, it is true, in language rather more intelligible than that used by these parties.
Next, as to the disposition of Margaret’s share. I have had some difficulty in understanding on what grounds precisely the defendant rests this part of the defence, whether on a sale to Sarah or a sale to himself, directly; but whether on one or the other, it equally avails him, as the plaintiff must recover on the strength of his own title. The case must be viewed, therefore, in both aspects.
The sale to Sarah Leonard depends on the meaning of a release or assignment, in the following words : — “I, Margaret Leonard, daughter of Christian Leonard, late of Carlisle, deceased, who died intestate, for good causes and considerations do by these presents transfer and assign to my sister Sarah Leonard, my share, right and title and interest due, or to become due to me out of my said father’s estate, in the hands of William Leonard my brother, to be paid by him, being about the sum of $200 more or less.” This instrument does not purport to assign or convey real estate, but the proceeds of real estate and personal estate. It is absurd to say of real estate that it is due, or that it becomes due; such expressions are only applicable to personal property. And this is further probable from the fact that about the sum of $200 would be coming to her from William on settlement, as it is fair to believe he received the rents and some part at least of the personal estate. And what is conclusive as to this is, that Sarah, who was examined as a witness, does not say that Margaret conveyed to her, or intended to convey, her interest in the realty. Her evidence, as far as it goes, tends rather to prove that it was sold to William.
But did Margaret sell her interest to her brother William, is the next inquiry ? It is not pretended there is any written contract. It depends altogether on parol proof. As a general rule, contracts, as to real estate, must be in writing; and to take a case out of the statute upon the ground of a parol sale, it is indispensable that the contract be established by clear unequivocal proof, and that it be definite in its terms. If the terms are uncertain or ambiguous, or are not proved by clear and satisfactory proof, a specific performance will not be decreed. No title passes to the vendee. A Court of Equity will not, no» should a jury be permitted to deprive another of his land, on uncertain and inconclusive inferences. Now what proof was there that there was any contract whatever, either written or parol, for the sale of this pro*50perty ? It amounts to this and no more, that men were appointed who performed the duty to value and appraise the estate belonging to the heirs, real and personal, and to a presumption, which is a fair one, that this was done with a view to a settlement, and to an intended purchase by William. But. that this design, though contemplated, was consummated either before or after the valuation, is a mere matter of conjecture. Sarah, who must have known the fact, if it was as is contended, does not prove a sale. In 1815, she says, my sister had a meeting in reference to the settlement of my father’s estate. My sister Margaret often wished William to have a release. She told her she wished he could have a release. The agreement among the heirs was that William was to get the real estate. She frequently heard Margaret wish that William should have a release. All that can fairly be collected from the testimony is, that it was the common understanding that William, if he desired, should be the owner of the real estate at a fair valuation. This would seem particularly to have been the wish of Margaret, and her expressions, repeatedly made, indicate her regret that he had not become the purchaser. She is sorry that William had not a release; or, in other words, for some reason, she regrets William was unable or unwilling to purchase the property. Her expressions are unmeaning and idle on any other supposition.
Besides, there is no proof of any contract nor of any change of possession in pursuance of a contract. William had and continues to have possession of the property as a tenant in common with the other heirs. No distinct possession by him has been proved. And as to the improvements, they amount to nothing, unless some evidence is given of a contract by which William became the owner. Improvements, as it appears, were made, as well before as after the time of the alleged purchase. They were made by him as tenant in common, and the cost of these improvements was an item in the valuation made by the men specially selected for that purpose. There was no proof that a dollar of the purchase money was ever paid. If there was a contract, when was it made, what were its terms and conditions, and what part of the purchase money, if any, was paid ? These are questions to which you may look through the testimony in vain for an answer. In all these essential particulars the evidence is deficient; and to decree a specific performance on such proof would in effect repeal the Statute of Frauds.
Judgment reversed, and a venire de novo awarded.