We do not deem it at all necessary to consider the law of jointure, as settled in England under the 10th chapter of the statute 27 Henry VIII, and in many States of this union under similar enactments. Nor is it necessary that we should discuss the system of equitable jointures, 'which, in analogy to the statutes, has grown up under those jurisdictions, and which, in many cases, perfected a bar, where material requisitions and formalities of the statute were omitted. Neither is it necessary that we should declare the effect of an antenuptial agreement, purporting to bar dower, entered into by a female minor, or by her parents, guardian or friends, for her benefit. See, on these points, Drury v. Drury, 1 Eden, 59, re-printed in 8th Wendell, pp. 297 to 338; Davila v. Davila, 2 Vernon, 724; Dyke v. Kendall, 13 Eng. Law and Equity Rep. 410; McCarter v. Teller, 2 Paige, 511; S. C. 8 Wend. 267; Stilley v. Folger, 14 Ohio, 610 ; also, the cases cited on the briefs of counsel.
In Gould v. Womack, 2 Ala. 83, a bill was filed to obtain specific execution of an agreement entered into before marriage, by adults. The object of the agreement was, to bar Mrs. Hays of dower; and that record .raised the same legal questions as are presented in this.
In that case, our predecessors declared the following legal principles :
1. “ That equity has jurisdiction to enforce the specific performance of an ante-nuptial agreement, fairly entered into, between parties able to contract, in the same manner, and subject to the same restrictions, as other cases of the specific performance of contracts.
2. “That in this State, where there can be no legal bar to dower, and where an ante-nuptial agreement can only be *601enforced in chancery, as any other contract which the court may be called on specifically to perform, its aid cannot be had, unless the contract is fair, just and reasonable in all its parts, even if there be neither fraud nor misrepresentation, mistake or surprise, or if the inadequacy be not so great as to be of itself evidence of fraud.
8. “ That the only test is, to institute a comparison between the provision made in the will, and the actual value of her dower at law ; and it is by precisely the same process, that a knowledge of the fact of inadequacy in any contract can be ascertained.
4. “ That a provision to bar dower, where there is neither mistake, surprise, nor fraud, need not be as valuable as the dower ; but it must not be greatly deficient in value ; nor would this court be disposed to institute a nice comparison, especially in a case where, though not fully equal in value to the dower, the amount secured in lieu of it was a competent livelihood.
5. “ That the mere fact that the provision is an annuity, would, of itself, be sufficient to prevent this court from compelling the widow to accept it, in lieu of dower. The law gives her an absolute estate in her portion of the slaves and other personal property of the husband ; and it would be doing her great injustice, to require her to accept', in lieu of it, a mere annuity.
6. “ That at common law, by the marriage, the wife acquired a right to be endowed of one third part of her husband’s lands. This right she could not alien, or dispose of, in consequence of two maxims of the common law — first, that no right can be barred before it accrues ; second, that no right or title to an estate of freehold can be barred by a collateral satisfaction.
In Blackman v. Blackman, 16 Ala. 683, the doctrine asserted in the sixth proposition above was distinctly re-affirmed, as applicable to all cases where an ante-nuptial agreement is relied on, at law, to bar the widow’s dower. The judge who delivered the opinion in the case cited, referred to and commented on the opinion in Gould v. Womack, without disapprobation. He, however, declined to express any opinion on the effect, in equity, of the agreement then under, discussion.
*602We fully assent to the doctrine asserted in the case of Blackman v. Blackman, supra, as governing courts of common law in this State-. We also hold, that the proposition stated above, numbered 6, as extracted from Gould v. Womack, is a correct legal proposition, when applied to law courts, because, in this State, no such legal bar to dower has been provided.
The proposition numbered 5, taken from Gould v. Womack, is not applicable to this case, as no annuity was provided by the agreement we are considering. Hence we need not inquire as to its correctness.
We have no disposition to disturb the propositions numbered'from 1 to 4 inclusive. We are not only satisfied to acquiesce in them" as the settled law of this State, but we heartily concur in the argument by which they are supported. Neither do we wish this opinion to be regarded as assailing or sanctioning the proposition numbered 5. We simply withhold an expression of opinion upon it, as being unnecessary in this case.
Let us then, by instituting a comparison between the value of the provision made for Mrs. Webb by the ante-nuptial agreement, and the actual value of her dower at law, determine whether that provision was fair, just, and reasonable in all its parts.
According to the proof, Mr. Webb’s estate, at the time of the marriage, was worth twenty or twenty-five thousand dollars. His real estate was worth about ten thousand dollars.- In the real estate, his wife, if she survived him and became his widow, would be entitled to dower; _an,d it was not in his power to alien or dispose of it, so as to deprive her of that right, without her consent. Dower is a life estate in . one-third of the lands. The fee simple in that one-third was worth, say $3,333. . What proportion would the life estate bear to the fee ? Probably not one-half; but state it at one-half, $1,666. This, then, would be the value of the dower, at the death of the husband. But this must be farther reduced by two considerations : first, the enjoyment would be necessarily postponed until the death of Mr. Webb ; and secondly, the estate might never attach, because she might not survive her husband. Its absolute value cannot be demonstrated ; *603but we presume her contingent interest in her husband’s real estate, if they had married without a contract, would not then have commanded as much as one thousand dollars.
If Mr. and Mrs.'Webb had married without a contract in reference to her property, the marriage would have operated a present gift to him of her personal estate in possession, and such portion as he should reduce to possession during the continuance of the coverture. — See Magee v. Toland, 8 Porter, 37 ; Pitts v. Curtis, 4 Ala. 350 ; McDaniel v. Whitman, 16 Ala. 343 ; also, authorities collected in Mason v. McNeill, 23 Ala. 201 ; Gibson v. Land, 27 Ala. 117 ; Walker v. Fenner, 28 Ala. 367.
So, by such marriage, Mr. Webb would have acquired, at least, an estate during their joint lives, in her dower interest in the lands of her first husband. — Neill v. Johnson, 11 Ala. 615 ; Cheek v. Waldrum, 25 Ala. 152.
Mrs. Webb’s interest in the estate of Mr. Lewis, her first husband, was worth as much as twelve hundred dollars ; perhaps more. This, by the ante-nuptial agreement, she secured to her present and_ exclusive enjoyment. This vested interest would then have sold in the market for more money, than her contingent interest in her husband’s lands would have yielded, and hence was a fair equivalent for it. Indeed, when we take into the account the admitted fact, that this arrangement was perfected, the better to enable Mrs. Webb to educate her children, we cannot say that the contract, in this aspect, was not both a prudent and profitable one.
But it is contended in argument, that the provision secured by the settlement to Mrs. Webb, out of Mr. Webb’s estate, was not fair, just and reasonable, because it secured to her, only during widowhood, “ one third part of the estate, both real and personal, of which the,said John Webb should happen to die seized and possessed”; and that it was in the power of Mr. Webb to defeat this provision, by disposing, of his entire estate during his lifetime. If the entire provision for Mrs. Webb depended on such contingency as is above expressed, chancery would withhold its aid in carrying out such contract. — Sims v. McEwen, 27 Ala. 191; 2 Story’s Equity, §§ 750, 769. But such is not this contract. We have seen that, in securing her own estate to her sole and *604separate use, Mrs. Webb obtained a full equivalent for any contingent dower she might obtain in her husband’s lands. The only other interest she parted with, is the right she would have, if she survived him, to share as a distributee in the personal property belonging to his estate, which should remain after the debts were paid. Mr. Webb, at the time of the marriage, had four children ; and her distributive interest, under the law of descents, would have been one fifth part of the personal estate, left after the payment of debts, in absolute right. Eor this distributive interest, she, in the ante-nuptial contract, agreed to accept one third part of the estate, real and personal, of which he should die seized, to be enjoyed during the term of her widowhood.
It is difficult to institute a comparison between the several values of these interests. It is obvious that, during the period of her widowhood, the provision would have afforded her an ample support; and in such cases, as we have seen, it is not our duty to institute a nice comparison. — Gould v. Womack, supra. So long as she should remain a widow, the provision was much more abundant than her distributive share. At her time of life, it is scarcely presumable that she would contemplate a subsequent marriage; and we are led to suppose that the limitation to the period of her widowhood, presented no serious bar to her acceptance of the provision.
The argument, based on the fact that this contract gave Mr. Webb power to defeat Mrs. Webb’s claim on his estate, by disposing of his personal property before her- rights could mature by his death, though specious, is not solid. If they had married without ante-nuptial agreement, he would have had the same power to cut off her distributive interest, by disposing of his personal property.
As early as 1746, Lord Hardwicke said, “ The constant doctrine of this court is, that it is in their discretion whether they will decree a specific performance, or leave the plaintiff to his remedy at law.” — Joynes v. Statham, 3 Atk. 388. This doctrine has been steadily maintained, down to the present time. — Seymour v. Delancey, 6 Johns. Ch. 222; Ellis v. Burden, 1 Ala. 458 ; Gould v. Womack, supra; 2 Story’s Equity, §§ 736 to 742. “The question is, not what the court must do, but what the court may do, under the *605circumstances.” This discretion is not an arbitrary assumption of authority, but a sound discretion, “ regulated, as near as may be, by general rules. — Pulliam v. Owen, 25 Ala. 492 ; Sims v. McEwen, 27 Ala. 184 ; Casey v. Holmes, 10 Ala. 777.
Hard and oppressive bargains will not be decreed to be performed, but the parties will be left to their remedies at law, if they have any. — Ellis v. Burden, 1 Ala, 459 ; Casey v. Holmes, 10 Ala. 777; Seymour v. Delancey, 8 Cow. 445; 2 Story’s Equity, § 750. If either party has performed a valuable part of the contract, and is in no default; and the other party has derived a benefit from such part performance, the court will not withhold its relief, unless- there was fraud, undue advantage, or the bargain was palpably hard and oppressive. — Hays v. Hall, 4 Porter, 374 : Casey v. Holmes, supra ; 2 Story’s Equity, §§ 751, 771, 772, 774; Seymour v. Delancey, supra; Andrews v. Andrews, 28 Ala. 432.
In the case last cited, Andrews v. Andrews, the husband was compelled, at the instance of the wife, specifically to convey slaves, worth four thousand dollars, upon a considei’-ation which was, at most, worth perhaps five hundred dollars. In that case, as in this, the contract had been partially performed, and the parties could not be placed in statu quo. True, in that case, there were some outside circumstances, to which the court attached importance. But it still stands as an authority that the court will not, at all times, institute a critical comparison between the consideration received, and the value of the property agreed to be conveyed.
Without intending to unsettle the principles which controlled the decision in Gould v. Womack, but expressly re-affirming them, as far as indicated above, we cannot say, on the facts disclosed in this record, that the ante-nuptial contract was not “fair, just, and reasonable in all its parts.” Mrs. Webb desired to educate her children. She obtained some present means for that purpose, by reserving her own property to her sole and separate use. In this she obtained more than an equivalent for her contingent dower interest in her future husband’s lands. Add the advantage thus obtained by her to the interest in Mr. Webb’s estate, secured to her by the agreement, and we feel bound to declare that the *606provision affordéd ber reasonable maintenance", considered in reference to the property owned by Mr. Webb.
There is a repugnance between the introductory recitals in the deed, and the granting clause. The bill alleges that the recital is a mistake, and that the granting clause correctly expresses the interest intended to be conveyed. The answer admits the truth of this averment. Under this state of facts, we would, if necessary, correct the ante-nuptial agreement. The general rule is admitted, that parties are estopped from denying the facts recited in their deeds. Neither will they be permitted, in a court of law, to prove a consideration different from that expressed, so as to change the character of the instrument. — Murphy v. Branch Bank of Mobile, 16 Ala. 90 ; Eckles & Brown v. Carter, 26 Ala. 568. In the present case, the deed furnishes its own correction. The granting clause determines the interest intended to be conveyed, and prevails over the introductory statement. — Kershaw v. Boykin, 1 Brevard, 301. This is not intended to disturb thé well-settled rule, that if two clauses in a deed arc so repugnant that they cannot stand together, thefirst prevails over the last. — Could v. Womack, supra. The bill, so far as it had for its object the reformation of the deed of settlement, was unnecessary.
The use of a house servant, and household furniture, supplied by Mrs. Webb to the family establishment, was doubtless a gratuity, intended to promote her own comfort, as well as that of the family. She can make no charge for them, and they oppose no barrier to the bill in this case.— Roper v. Roper, at the June term, 1856.
The answer sets up, as a further ground of defense, that Mr. Webb agreed to supply, out of his own estate, the means for the education of Mrs. Webb's children ; and that he failed to do so. This is affirmative matter, not responsive to any allegation in the bill; and the onus of proving its truth was on the defendant. The averment is not proved. — Hanson v. Patterson, 11 Ala. 738 ; Royall v. McKenzie, 25 Ala. 363 ; Walker v. Palmer, 24 Ala. 358 ; Carroll v. Malone, 28 Ala. 521; Grier v. Campbell, 21 Ala. 321.
There is no error in the record, and the decree of the chancellor is affirmed, at the cost of the appellant. J