dissenting:
On June 15, 1904, Samuel G. Atkins, a wealthy bachelor, made his will, whereby he made special bequests to various relatives and gave the residue of his estate to his sister for life, with remainder to her children, two-thirds to Helen Gray Moore and one-third to James Atkins Gregory.
While in extremis on November 30, 1915, he undertook to revoke this will, but being too. weak, it is said, that he told his three negro servants that he wanted to revoke. his will and what disposition he wanted made of his estate, and subsequently sent for C. T. Watkins and his physician, Dr. Tompkins, to whom he also stated his wishes.
After the funeral his relatives, without knowledge of' the contents of his will, assembled at his residence and *545agreed among themselves to revoke his will and carry into effect his wishes as detailed by the three ignorant negroes, supplemented by the evidence of Mr. Watkins and Dr. Tompkins, where it was most beneficial to every one except Atkins Gregory and his mother. This agreement was absolutely void because in violation of section 5233 Virginia Code and the public policy of every civilized country.
Next day Captain Coke, attorney for Mr. Atkins, and Mr. Jackson of the Virginia Trust Company, which company was made one of his executors, came to the residence and read the will. Captain Coke told them that the will would have to be probated, and the estate held under the terms of the will, but that the parties could make a collateral agreement carrying out the terms of their previous agreement which he and Mr. Collins undertook to put in binding form. By this agreement every relative profited largely except Mrs. Gregory and Atkins Gregory, who surrendered not less than $125,000.00 to $150,000.00. Atkins Gregory was an inexperienced college student who had attained his majority in the previous July. This suit was brought to set aside this agreement and establish the will.
It is manifest that there is no consideration to sustain this agreement except the - wishes of Mr. Atkins, which contravene the statute law and sound public policy, and if the courts were to compel specific performance of such contracts would open a Pandora’s box of fraud upon them. Freedom of contract is not superior to the sanctity of wills and other written instruments.
It is the contention of the appellant that this was a “family settlement.” In the cases cited to sustain this contention of Lucketts v. Lucketts, 10 Leigh (37 Va.) *54650, and Statham v. Ferguson's Admr., 25 Gratt. (66 Va.) 28, the wills were perfectly valid, but failed of probate for defective witnessing. Thus the parties were relegated to their rights by descent and the wills answered every requirement of law except as to technical form of execution. There being no doubt about the will of the testator (only the fact that the subscribing witnesses were not present at the same time, prevented its probate), the courts look with favor on the heirs and distributees by contract giving effect to such will. In the instant case none of the relatives had any rights to compromise or surrender except Mrs. Gregory and Atkins. Their pretense of claim was based on the hearsay testimony of five persons that an old man in extremis desired his will (which had been in existence and unchanged for eleven years) revoked by parol, and that he would not rest in his grave unless his sister, Mrs. Gregory, who was only life tenant as to the residue of his estate, carried out his wishes as to the disposition of the same. It is plain that this was no family settlement which the courts favor, but an effort to revoke a will by parol, and distribute a large estate according to the recollection of three ignorant servants, corroborated in the main by the recollection of Mr. Watkins, and the memoranda of Dr. Tompkins. The contract does indirectly what the law forbids, and the initial question is, should not sound public policy forbid its enforcement, or at least east upon the beneficiaries the burden of showing its-fairness and justice.
The learned chancellor of the trial court based his opinion in rescinding this contract upon the second form or class of fraud in equity, as laid down by Lord Hardwicke in the leading and celebrated case of Chesterfield v. Janssen, 2 Ves. Sen. 125, 1 Eq. Lead. *547Cas. (4th Am. Ed.) 773, as follows: “Secondly, it (fraud) may be apparent from the intrinsic nature and subject of the bargain itself, such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other, which are unequitable and unconscientious bargains.” Counsel for appellant claim the doctrine and classification of fraud as laid down in Chesterfield v. Janssen, supra, have never been the law in Virginia and cite as authority for that contention Cribbens v. Markwood, 13 Gratt. (54 Va.) 495, 67 Am. Dec. 775. The public policy of England forbade the sale of expectancies and the case of Cribbens v. Markwood decided that the English doctrine in relation to the sale of expectant interests, so far as it relates to vested interests, not to be law in this State. The classes and division of fraud based upon their intrinsic qualities, as enunciated by Lord Hardwicke in the case of Chesterfield v. Janssen, instead of being annulled by statute has been followed by nearly all subsequent writers and judges. Pomeroy’s Equity Jurisprudence, 874.
Under the classification of “constructive fraud apparent from the intrinsic nature and subject of the transaction itself,” the principal evidence of fraud is “inadequacy of consideration.” This relates to contracts where there is a subject matter transferred or dealt with and price paid or to be paid. Conceding, as claimed by the appellant, that the contract in the instant case is the transfer of a subject for a price paid. In some of the earlier decisions mere inadequacy either in price or value of the subject was held sufficient hardship for relief in equity. Seymour v. Delaney, 6 Johns. Chan. 222, 224, 225. “The doctrine, however, is now settled that mere inadequacy — that is, inequality in *548value between the subject matter and the price — is not a ground for refusing the remedy of specific performance. In order to be a defense tbe inadequacy must either be accompanied by other inequitable incidents, or must be so gross as to show fraud.” Pomeroy’s Equity Jurisprudence, 926.
The above is the law in Virginia as reviewed in Hale v. Wilkinson, 21 Gratt. (62 Va.) 75-82. But Lord Eldon, who was one of the first chancellors to introduce the rule in regard to mere inadequacy of price into the law, held in Coles v. Trecothich, 9 Ves. 246, that gross inadequacy of price was conclusive evidence of fraud. He said, on page 246: “Unless the inadequacy of price is such as shocks the conscience and amounts in itself to conclusive and decisive evidence of fraud in the transaction, it is not itself a sufficient ground for refusing a specific performance.” In Virginia gross inadequacy of price is sufficient ground for relief in equity. Bresee v. Bradfield, 99 Va. 331; Mayo v. Carrington, 19 Gratt. (60 Va.) 74-107.
Lord Thurlow, in Gwynne v. Heaton, 1 Bro. Ch. 1, 9, describes gross inadequacy as follows: “An inequality so strong, gross and manifest, that it must be impossible to state it to a man of common sense without producing exclamation at the inequality.”
Whether the contract was such that it was unequitable and unconscientious, such as the parties should not have accepted, does not depend on any particular indicia of fraud, but the chancellor may consider the relations of the parties, the age and inexperience of the complainant, the obligations and ties of blood and affection of the beneficiaries, their influence over him, and the result of the transaction, and if the chancellor feels satisfied from all the circumstances that the agreement was unconscionable, he should grant relief.
*549No ease can be found in the annals of equity jurisprudence where a sister and daughter has stripped her mother and young brother of a magnificent estate, and given them a dole, where the court has sustained it. No principle of justice or special pleading can warrant the upholding of this contract.