RodmáN, J.
By will proved in 1863, one Mary Yaden gave to her executors certain personal chattels consisting of horses, furniture,
&c.,
of small value, and also, all her money and notes, in trust for the support of Willis Pace, and of the plaintiff, Susan, his wife, for their lives and the life of the survivor. Willis Pace died soon thereafter, leaving the plaintiff surviving. The will continues: “And none of the above named'money and property, to be subject to the disposal or debts of the said Willis or Susan Pace, and at the death of the said Willis and Susan, or the survivor of them, my will and desire is, (an immaterial repetition of words is he2’e omitted,) that his six daughters, viz: Martha, &c., receive equal divfi dend, share and share alike, from my executor, all the money and notes then in hand to them and their heirs forever.” The will then proceeds to give to the said daughters, and to the three sons of Willis, the horses, furniture, &c., after the death of Susan.
The executors appointed in the will renounced, and Presley P. Pace, the defendant, was appointed administrator with the
will annexed, in 1866 or 1867, and took possession of the property of the testatrix. The estate now in his hands consists mostly, or wholly, of a note for $750 or thereabouts. The complaint sets forth the above facts and prays for an account,
&o.
The defendant resists an account, on the ground that the plaintiff released and assigned all her estate and interest under the will, (except in certain lands mentioned in it,) to the legatees in remainder. The answer, however, does not allege that there was any consideration for the release or assignment, or that they have ever made any claim under it.
The supposed assignment had been lost; but a jury found that such a writing had been executed. The right of the plaintiff to recover, turns on the validity and effect of this instrument.
Before considering that question, it will be convenient to dispose of a question of evidence which was raised upon the trial.
1. Badger and Fowle, two members of the bar to whom the assignment had been exhibited for the purpose of obtaining their opinions as to its effect, w'ere permitted to testify against objection, that they did not remember whether or not the lost instrument had a seal, but they severally advised that it was valid, and thought they would not have given such advice, unless it had been given under seal. The jury found that the instrument was under seal. We do not know of any law which requires an assignment or surrender of an equitable estate in personal chattels, or in a eln>«e in action, to be under seal. A seal to a contract at law, dispeuses with proof of a consideration, but in equity it has no such effect.
The fact which the evidence tended to prove was an immaterial one, and as its admission could not prejudice the plaintiff, she is not entitled to a new trial whether it was in law competent or not.
2. The prohibition in the will of the disposal of their estates in the property, by, the legatees for life, was void. It is settled
that by no forra of words, can property be given to a man, or to another in trust for him, so that he shall not have a right to dispose of his estate in it, unless there be in the instrument of gift, a provision that upon an attempted alienation, it shall go over to some third person.
Dick
v. Pitchford, 1 D & B. Eq., 480.
Mebane
v.
Mebane,
4 Ire. Eq., 131.
The plaintiff had the right to surrender or assign her estate.
3. The only remaining question is, did she do so by a valid and effectual conveyance? No doubt a person by a transaction
inter vivos
may
give
to another an equitable, as well as a legal estate, in property, without consideration, and if the conveyance be
executed,
so as to pass the estate, a Court of equity will support the title of the volunteer, and in the absence of fraud of imposition, will not permit the donor to revoke it, unless there be a clause reserving that right. 1 Story, Eq. Jur., s. 433, note 6, Id. s. 706, a. 973.
Kekewick
v.
Manning,
1 De G. M.
&
G. 176, and cases cited in note.
We need not consider whether if a gift was intended in the present case it was so executed as to pass an absolute estate to the donors, because it is clear that a
gift
was not intended. The plaintiff certainly supposed that she was to receive a consideration, and that it was-to her interest to execute the instrument. On this point the case reads as follows :
“
It was in evidence, that the executor under the will having renounced,. P. P. Pace, had agreed to act as agent to-settle the estate, and that an agreement was drawn up and signed by all the parties,, authorizing (him) to do so, and that on the day of sale, he refused to act further, unless the plaintiff signed the release, and that all the parties signed the agreement above mentioned, and that the paper was read over to plaintiff and she assented' thereto, having previously executed and delivered it.
It was in evidence, that W. W. Pace had agreed to support
her,
provided she execxited the release?
There was no issue submitted to the jury as to whether the plaintiff received a valuable consideration. / The counsel for the plaintiff', however, requested the Court to instruct the jury, that the assignment was not
good unless founded on a valuable consideration, which his Honor refused to do: probably supposing, that a seal dispensed with the necessity of proof of a consideration. In this his Honor clearly erred.
Was there a sufficient consideration ? The consideration divides itself into two parts:
1. The agreement by the defendant, P. P. Pace, to settle the estate as agent of the legatees, without taking out administration, which he agreed to do if plaintiff would execute the assignment. It was discovered afterwards, however, that he could not legally do this. Revised Code, chap. 46, sec. 14. It was contended for the plaintiff, that this part of the consideration was illegal and against public policy, and that where
a part of the consideration
is illegal, the contract founded thereon is void. Without considering whether that admitted doctrine would apply, when the intent to do the illegal act was never acted on, and was abandoned : it will suffice for the present purpose to say, that the agreement constituted no consideration for the assignment. It could not legally be, and was not in fact, acted on.
2. The second part of the supposed consideration was an agreement by W. W. Pace to support the plaintiff, provided she executed the release. Not only is this supposed agreement not stated in the answer, but that pleading does not set forth that there was any consideration for the release at all, and as a defence it is defective in that respect.
As the evidence respecting the promise to support the plaintiff received without objection, we will consider it as properly received. As stated in the evidence, it is extremely indefinite.
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RodmáN, J.
By will proved in 1863, one Mary Yaden gave to her executors certain personal chattels consisting of horses, furniture,
&c.,
of small value, and also, all her money and notes, in trust for the support of Willis Pace, and of the plaintiff, Susan, his wife, for their lives and the life of the survivor. Willis Pace died soon thereafter, leaving the plaintiff surviving. The will continues: “And none of the above named'money and property, to be subject to the disposal or debts of the said Willis or Susan Pace, and at the death of the said Willis and Susan, or the survivor of them, my will and desire is, (an immaterial repetition of words is he2’e omitted,) that his six daughters, viz: Martha, &c., receive equal divfi dend, share and share alike, from my executor, all the money and notes then in hand to them and their heirs forever.” The will then proceeds to give to the said daughters, and to the three sons of Willis, the horses, furniture, &c., after the death of Susan.
The executors appointed in the will renounced, and Presley P. Pace, the defendant, was appointed administrator with the
will annexed, in 1866 or 1867, and took possession of the property of the testatrix. The estate now in his hands consists mostly, or wholly, of a note for $750 or thereabouts. The complaint sets forth the above facts and prays for an account,
&o.
The defendant resists an account, on the ground that the plaintiff released and assigned all her estate and interest under the will, (except in certain lands mentioned in it,) to the legatees in remainder. The answer, however, does not allege that there was any consideration for the release or assignment, or that they have ever made any claim under it.
The supposed assignment had been lost; but a jury found that such a writing had been executed. The right of the plaintiff to recover, turns on the validity and effect of this instrument.
Before considering that question, it will be convenient to dispose of a question of evidence which was raised upon the trial.
1. Badger and Fowle, two members of the bar to whom the assignment had been exhibited for the purpose of obtaining their opinions as to its effect, w'ere permitted to testify against objection, that they did not remember whether or not the lost instrument had a seal, but they severally advised that it was valid, and thought they would not have given such advice, unless it had been given under seal. The jury found that the instrument was under seal. We do not know of any law which requires an assignment or surrender of an equitable estate in personal chattels, or in a eln>«e in action, to be under seal. A seal to a contract at law, dispeuses with proof of a consideration, but in equity it has no such effect.
The fact which the evidence tended to prove was an immaterial one, and as its admission could not prejudice the plaintiff, she is not entitled to a new trial whether it was in law competent or not.
2. The prohibition in the will of the disposal of their estates in the property, by, the legatees for life, was void. It is settled
that by no forra of words, can property be given to a man, or to another in trust for him, so that he shall not have a right to dispose of his estate in it, unless there be in the instrument of gift, a provision that upon an attempted alienation, it shall go over to some third person.
Dick
v. Pitchford, 1 D & B. Eq., 480.
Mebane
v.
Mebane,
4 Ire. Eq., 131.
The plaintiff had the right to surrender or assign her estate.
3. The only remaining question is, did she do so by a valid and effectual conveyance? No doubt a person by a transaction
inter vivos
may
give
to another an equitable, as well as a legal estate, in property, without consideration, and if the conveyance be
executed,
so as to pass the estate, a Court of equity will support the title of the volunteer, and in the absence of fraud of imposition, will not permit the donor to revoke it, unless there be a clause reserving that right. 1 Story, Eq. Jur., s. 433, note 6, Id. s. 706, a. 973.
Kekewick
v.
Manning,
1 De G. M.
&
G. 176, and cases cited in note.
We need not consider whether if a gift was intended in the present case it was so executed as to pass an absolute estate to the donors, because it is clear that a
gift
was not intended. The plaintiff certainly supposed that she was to receive a consideration, and that it was-to her interest to execute the instrument. On this point the case reads as follows :
“
It was in evidence, that the executor under the will having renounced,. P. P. Pace, had agreed to act as agent to-settle the estate, and that an agreement was drawn up and signed by all the parties,, authorizing (him) to do so, and that on the day of sale, he refused to act further, unless the plaintiff signed the release, and that all the parties signed the agreement above mentioned, and that the paper was read over to plaintiff and she assented' thereto, having previously executed and delivered it.
It was in evidence, that W. W. Pace had agreed to support
her,
provided she execxited the release?
There was no issue submitted to the jury as to whether the plaintiff received a valuable consideration. / The counsel for the plaintiff', however, requested the Court to instruct the jury, that the assignment was not
good unless founded on a valuable consideration, which his Honor refused to do: probably supposing, that a seal dispensed with the necessity of proof of a consideration. In this his Honor clearly erred.
Was there a sufficient consideration ? The consideration divides itself into two parts:
1. The agreement by the defendant, P. P. Pace, to settle the estate as agent of the legatees, without taking out administration, which he agreed to do if plaintiff would execute the assignment. It was discovered afterwards, however, that he could not legally do this. Revised Code, chap. 46, sec. 14. It was contended for the plaintiff, that this part of the consideration was illegal and against public policy, and that where
a part of the consideration
is illegal, the contract founded thereon is void. Without considering whether that admitted doctrine would apply, when the intent to do the illegal act was never acted on, and was abandoned : it will suffice for the present purpose to say, that the agreement constituted no consideration for the assignment. It could not legally be, and was not in fact, acted on.
2. The second part of the supposed consideration was an agreement by W. W. Pace to support the plaintiff, provided she executed the release. Not only is this supposed agreement not stated in the answer, but that pleading does not set forth that there was any consideration for the release at all, and as a defence it is defective in that respect.
As the evidence respecting the promise to support the plaintiff received without objection, we will consider it as properly received. As stated in the evidence, it is extremely indefinite. Neither the time when, nor the circumstances under which, it was made appear with particularity. It is not
expressly
said that it was made directly to the plaintiff, or so as to bind W. W. Pace (who is no party to this proceeding). It does not appear for what length of time the support was to be given ; or of what it was to consist — whether it was to include the usual comforts, or only the barest necessaries of life ; or that it was
ever acted on, or that its performance was ever demanded or tendered.
If there be a valuable consideration for a contract, a Court of Equity will not refuse to enforce it merely on the ground that the consideration was inadequate, unless the inadequacy be so gross as to prove that fact alone or coupled with the other circumstances of the case, fraud and imposition. But still there must be a consideration substantially of value. Taking the promise in this ease, to have been in the words stated in evidence, and giving the defendant the benefit of the fact of such promise as if it had been pleaded and found by the jury, we are of opinion that under the circumstances it was too vague and indefinite to amount to a substantial consideration. There are cases, no doubt, in which the uncertainty of the words of such a promise standing by themselves, may be supplied from the relations of the parties, or the circumstances under which it was made. They may sometimes fairly be construed as a promise to supporrt in the customary manner of living. But no circumstances appear here, which make that meaning the necessary one. It is difficult to conceive of any reason to induce W. W. Pace to promise to the plaintiff a support costing more than the interest of the fund she had in the estate, and it is equally difficult to conceive of any reason on him to make, or on her to receive the promise, if the support was to cost the equal of the interest. We can make the conduct of the parties intelligible, only by supposing that the ideas of both were that the support should be of
less
value than the interest of the fund, and • that the deficiency of the' consideration was to be made up by P. P. Pace, settling the estate as agent of the parties without an administration. In that case clearly the release wa3 without a substantial consideration, and although no actual fraud is to be imputed to any one, yet it was executed under such circumstances of surprise and mistake that it ought not to be enforced.
Pee CuRIAm.
The judgment below is reversed, and it is
declared that the plaintiff is entitled to the amount demanded, and the case is remanded in order that it may be taken. The 1 plaintiff will recover costs in this Court.
Let this opinion be certified.