BALDWIN, Circuit Justice.
The alleged contract between Mr. Tilghman, and Mr. Chew the defendant, consists of two parts; 1. The conversation between Mr. Tilgnman and Mr. Chew, Sen., communicated to Mr. Chew, Jun.; 2. The letter of Mr. Tilghman of the 10th of July, 1810, assented to by both the Messrs. Chew. Taking the conversation as a verbal agreement, it was a mutual promise that each should provide for his own child a portion of 30,000 dollars; no fund was designated out of which the portions were to be raised on either side, except as to 5000 dollars by Mr. Chew, by conveying a farm in Jersey to his son; neither party assumed any obligation to provide for the child of the other, referred to any provision for the issue of the marriage, or any limitation or mode of settlement of the respective portions. The object seems to have been a personal provision for the parties to the marriage, to be made separately by their parents, each taking on himself the raising their portions for their own use, neither promised that the child of the other should have any interest in his own child’s portion during the marriage, or after the death of either. The promise of Mr. Chew, Sen. to make the same provision for the issue after his son’s death, as he was to make for his son in his lifetime, formed no part of the conversation before the marriage, but is admitted to have been made afterwards; that promise however did not extend to Mrs. Chew if she survived her husband, and as the Jersey farm was to be conveyed to Mr. Chew, Jun. in fee, she could have only her dower out of it. The declaration by Mr. Chew, Sen. of his intention to make the same provision for his son’s family by his will, as he would have made for his son if living, was also after the marriage, and in consideration of the agreement of the 10th of July; so that previous to that day, there is no evidence that Mr. Tilgh-man had made any promise or agreement to give the defendant any interest in his wife’s portion, or to so settle it on her as to give him any control over it. The extent of any obligation assumed, was to give or make up to his daughter the stipulated portion; in law the defendant was no party to this promise so as to sustain an action for it, but even if he had any legal right to it. a court of law must award it to him absolutely, having no power to compel him to settle it on his wife or children. This promise therefore could create no legal debt due to defendant or give him any claim to damages for its breach at law, it must be treated as other contracts for the payment of money or the performance of collateral acts. A plaintiff must show his interest in the act to be done, its extent, the breach of the contract, with the-amount of damages he has sustained thereby; these would be insuperable obstacles in the present case (conceding the verbal agreement to be fully proved and clearly broken) to a recovery at law. It is only in a court of equity that all parties in interest could apply for the apportionment of a fund, to which no party had an exclusive right, but even there it would be difficult if not impracticable to give the present defendant any relief. The contract is so vague and indefinite in most of its important parts, that if the decision in this case turned upon it, “this defect in the proof would be fatal to the claim of the defendant.” The contract sought to be enforced onght to be clearly proved, its terms to be precise, so that neither party could reasonably misunderstand them, if it is vague, uncertain, or the evidence insufficient, a court of equity will leave the party to his remedy at law. Colson v. Thompson, 2 Wheat. [15 U. S.] 341.
Contracts in consideration and contemplation of marriage are binding in law and equity, yet they must have those attributes which will alone induce courts of equity to decree a performance variant from its terms. In this case the promise of Mr. Tilghman was not made to meet any stipulation-made by Mr. Chew in favour of the intended wife, each parent was free to have made a settlement on his own child of their respective [1254]*1254portions 'with a reversion to themselves and their own right heirs, which equity would not disturb in the absence of any agreement to the contrary. Marriage agreements are construed in equity most liberally in favour of the issue of the marriage, who are considered as purchasers incapable of taking care of themselves. Equity will protect them under marriage articles limiting an estate tail to the parties to the marriage, by decreeing to them an estate for life only, with a remainder to the issue in strict settlement. 2 Vern. 658; 1 Ves. Sr. 239; 2 Atk 40; 2 Johns. Cas. 222; 1 Desaus, 443. But this rule does not apply to the parties, unless by the terms or manifest intention of the agreement they appear to have an interest in the fund to be provided. In this case there seems to me to be no such agreement or intention, but if Mr. Chew, Sen. had promised to give to his intended daughter-in-law a life estate' in his son’s portion if she survived him, there would have been powerful reasons for holding Mr. Tilghman bound to make an equivalent provision for his intended son-in-law. This would make the promise mutual, whereas all mutuality would be wanting by holding him so bound by the contract as stated and proved. It is not in equity a necessary incident to a marriage contract that the husband should have any interest in the wife’s portion, when she has none in his, or that the survivor should have a life estate in the other’s portion; this will not be decreed unless agreed upon, or necessary to carry the contract into effect on principles of justice and equity. In my opinion this contract created no debt or duty on the part of Mr. Tilghman which can be enforced in equity, for the want of precision in its terms, and the want of a promise by Mr. Tilghman to make a personal provision for the defendant, in both which respects the contract is defective.
The next inquiry is, whether the verbal contract formed a part of the written one of 10th July, or whether the latter is to be taken as the final agreement of the parties, complete in all its stipulations according to their intention therein expressed, and a substitute for the verbal one as contended by complainants, releasing Mr. Tilghman from all personal liability. On the other hand, the defendant contends, that there was an existing liability in Mr. Tilghman, continuing after the 10th of July, until that agreement was performed, the risk of which was assumed by him, who remained liable under the first contract, when the second failed by his daughter’s death.
It is difficult to account for the written proposition of the defendant which led to the contract of July, if. there had been a subsisting contract made, definite and precise in its terms; the subject matter was not a provision to be made by Mr. Tilghman for his daughter or her intended husband, or a conveyance of his property for the purpose, but her real estate which was to provide the marriage portion. On this subject the verbal contract was silent, as well as on the nature of the limitations. Had the defendant’s proposition been accepted, he would have been without any interest in his wife’s portion, in the event which has happened, which is inconsistent with an existing obligation in Mr. Tilghman to give it to him absolutely or for life, or the existence of a contract so definite as to be visible or tangible in a court of equity, as to give him any right. It remained then for the parties to make a contract specifying the fund for raising the portion, with such a limitation as would give the defendant an interest in it; this was intended to be done by the agreement- of July, which is full and complete in all its parts; referring to no previous contract to be modified, it fully expresses the intention of the patties. So far as it accords with the previous inchoate contract, it reduces it to writing, which, in the absence of fraud, mistake, ignorance or latent ambiguity, cannot be varied, impaired or explained by parol evidence (2 Call, 12; 4 Desaus. 211; 3 Hen. & M. 416, 417), or stating circumstances previously to the writing ([Hunt v. Rousmanier] 8 Wheat. [21 U. S.] 208, 211). If it differs from the terms of the conversation, the writing is a declaration of a change of the original intentions and an agreement to alter and rescind them. 1 Fonbl. Eq. 173, 174; Talb. 20; Amb. 317.
This conversation between Mr. Tilghman and Mr. Chew, Sen. can be viewed only as leading to or forming the basis of the writing, or as a distinct substantive contract between the parties, put into writing as marriage articles; in either case a decree must be made conformably to the construction of the written agreement, or it must be reformed according to the rules of equity, by something which more correctly indicates the intention of the parties than the agreement itself. Otherwise it must be taken to be the only and very contract subsisting between them. Any contract, however solemn, may be reformed by matter of higher consideration than the contract, but this power of reformation is limited; there must be something definite by which to reform a contract, it must refer to or recite some other agreement on which it is predicated, which it was intended to carry into effect, to which it must conform, and by which it must be controlled, construed or regulated.
Articles in consideration of and previous to marriage, are considered in equity as the heads of an agreement for a valuable consideration (2 Atk. 40; 3 Hen. & M. 406); they will be so construed as to carry into effect the intention of the parties for the benefit of the issue for whom they are purchasers (11 Ves. 228; 2 Desaus. 126; 1 Desaus. 443; 3 Ves. 245; 18 Ves. 54); any mistakes will be corrected by reforming the article [1255]*1255or settlement. A settlement after marriage, reciting articles before marriage, may be reformed by them; so if it was intended to be pursuant to the articles, any variance between them being presumed to be by accident. Talb. 20, 181; 1 Ves. Sr. 239; 2 P. Wms. 349, 356; 3 Brown, Parl. Cas. 333, 334; 1 P. Wms. 123; Comyn, 417; Amb. 317; 2 Vern. 658; 3 Hen. & M. 408. But the evidence of intention by which to make the reformation must be by a recital, a letter of instructions or declaration of intention, not by conjecture, but in words showing it (1 Ves. Jr. 59, 151; 5 Ves. 597, note, 600; 3 Brown, Ch. 27), otherwise me variance is presumed to be by a new agreement (1 Fonbl. Eq. 173, 174; Talb. 20). The great object of marriage settlements, is to restrain the parties from disposing of the fund to the prejudice of the wife and issue, and it is in their favour and necessarily against the husband, that equity reforms and construes them liberally to embrace the object intended; this will be done in favour of the husband or wife, where they claim in consideration of a settlement made, or to be made by them or their friends, so as to make the contract operate beneficially for the party intended to be benefited by it. 1 Munf. 98. 112, 390. But if the plaintiff in equity has not completed his promised provision for his wife and issue, or if by her death without issue he has suffered no prejudice by what he has done towards its completion, or if by the agreement the portions were to be equal, and the husband has not made up his, equity will leave him to his legal remedy. 2 Freem. 35, 36; 3 Ves. 246.
If an instrument professing or intended to carry an agreement into effect, is so drawn by mistake as not to effect the object, it will be reformed in conformity therewith; the instrument being insufficient for the purpose intended, the agreement is considered unex-ecuted, and the delinquent party will be held .to its performance. If however the parties have deliberately agreed on an instrument to effect their intention, which meets the views of both, it becomes incorporated into their agreement, and if not founded in mistake in fact, and is executed in strict conformity with itself, equity will not decree another security, or act as if it had been agreed on or executed. It will compel the execution of agreements fairly made, but will not make them for parties, or decree the execution of any other instrument than the one agreed on. The death of the party who was to execute the instrument which was to give efficacy to the agreement, though it frustrates the intention of the parties by an event not provided for, does not alter the case. Where the parties have on deliberate advice rejected one instrument and adopted another, equity will not decree a different one to be executed, or that to be done which the parties supposed would be effected by the instrument finally agreed upon. Hunt v. Rousmanier, 1 Pet [26 U. S.] 9, 17, 8 Wheat. [21 U. S.) 201, 210.
In the application of these principles to this case, I can perceive no just ground for reforming the agreement of the 10th of July; from its terms it appears to have been the only agreement intended to be carried into effect so it appears to have been considered ■by all parties by their subsequent conduct, and having been deliberately made, must be considered as the only foundation of defendant’s claim. It is so set up in his answer and expressly stated, that though it varied essentially from the verbal contract, it was assented to by all parties, and left with Mr. Tilghman for safe keeping as the contract agreed upon; such is the case presented by the answer, on which the issue is depending on the general replication. This issue is on the facts and case stated in the answer, not on any other matter' which may be offered or given in evidence at the hearing. 4 Madd. 21, 29; [Lenox v. Prout] 3 Wheat [16 U. S.] 527; [Hughes v. Blake] 6 Wheat. [19 U. S.] 468. The opposite party must have notice by the answer of the matters relied on, so as to shape his replication accordingly, and offer countervailing evidence; he is not to be taken .by surprise, or lose the opportunity of asking leave to file a special replication, which cannot be done without leave. [Leeds v. Marine Ins. Co. of Alexandria] 2 Wheat. [15 U. S.] 380; Peirce v. West [Case No. 10,909]. The same rule applies to a bill so as to enable a defendant to demur, plead or answer, according to the case stated. 1 Munf. 395 ; 7 Ves. 457; 12 Ves. 79; [Simms v. Guthrie] 9 Cranch [13 U. S.] 25; [Carneal v. Banks] 10 Wheat. [23 U. S.] 188; 6 Johns. Cas. 349. A party who sets up a right against another, must be confined to the allegation of his bill or answer, the court will permit no evidence of any other matter than such as tends to prove those allegations, or decree on any thing not put in issue or admitted by the pleadings. [Fullerton v. Bank of [U. S.] 1 Pet. [26 U. S.] 612; Thompson v. Tod [Case No. 13,978]; [Harding v. Handy], 11 Wheat. [24 U. S.] 103; 6 Johns. 559, 563. The defendant’s counsel contend for a broader rule in case of an answer than a bill, where the answer is merely a defence against a right asserted by the plaintiff, as in a tithe cause, where it was held sufficient to set up a composition or commutation generally as a defence. Anstr. 404, 491. Cases of this description are exceptions to the general rule, on account of the difficulty of definite proof, but where a defendant in his answer, goes beyond mere matter of defence, and sets up an affirmative claim, he becomes a plaintiff and must make out his case by proper allegations and corresponding proofs. Such is the present case, both parties are claimants of the same fund, one to recover, the other to retain; the only ground of denial of the plaintiff’s claim, is an assertion of an afirma-[1256]*1256tive claim by defendant in virtue of a contract set out in the answer, both parties being actors in their own adverse right, we must decide as if the defendant’s case was •in a bill filed by himself.
Taking then the agreement of the 10th of July as the contract relied on for the foundation of the defendant’s claim, it will be considered according to the intention of the parties, without regard to form or manner of expressing it, as a contract or articles of marriage formally executed, as a valid binding agreement or covenant to be executed according to the principles of equity, regarding only its substance. The marriage having been solemnized, is a consideration which entitles the defendant to the performance of the contract in good faith, for which the estate of Mr. Tilghman is answerable, if its breach has been by his default, or its non performance has been owing to the occurrence of any event, against which a court of equity can properly consider him as having undertaken to provide.
It was stipulated that so much of the daughter’s estate be sold, after she would arrive at twenty-one, as would raise 30,000 dollars, which would be in nine months after the date of the agreement; no time was limited in which it was to be done after she arrived at twenty-one, the sale could not be before, for although Mr. Tilghman by the act of 1799 could sell, he was bound to appropriate the proceeds in the manner pointed out by that law. The postponement of the sale was from necessity, not for. the convenience of Mr. Tilghman, the annual value of the estate was trifling, neither party by the terms of the agreement assumed the risk of the settlement being defeated by the death of the daughter, nor is there any principle of equity which would make Mr. Tilghman personally answerable for the consequences. That does not seem to have been contemplated at the time, it was a proper subject for a provision, had any been intended, the object was a provision for the marriage, this agreement was agreed on for security of its performance, deliberately made and accepted as satisfactory. Had it been intended to substitute the estate of Mr. Tilghman as the fund in place of the daughter’s estate in the event which has happened, it would have been so stipulated, or such intention have been manifested; had it been intended to bind the estate of the wife, she would have been a party. The defendant’s proposals immediately preceding the contract were, that if no issue survived her, he would renounce the tenancy by the curtesy, and all legal right to his wife’s personal estate, the same provision was to take effect on the subsequent death of the issue who should survive her. This proposal met the very case which has occurred, and negatives the belief, that in the same event, Mr. Tilghman was personally to be bound, or that a stipulation to that effect was left out of the agreement by accident or mistake; it must therefore be taken as the only security required, the insufficiency of which by the death of Mrs. Chew affords no ground for our interference. Hunt v. Rousmanier [supra], is authoritative on this point.
As the agreement could not be performed before the arrival of Mrs. Chew to twenty-one, no cause of action could accrue till that event, it happened on the 19th of April, 1817, she survived it two months, so that there was time to have completed the settlement, yet though arrangements were made as to sales of her property by Mr. Tilghman, nothing was done in relation to the settlement, or any offer or demand made to execute'it. Its completion required the concurrent act of all parties, of Mr. Tilghman to release his estate by the curtesy, of Mr. Chew and wife to convey the reversion; the acts must be simultaneous, or the conveyance of the fee must precede the release of the life estate, and the latter, if made to take effect immediately by a separate deed, would have left Mr. Chew and wife the sole power of disposing the whole estate, with no other control than by a court of equity in virtue of the marriage articles. Mrs. Chew was then under the legal control of her husband, her deed was indispensable, it must be her voluntary act, Mr. Tilghman could exercise no control over her, nor could he by his own act complete the settlement. The important question then arises, on whom does the law throw the duty of doing, or offering to do the acts necessary to performance, and what is such default in either party, as subjects him to a debt or damages by non performance, without request by the other, when the contract fixes no time for performance?
An obligation to pay money without naming the time of payment, creates a debt due presently on demand; if for the performance of a transitory act, it must be done in a convenient time without request, when the concurrence of the obligee is not necessary; if it is necessary, the obligee must hasten the performance by a request, or the obligor may take his lifetime. He shall also have a reasonable time after a request, and the obligee shall name a time for performance, as the making a feoffment. If the condition be to infeoff a stranger, the obligor shall require him to name the time and place, and do it in convenient time, unless the act inquires the concurrence of the obligee, or of the obligee and stranger, in which case the obligor does not take on himself for the obligee who is party to the deed, as he does in the case of a stranger. 6 Coke, 31; 2 Coke, 79; Co. Litt. 208, 219; Cro. Eliz. 798; 1 Rolle. Abr. 436, pl. 1; 1 Brown, Ch. 55. In eases of forfeiture, the party is allowed his lifetime to perform the act. 1 Call, 8S, 89. The party who is to have the benefit of the act may do it when he pleases. 3 Day, Com. Dig. 103, G, 3, pl. 16. mere prompt performance of the act is necessary to give the party its benefits, or its immedi-[1257]*1257a.te fruition was the motive for the contract, -it must be done in a reasonable time. Co. Litt. 208; 2 Coke, 75, 78; Wing. Max. 403, 464, pl. 31; 5 Serg. & R. 383. If to be done on demand, a reasonable time is allowed. 1 Rolle, Abr. 443, 449; 3 Day, Com. Dig. 104. If the acts to be done are mutual or concur- • rent, the party who sues must aver and prove performance on his part, or an offer and readiness to do so. 2 Saund. 352, note; Doug. 091; 11 Serg. & R. 200, 352; 12 Johns. 212. Acts to be done by both parties at the same time, are deemed mutual and concurrent, though stipulated by different instruments they are one contract, one is the consideration for the other. [Morgan v. Morgan] 2 Wheat. [15 U. S.] 299; [Goldsborough v. Orr] 8 Wheat. [21 U. S.] 224. A plaintiff in equity must aver and prove the performance of those acts, which were the consideration of the contract to be enforced. [Colson v. Thompson] 2 Wheat. [15 U. S.] 344. If the promise is to an intended son-in-law that the father will make for his intended wife the same provision as he had done for his other children, the plaintiff must aver and prove what that provision was. 1 Call, 84, 89. Taking this contract then according to its terms, there was no legal obligation on Mr. Tilghman to be the first to move towards its completion, he was in no default without a request by the defendant, nor is there any case made out for equity to interfere, to carry into effect the intention of the parties, to correct any mistakes or cure the effects of any Accident.
A different view of the case might be necessary, if the answer could be considered as evidence, so as to put the plaintiffs to disprove the matters set up in support of the defendant’s claim, in the same manner as he is bound to do in relation to the denial of the plaintiff’s right, according to the rules of equity in ordinary cases. The defendant is not in this position, in his answer he admits the receipt of money as executor, by which is bound to the extent of the charges against him; if in his answer he had averred the simultaneous payment of the sum so admitted, the whole must be taken as evidence, so as to put the plaintiff to disprove the payment. But if the payment or discharge is alleged at a different time from the receipt, or by a distinct transaction, the answer will be taken as an admission of the receipt, but not as evidence of the payment; so where the answer sets up an affirmative right or claim, as a bar to an account, or to retain the money in the hands of the defendant, he must establish it independently of his oath; so where he in his answer alleges any distinct independent fact as a bar to plaintiff’s claim. 6 Johns. 559; 2 Johns. Cas. 87, 90; Gilb. Ev. 45; 4 Brown, Ch. 75; 7 Ves. 404, 587; 13 Ves. 53. 54; Amb. 589; 2 Madd. 445 ; 2 Eq. Cas. Abr. 247, 248; Kohne v. Ins. Co. of North America [Case No. 7,921]; 1 Munf. 395; 4 Hen. & M. 511; 1 Ves. Jr. 546. So of matter of avoidance set up by plea. Gernon v. Boecaline [Case No. 5,367]; 1 Johns. 590; 14 Johns. 74; 17 Johns. 367. An answer is no evidence as to matter not necessarily drawn out by the bill, or not directly charged, if not inquired of or forming part of the discovery sought; so where the fact inquired into is immaterial, and the answer is a departure from the question. 14 Johns. 63, 74; 1 Munf. 396, 397; 10 Johns. 544; [Leeds v. Marine Ins. Co. of Alexandria] 2 Wheat. [15 U. S.] 383; [Lenox v. Prout] 3 Wheat. [16 U. S.] 527; [Hughes v. Blake] 6 Wheat. [19 U. S.] 468; 1 Johns. Cas. 461; 1 Johns. 589, 590.
On these well established principles, I have excluded from my consideration all the allegations of the answer to which they apply, and being clearly of opinion that the defendant has not made out his claim on the merits, have not examined into the effect of the lapse of time, or the staleness of the demand. It is proper however to remark, that I adhere to the rule laid down in Baker v. Biddle [Case No. 7G4], and had this case required its application, it might have had a powerful if not a conclusive effect.
There must be a decree to account.
HOPKINSON, District Judge.
A primary, and certainly the most important part of the discussion at the bar, has been upon the question, what was the contract of the parties? Until this is settled it would be an idle waste of time to inquire into the alleged violations. I shall therefore first direct my attention to that question; and it seems to me that if we trace this marriage negotiation from its commencement to its termination, we shall not be at a loss to discover the intention of the parties in its progress and conclusion. Legal formalities were not regarded, for the whole transaction was governed by a spirit of liberality on both sides, and conducted with that mutual confidence which the situation of the persons concerned in it, and their long and ultimate acquaintance entirely warranted.
The pecuniary arrangements for this marriage began in the conversation between William Tilghman and Benjamin Chew the elder, the precise date of which is not fixed, but we may assume that it was certainly antecedent to the proposals made by William Tilghman and accepted by the younger Mr. Chew. It has been so understood in the argument on both sides, nor have we clear and certain evidence of the agreement which is said to have resulted from that conversation. The respondent, Mr. Chew, in his answer, states that the agreement was, that his father should give him land worth 5000 dollars, and allow him annually the interest of 25,000 dollars, and that Mr. Tilghman should give his daughter, for her advancement, 30,000 dollars, and that he promised to do on this occasion whatever the respondent’s father would do, and more. In the deposition of Mr. Chew the elder, he states that he told Mr. Tilghman that he would make out to his son a farm in [1258]*1258New Jersey which he estimated to be worth 6000 dollars, and immediately after the marriage would contribute and pay to his son 1500 dollars annually in addition. That in consequence of this general information Mr. Tilghman stated, without any great difficulty or much consideration, that he would make up the sum of 30,000 dollars for his daughter. If we were called upon to execute this agreement, there would be much difficulty in ascertaining its true meaning in a very important particular, that is, whether Mr. Tilghman intended and promised to give to his daughter the sum of 30,000 dollars from his own property, in addition to the estate which would come into her possession at his death, or whether .the intention only was to anticipate, in this respect, the event of his death and put her then husband at once into the enjoyment of so much of her property. Many considerations would naturally come into the decision of this question, were it necessary to pass a judgment upon the effect of the conversation alluded to; but the subsequent proceedings of the parties relieve us from these difficulties. On the 10th of July, 1816, the day before the marriage was solemnized, Mr. Chew the younger tendered to Mr. Tilghman certain proposals in writing, we have them now before us. As they were not adopted, they are of no further consequence at this time than as they may show that Mr. Chew the younger did not suppose his marriage contract had been finally arranged and settled between his father and Mr. Tilghman, or it is difficult to assign a reason for his making proposals so different from the terms said to have been agreed upon in the conversation between those gentlemen, and without, as far as we know, any consultation or explanation with his father on the subject. The conduct of Mr. Tilghman is equally irreconcilable with an understanding on his part that this affair had been settled already; in which case his reply to these proposals would actually have been that the contract was concluded, and no longer in his power, without the assent of the par-ties concerned, and with whom he had contracted. So far from this was the understanding of Mr. Tilghman, that he did not make the least allusion to what had passed between him and Mr. Chew; but offers other proposals to Mr. Chew instead of his, which Mr. Tilghman thought more favourable to Mr. Chew than his own, and which certainly were so, and which were assented to in writing by Mr. Chew. In the course of this negotiation, in which proposals were made by both of these parties, and a contract finally agreed upon and signed, neither of them made any reference to any antecedent contract, but both seem to have considered the whole subject to be open to them, and entirely at their disposal. The assent of Mr. Chew the elder was not thought necessary, either to annul the former agreement or to give validity to the new one. If, however, that assent were necessary, it was afterwards fully given. Under such circumstances, I cannot but consider the proposals of Mr. Tilghman delivered to Mr. Chew the younger and by him formally assented to in writing, as the only subsisting contract between the parties; as the only contract brought before the court. The respondent has also so considered it, as in his answer this is the contract insisted upon, and for the breach of which he requires redress or compensation. In deciding upon a transaction which took place more than fifteen years-ago, it is very satisfactory to have a written document for our guide, rather than the imperfect recollection of conversations, perhaps not fully and mutually understood at the time, and which now are still more uncertain and obscure. On the 10th day of July, 1816, the day before the celebration of the marriage between Mr. Chew and Miss Tilghman, the father of the lady “presented to Mr. Chew, the respondent, a paper to which the respondent gave his assent in writing.” It is in the form of a letter. We must carefully scan the •language used, as it was written by one who well understood the force of every word contained in it, and was remarkably precise in all matters of business. It is as follows: “As my daughter, to whom you are to be married is under age, I think proper to mention what I propose to be done after she arrives at twenty-one; and from the conversation we have recently had, I make no doubt but it will be perfectly agreeable to you. In order to raise-an income we must resort to the Northampton estate, which, although valuable, is unproductive in its present state. I intend that so much of it shall be sold as will produce 30,000 dollars, of which 5000 dollars may be expended in furniture, and the remaining 25,000 dollars be placed in your hands, to be used by you as you think proper. This capital of 25.000 dollars is to be considered after your death as a debt due from your estate. If your wife survives you, she is to receive it from your estate, and if she dies before you she is to have the right of disposing of it as she pleases, either by last will and testament or any writing in nature thereof, or any other writing executed in the presence of at least two witnesses; but if she should die without making any such disposition, then after your death the said 25,000 dollars are to be distributed according to the law of Pennsylvania, in the same manner as it would be if your wife had died possessed of it and unmarried.” This is the proposal, the agreement, the contract, by whatever name it may be called, on the part of Mr. Tilghman; and it seems to me to be hardly possible to raise a question upon its meaning, or even to turn it into any form of expression which will be more intelligible and explicit; but, if amplified for explanation, does it not amount to this and no more? “You are about to marry my daughter; you will require money to furnish your house and an income to maintain your family. My daughter has a real estate which is unproductive, and therefore will not furnish the [1259]*1259money and income you require, but it is valuable, and if sold and turned into money it will supply your wants. As she is under age, tins cannot be done at present, but I propose tbat after she arrives at twenty-one, so much of her Northampton estate shall be sold as will produce 30,000 dollars, a part of which, 5000 dollars, shall be applied to the purchase of furniture, and the residue be a capital to produce the income you require.” The agreement or proposal goes on to put this capital of 25,000 dollars precisely in the situation, as to Mr. Chew’s rights, and the rights of his intended wife, as it would have been had it remained in real estate. Is there a word here which intimates even a suggestion that in any event these 30,000 dollars, or any part of them, were to be drawn from the estate of Mr. Tilghman? Is there any thing like a promise on his part, that if, from any cause, the fund which was to produce the money should fail, or the execution of his proposal be prevented, he would make it good from his own property; he would be responsible to Mr. ■Chew for his disappointment? I perceive nothing of this sort That which was to be done to carry this arrangement into effect was not to be done by Mr. Tilghman; was not under his control or power. He could have no part or agency in it beyond his interest in the land to be sold as tenant by the curtesy. Indeed it has been argued at the bar, that he was not, upon strict construction of the proposals, bound to release that. I consider his proposal however as binding him to do whatever should be necessary on his part to execute that proposal, and that it would have been a breach of good faith if he had refused to unite in the conveyance of the land he proposed to sell. This is, however, no question here. It is plain that the execution of the plan or proposal agreed upon between Mr. Tilghman and Mr. Chew, depended, for its completion, upon the will and the acts of Mr. Chew and his wife, and it would be very extraordinary if Mr. Tilghman had made it the direct interest of Mr. Chew and his wife, not to execute it, by making himself responsible out of his own estate for its failure; for it is contended, that the undertaking of Mr. Tilgh-man that the 30,000 dollars should be raised and paid to Mr. Chew, was an absolute promise to pay so much money, to be produced by the sale of the Northampton property, if it could or should be so done, but if not so produced, to be paid by Mr. Tilghman from his own resources; in short, that the promise to raise this amount and pay it into the hands of Mr. Chew, was absolute and unconditional. If, when Mrs. Chew arrived at twenty-one, she should refuse to make the conveyance, without which the land could not be sold and the funds could not be raised, Mr. Tilghman was to answer for the default; if by unexpected events the intended sales should become impossible, Mr. Tilghman was to indemnify Mr. Chew for the disappointment. In the first case it is clear, that while, by the refusal of his wife to sell, Mr. Chew would hold the possession of the estate from which the money was to come, he would also be entitled to demand from her father the money. A contract so unreasonable cannot be raised by ingenious arguments and forced constructions; it should appear to be the intention of the parties by explicit and unequivocal terms.
If this be the meaning of the contract, the question occurs, has it been defeated by any thing done or omitted to be done on the part of Mr. Tilghman? Has it failed by his default; or has its non performance arisen from circumstances not under his control, and which on the face of the contract appear to be the contingencies, known to both parties, on which its execution necessarily depended? The contract was dated on the 10th of July, 1816; Mrs. Chew became of age on the 19th of April, 181-7, and died on the 16th of June of the same year; that is, three days short of two months after she attained her full age. It is expressly stated, that whatever was to be done to carry the proposals into execution, was ‘‘to be done after she arrived at twenty-one.” If it could be conceded that the engagement of Mr. Tilghman was absolute, that it should be done after Mrs. Chew arrived at that age, equity would nevertheless give a just and reasonable construction to the words which designate the time of performance; and by looking at what was to be done, ascertain the period of performance, after which a default would be adjudged. The words are, “I think proper to mention what I propose to be done after she arrives at twenty-one.” It can hardly be contended that the responsibility of Mr. Tilghman, whatever it was, that this should be done, attached on the moment his daughter arrived at twenty-one; and if this were not the case, but a reasonable time will be allowed for performance, we must find that reasonable time in the nature of the acts to be performed. Here, too, we have the written document for our information and guide. The money to be raised was to be procured by a resort to the Northampton estate; so much of which was to sold as would produce 30,000 dollars. Can we imagine that it was the expectation or intention of either of these parties that this large sum could be raised from these sales in the short space of two months; and that there was a default in Mr. Tilghman in the performance of his contract because it was not done? Again, it was undoubtedly in the option of Mr. and Mrs. Chew, when «he came of age, to go on to make the sales of land according to the proposal and previous intention, or to retain the land and look to that or to other resources, for the required income. On the part of Mr.-Tilghman, nothing could be done in execution of the proposals, but to release his interest in the land, as tenant by the curtesy, and there is no proof or allegation that he ever refused to do this; that he was ever asked to do it, or that its not having been done form[1260]*1260ed any impediment, delay or disappointment in making the sales, in raising the money or in defeating, in any respect, the execution of the proposals of the 10th of July, 1810. If this be so, the failure in the completion of the design cannot be traced, in the smallest degree, to Mr. Tilghman, by his doing or omitting to do any thing contrary to his proposals, even if they may be considered as a contract. This design was defeated by the afflicting death of one of the parties whose co-operation was indispensable; and it was fully in the view of the respondent, that it could not be executed if that event should happen; and of course the whole arrangement, the whole plan for raising this money, would necessarily fail if this event should ■take place before it could be completed. I may add, that the object and intention of raising it also failed on the depth of Mrs. Chew.
In my opinion, Mr. Chew, the respondent, has not established his right to retain any •part of the funds or estate of his testator, ■William Tilghman, in satisfaction • or on account of any claim or demand he has against •that estate by reason of any contract, matter or thing set forth in his answer.