#### JAMES M. MORGAN AND WIFE against DURANT TILLET AND OTHERS.

There is no remedy in Equity against the heirs at law of one, who has violated his parol agreement to devise to the complainant the land descended.

Cause transferred from the Court of Equity of Camden County.

Joseph Seymour, the first husband of the plaintiff, Mrs. Morgan, devised to her the tract of land in question. After his death, she was married to Isaac Tillet, the father of the defendants, and upon his death she was again married to the plaintiff, James M. Morgan. While the wife of Tillet, she *40joined witb Mm in a deed for tMs land to one Enoeb P. Dailey,, and was privily examined touching her willingness to execute the same; upon which occasion, she declared her entire willingness to do the act, and then again assented to it. Dailey immediately conveyed the premises to the husband. The consideration expressed in both these deeds is $2000, but no money was paid, and the real object was to transfer the land to the husband: the point of controversy between the parties is as to the terms upon which this transfer was made-.

The plaintiffs in their bill say that there was a parol agreement between the husband Tillet -and his wife, that she was to have the land in fee simple in case she was the longest liver: that he was to put the improvements on it which he did, and as a consideration for so doing, was to have the land, in case he survived her, and that such agreement was to be put in writing immediately after the marriage: That after the marriage, her husband assured her that he would fulfil the contract between them by making a will in her favor for the land which she ignorantly supposed was a proper, if not the only way to carry into effect their understanding, but that he had failed to make any will, and the land had descended to his heirs at law, the- defendants.

The answer denies that any such agreement was made, and insists that if any such was made, that the statute was a bar to their suit, and upon this they rely, as if the same had been alleged by way of a plea.

There was replication to the answers: commissions and proofs, and the cause being set for hearing, was sent to this Court.

/Smith for Plaintiff.

Heath for defendant

PnARSON, J.

"Whether the parol agreement to reconvey the land, so that it should vest in Mrs. Tillet, (now Mrs. Morgan,) if she should survive her husband (Tillet) which is alleged in the bill, could be decreed to be specifically performed, if it ha<3 been fully proved or admitted, notwithstanding the statute of frauds, is a question that we are not at liberty to ¡decide. .

The agreement alleged is not proven. We are inclined to *41think, from tbe proof, that Tillet was not willing to make tbe expensive repairs and improvements, that his wife desired to be made upon tbe land, and that were necessary in order to make it an elegant and comfortable residence, unless tbe title was vested in him, and that Mrs. Tillet consented to pass tbe title to him in consideration of bis making tbe repairs and improvements, with an understanding, that be was to make a will devising tbe property to her in tbe event of her being tbe longest liver. Tillet, it would seem, violated bis promise and neglected to make a will. There is no power in this Court to make one for him, or to require bis heirs to do by deed, what be bad promised to do by will: because, tbe very essence of a will is that it is “ ambulatory a will made to-day may be revoked to-morrow: for this-reason, tbe idea of decreeing a specific performance of an agreemeat to make a will is not to be met with in any of tbe books; and tbe plaintiff’s vainly endeavor to avoid the question by alleging that Tillet bad agreed to convey. "Whereas tbe proof is, be bad agreed to make bis will and give tbe land to bis wife if she should survive him.

Pjeb OuRiam. Bill dismissed.