Court of equity has in any instance enforced a voluntary agreement; at all events no one will contend that any thing short of meritorious consideration will induce the Court to act, and here the plaintiff has not even that ground of equity." Between the two cases of Evelyn v. Templar, and Colman v. Sarrel, it is difficult to discover what the sentiments of Lord Thurlow upon this subject really were.

Lastly, we come to the case of Antrobus v. Smith (d) before Sir W. Grant. Gibbs Crawfurd had written on the back of a receipt, "I hereby assign to my daughter Anna Crawfurd all my shares in the Clyde and Forth Navigation." The father died, and the claimants under the daughter filed a bill against the father's representative to compel a transfer of the shares. It was proved in the cause that the settlor had afterwards changed his. intention. Sir S. Romilly argued, that a provision by a father for his child was not considered a voluntary provision; but Sir W. Grant asked, "Did he recollect any instance in which the party (that is, the settlor himself,) had been compelled to perfect the gift even in favour of a child?" And Sir S. Romilly admitting he was unable to furnish a case, Sir W. Grant proceeded-"Could the settlor himself have been compelled to give effect to the gift by making an assignment? There is no case in which a party has been compelled to perfect a gift, which in the mode of making it he has left imperfect. There is locus pœnitentiæ as long as it is incomplete, and Mr. Crawfurd did repent. Where the gift is not testamentary, but is to operate inter vivos, except in the instance of a defective execution of a power, have execu

(d) 12 Ves. 39.

tors ever been called upon to do any act to perfect it? The ordinary case is that of supplying the surrender of a copyhold. There the Court says, the representative shall not contest the will of the testator in those particularly favoured and excepted cases; his will was, that the estate should pass; he omitted the formality that would make it pass legally, but it shall not fail in favour of those who represent him. But this is not legatory, and therefore I cannot consider this as having the operation that a will would have. I do not see upon principle how the Court could have acted against Mr. Crawfurd himself, nor, considering his declared change of intention, how it can act against the representative, upon the notion of compelling them to comply with his will. It was not his will. No case being cited in which this was ever done, I do not see how I can make the precedent. Unless an instance can be produced, the bill must be dismissed." Thus, the principle of Sir W. Grant's decision was, that, as the Court could not have executed the agreement against the settlor himself, it could not, at least where the settlor in his lifetime had shewn any change of intention, enforce it against the representative. In the subsequent case of Rodgers v. Marshall (e) his Honor seems to have acceded to the doctrine, that, where the settlor has shewn no change of intention, an equitable claim, supported by meritorious consideration, may be established as against the representative. A father had settled copyholds upon his younger son by deed without surrender, and, after his father's death, the son brought his bill against the heir to have the surrender supplied. Sir W. Grant said-" There certainly are

(e) 17 Ves. 294.

cases of supplying surrenders upon a deed as well as a will, but upon the same principle, as in the case of a will or in the execution of a power, that is, for and against the same persons." In other words, that the Court would indeed supply surrenders upon instruments inter vivos, as well as upon wills, not however as against the settlor himself from the time of the execution, but only as against an heir who was otherwise sufficiently provided for.

Lord Eldon has, on more than one occasion, alluded to the point under discussion, but has cautiously abstained from expressing the inclination of his opinion (ƒ). The best results that can be obtained from such conflicting authorities appear to be these:—

1. There is nothing to warrant the position, that an agreement, founded on meritorious consideration, will be executed as against the settlor himself (g).

Indeed, relief in such a case would offend against the security of property; for, if a man will improvidently bind himself by a complete alienation, the Court will not unloose the fetters he hath put upon himself, but he must lie down under his own folly (h); but if the Court interpose where the act is left incomplete, what is this but to wrest property from a person who has not legally parted with it? Another observation that suggests itself is, that, during the lifetime of the settlor, the ground of meritorious consideration scarcely seems to apply; for can it be thought to be the duty of a husband to endow his wife, during the coverture, with a separate and inde

(f) Ellison v. Ellison, 6 Ves. 662; Pulvertoft v. Pulvertoft, 18 Ves. 98.

(g) Antrobus V. Smith, 12

Ves. 39.

(h) Villers v. Beaumont, 1 Vern. 101, per cur.

pendent provision? or is a parent bound by any natural or moral obligation to impoverish himself (for such a case may be supposed) for the purpose of enriching a child? or has a Court of equity the jurisdiction to appropriate a specific fund to creditors, when, the debtor still living, the presumption of law is, that the creditor can obtain satisfaction of his debt by the usual legal process? It is after the decease of the settlor that meritorious consideration becomes such a powerful plea in a Court of equity. The wife and the children have then lost the personal support of the husband and parent, and who can then have a juster claim to the inheritance of his property? The creditor is then barred by the act of God of his remedy against the debtor; and, should the assets prove insufficient, how but by the assistance of equity can he hope to be satisfied his demand? Another objection to the execution of a voluntary contract against the settlor himself is the principle expressed by Lord Cowper, that Equity, like Nature, will do nothing in vain (i). Where money is directed to be converted into land, or land into money, the devisee or legatee, if no other person be interested, may elect to take the property in its original state, for, should the Court direct an actual conversion, the devisee or legatee might immediately annul the order by resorting to a re-conversion; and so, should the Court decree the specific performance of a contract for meritorious consideration, the property the next moment might be disposed of to a bona fide purchaser, and the settlement become perfectly nugatory. In a case before Lord Nottingham, Sir Henry on his marriage with Catherine had covenanted to surrender copyholds to

(i) Seeley v. Jago, 1 P. W. 389.

the use of himself for life, remainder to Catherine for life, remainder to the heirs male of his body by Catherine, remainder to Allen and the heirs male of his body; and Lord Nottingham said "If Sir Henry and Allen were both in life, Allen could not enforce Sir Henry to execute the covenant, (yet Catherine might,) for it were vain to decree that to be done by Henry, which Henry might undo the next day (k)." It does not appear whether Lord Nottingham meant, that, as the remainder to Allen was voluntary, Sir Henry might destroy it by a subsequent sale to a bona fide purchaser; or that, as Sir Henry was prior tenant in tail, he could bar the remainder over by suffering a recovery, but utráque viá datá the principle was the same. Lord Eldon once observed -"Suppose this settlement had given an express power of revocation to the husband, having in his own dominion the means of putting an end to it the moment it was acted upon; perhaps in such a case, as in case of a quasi estate tail of renewable leaseholds for lives, the Court would not interfere; but here there is no power of revocation by his own act-there must be the concurrence of others. Suppose the trustees (of the settlement) were incapable of acting; that the surviving trustee had left an infant heir; it is difficult to maintain that, though an estate and trust were actually created, this Court would stop, on the ground that the estate might at some future period be destroyed by a conveyance for valuable consideration()." But these observations were made upon a case in which a perfect trust had been created; and the only question the Court contemplated was, whether,

(k) Bellingham v. Lowther, 1 Ch. Ca. 243.

(1) Pulvertoft v. Pulvertoft, 18 Ves. 99.