competition, is illegal, and no party to such combination can derive any benefit from the sale: Hamilton v. Hamilton, 2 Id. 355.

Want of, or DEFECT IN, NOTICE OF SHERIFF'S SALE.-The defendant may waive notice of a sheriff's sale where there are no legal liens: Davis v. Murray, 12 Am. Dec. 660. An omission by the sheriff to comply with the requirements of the statute with respect to giving notice of a sale, according to Webber v. Cox, 17 Id. 127, does not vitiate the sale as against an innocent purchaser; but it is otherwise where there is fraud in the officer and knowledge of it by the purchaser. Trover lies against an officer for selling without notice: Wright v. Spencer, 18 Id. 76.

RETENTION OF POSSESSION BY DEFENDANT IN EXECUTION, after a sheriff's sale: See the note to Boardman v. Keeler, 15 Id. 671; Batchelder v. Carter, 19 Id. 707.

TOWLES v. BURTON.

[RICHARDSON'S EQUITY CASES, 146.]

TRUST MAY BE ESTABLISHED BY PAROL IN AN ABSOLUTE BEQUEST by showing that the legatee received it upon a promise made to the testator to provide for a third person out of it.

BOND GIVEN BY A LEGATEE TO THE TESTATOR referring to a will of the same date, conditioned to hold "one half of the personal property which he was to receive" from the testator's estate, to the use of another person, will be enforced in equity where the will is superseded by a second will containing substantially the same devises and bequests.

EQUITY WILL ENFORCE PERFORMANCE OF THE CONDITION OF A BOND, and leave the party to his action at law for the penalty, where the penalty is merely accessorial, being designed to secure the enjoyment of a collateral object which is regarded as the principal intent of the deed.

BILL filed by the complainants as children of Scythia Towles, claiming half of a certain bequest received under the will of William Burton, sen., by William Burton, jun., also deceased, of whom the defendants were the representatives, on the ground that the said one half was held in trust for the said Scythia by the said William Burton, jun. It appeared that William Burton, sen., the father of William Burton, jun., and of the said Scythia, made his will on May 5, 1812, giving a life estate in all his personalty to his wife, and directing that after her death all his movables, including negroes, should be divided as follows: One half to his son William Burton, jun.; one fourth to his son Aaron, and one fourth to his daughter Phoebe. The testator also gave fifty dollars to his son, Gideon, stating in the will that his said son had already received a full share of his property. He gave to his daughter, Scythia Towles, a cow and a calf at the death of her mother, saying nothing as to her having previously received any share of his property. On the same day

the testator caused his son William to execute to his son Aaron a bond in the penalty of eight hundred dollars, conditioned to pay to his sister, Scythia Towles, after the decease of his mother, "one half of the personal property which he was to receive" at his mother's death, in case the husband of the said Scythia should then be deceased, and if not, that the said William should pay the same at his discretion in small payments in such property as he should think best for the said Scythia and her children. The bond further disclosed the fact that the reason why the testator had given his daughter, Scythia, only a cow and calf was, that her husband was a drunkard, spendthrift, and prodigal, and that the testator had been obliged to provide her and her children with means of livelihood.

It further appeared that on April 19, 1823, at the instance of William Burton, jun., who desired to have some alteration in the dividing lines of certain land given by the will to himself and his brother Aaron, the testator made another will, making the desired alteration, but containing exactly the same dis positions of the personalty as the previous will, except that the legacy to Gideon was increased to two hundred dollars, and that one negro was bequeathed to whichever of the testator's children the said negro should choose for his master or mistress. At the time of the execution of the second will it was proved by parol evidence, admitted by the chancellor, notwithstanding the objections of the defendants, that the testator called for the bond previously executed by his son; that search was made for it while the will was being drawn; that it was not found until the will was drawn; that when the bond was produced, William Burton, jun., said that it was not worth while to have taken the trouble to hunt it up; that he would have done as much for his sister Scythia without the bond as with it, and that he would rather give her two dollars than take one from her; that the testator had intended to have a new bond drawn, but that the person who drew the will said it was as good a bond as he could draw, and no new bond was drawn; that the testator told his son Aaron to take the bond home, and take care of it, as it might be wanted after his death; that Aaron told him that the bond was not large enough, but the testator replied that it was merely to show his son William what he intended; and that William was present during this conversation. It further appeared that both the testator and the said William considered the bond good, and that William always acknowledged himself to be liable upon it, both in his

father's life-time and afterwards, until some time after his father's death; that the father and the said William had frequently said that Scythia was to have half the personalty bequeathed to William; that the testator stated expressly that the reason he did not give it to her directly was because of her husband's spendthrift and prodigal conduct. It appeared also that the testator entertained very great affection for his daughter Scythia. The person who drew the will testified that if it had not been for the understanding between the testator and his son William, he did not think he would have given William more than a fourth. There was some contradictory evidence on all these points.

The testator died in April, 1826 (his wife having previously deceased), and the will was proved and the bond deposited with the ordinary by Aaron. Some time afterwards an appraisement and division of the personal estate were made. The negroes were divided into four lots, of which Aaron drew one, and Phoebe one, and William two. There was testimony to the effect that William stated at the time that he drew one of the lots for his sister Scythia. There was evidence that certain supplies had been furnished by the testator and by the said William to Scythia and her family, which the defendants claimed were equal to her share; but it was proved that the testator and William frequently declared that they had no claims or charges against her or her family. Both Scythia and her husband and the said William died before the suit was commenced. The chancellor decreed that the defendants deliver up to the complainants their share of the negroes, and that the commissioner should settle which of the lots drawn by William should belong to them. The commissioner was also directed to report what sums were due for the hire and labor of the slaves, deducting the value of the supplies furnished to Mrs. Towles and her family by the said William after his father's death. The defendants were ordered to pay the costs. The defendants appealed from this decree on grounds which are sufficiently manifest from the opinion.

Caldwell, for the appellants.

By Court, JOHNSON, J. We are very clearly of opinion, with the chancellor, that in the absence of written evidence parol was admissible to show that one half of the personal estate bequeathed by Wm. Burton, sen., to his son, Wm. Burton, jun., was bequeathed by the testator with the knowledge of the lega.

tee, on the confidence that he would take and hold it in trust for his sister, Mrs. Towles. It is certainly no violation of the rule of evidence, which excludes parol evidence, to add to, vary, or alter a will or other writing; for the will takes effect precisely in the manner expressed on its face. Wm. Burton, jun., takes one half of the residue of the personal estate. The foundation of the plaintiff's claim rests on a parol contract between the testator and his son William. The transaction, as explained by the most unequivocal proof, supposes that the testator held to the legatee a language something like this: "I am desirous of providing for my daughter, Mrs. Towles, but her husband is a prodigal and will waste it if I give anything to her directly; to prevent this I propose to bequeath to you directly the portion which I intend as a provision for her;" and that the legatee consented to accept it upon these terms, and promised on his part to fulfill his wishes. Now, here is a clear and explicit promise, founded on full consideration (the legacy) in relation to personal estate; and where is the rule of law which avoids it? See Stickland v. Aldridge, 9 Ves. 516. But we incline to think this evidence was superseded by the higher evidence of the bond of Wm. Burton, jun., of the fifth May, 1812. That was made, it is true, in direct reference to the will of the same date, but it contains a direct undertaking on the part of Wm. Burton, jun., that he would hold "one half of the personal property which he was to receive" of his father's estate, to the use of Mrs. Towles, and it was one from which he could not discharge himself by any act of his, and would apply to that or any other will. As a contract, it was immaterial whether it preceded or followed the execution of the consideration on which it was founded. He would have been as much bound by a bond made in reference to a will contemplated to be made ten years after, as if it had been contemporaneously executed. The fact that the testator gave, in the last will also, a double portion to this son, and nothing, comparatively, to his daughter, Mrs. Towles, in a will intended otherwise to put all his children upon a footing of equality, goes very far to show, of itself, that the will was made in reference to the bond, and on that account would be binding. The trust proved by the parol evidence is precisely that indicated in the condition of the bond, and whether the one or the other is adopted, the result is the same. In support of the motion it is also contended that if the bond is set up the plaintiff's remedy is at law for the penalty, and chancery not having jurisdiction,

the complainant's bill ought to be dismissed. But this position can not be maintained. When the penalty is intended merely to secure the enjoyment of a collateral object, the enjoyment of the object is considered as the principal intent of the deed, and the penalty is considered as only accessorial, and equity will enforce the performance of the condition at the instance of the obligee, or restrain proceedings at law to recover the penalty: 1 Fonbl. 151.

In the order of reference made by the chancellor, the circumstance, that the testator was possessed of personal estate other than his negroes, and which was covered by the bequest to Wm. Burton, jun., seems to have been entirely overlooked, which renders a modification of the decree indispensable. It is therefore ordered and decreed that the defendants do account before the commissioner for the one half of the whole personal estate (including slaves) so, as aforesaid, bequeathed by Wm. Burton, sen., to his son, Wm. Burton, jun., and which was disposed of by the said Wm. Burton, jun., in his life-time, or the defendants since his death, and for the hire of slaves, interest on moneys, or other income arising from the one half of the said estate so bequeathed to the said Wm. Burton, jun., and that he credit the defendants with any payments made to Mrs. Towles, or supplies furnished her family in the execution of the trust reposed in the said Wm. Burton, jun., by his said father, as herein before stated. That if, upon the adjustment of these accounts, it shall appear that the defendants or the testator are in advance to Mrs. Towles beyond the amount of their receipts, the defendants shall be reimbursed out of the personal estate remaining in their hands; and upon a final account, according to these principles, it is further ordered, that the said personal estate now remaining in the hands, power, or possession of the defendants, be partitioned in equal moieties between the complainants and defendants; and that this order be taken as a substitute for that made by the chancellor, the object being an equal partition of the legacy to Wm. Burton, jun., between the complainants and defendants.

O'NEALL and MARTIN, JJ., concurred.

Decree modified.

PAROL EVIDENCE OF A TRUST IN A BEQUEST.-The parol evidence offered in this case was clearly admissible in accordance with the principle laid down in Owings' case, 17 Am. Dec. 338, and by Lord Westbury, in McCormick v. Grogan, L. R., 4 H. of L. (Eng. and Irish Appeals), 97, quoted in the note