a living on the land for the first few years after they should take possession of the same. It undoubtedly was for that reason that he assisted them after they took possession of the land.

It is hardly necessary to refer to the well-settled principle that, in equity, part performance takes a parol agreement for the sale of real estate out of the operation of the Statute of Frauds. (See Mallins v. Brown, 4 Comstock 403.) According to our statutes nothing in them "shall be construed to abridge the powers of courts of equity, to compel the specific performance of agreements in cases of part performance of such agreements:" 2 R. S. 135, § 10.

Whether a gift of land may be so far executed as to entitle the donee to a specific performance of it by the donor, is the question to be determined in this case.

In the case of The Lessee of Syler and Wife v. Eckhart, 1 Binn. 378, TILGHMAN, C. J., in delivering the opinion of the court, says: "It has been settled that where a parol agreement is clearly proved, in consequence of which one of the parties has taken possession and made valuable improvements, such agreement shall be carried into effect. We see no material difference between a sale and a gift; because it certainly would be fraudulent conduct in a parent to make a gift which he knew to be void, and thus entice his child into a great expenditure of money and labor, of which he meant to reap the benefit himself." And it was held in that case, that a parol gift of lands by a father to his son, accompanied with possession, and followed by the son's making improvements on the land, is valid, notwithstanding the act of frauds and perjuries.

Judge BLACK charged the jury, in Hughs v. Walker, 12 Penn. State Rep. 173, as follows, to wit: "Where a man makes a parol sale and receives the purchase-money, he cannot set up the Statute of Frauds against the validity of the contract. So, where he makes a gift by parol, either to his son or to a stranger, if the donee has gone into possession in pursuance of the gift, and made valuable improvements on it, the land so given cannot be claimed back again, and the possession resumed by the donor." The judgment in that case was affirmed. And COULTER, J., in delivering the opinion of the court, said, in respect to the charge of Judge BLACK to the jury: "I will let the charge speak for itself. It will carry itself through.'

The principles laid down in the above two cases have never been departed from by the courts of Pennsylvania, but have been sustained and reiterated in other cases. (See Mahon v. Baker, 2 Casey 519.)

The following cases sustain to some extent the proposition that the acceptance of the land in dispute, as a gift by the defendants, and their occupancy of it, and their improvements on it, pursuant to the gift, with the approbation of the plaintiff, render the gift irrevocable: King's Heirs v. Thompson, 9 Peters 205; Pope v. Henry, 24 Vermont Rep. 560; Dugan v. Gittings, 3 Gill 138.

The gift was executed by the parties, except that no deed was executed by the plaintiff and delivered to the defendants, so as to show that the defendants had a freehold estate in the land.

I am of the opinion we ought to hold that the gift partook of the nature of a contract and became binding upon the plaintiff in the nature of a contract, by a good and valuable consideration that moved from the defendants, by their changing their place of residence and spending six years of their lives upon the land when it yielded very little, and by their making valuable improvements upon the land and paying taxes thereon. It is not improbable that the defendants, within the time they occupied the land in dispute, might, if they had lived elsewhere, have earned and saved property of greater value than this land. Had the defendant, James W. Freeman, remained on the land with his wife, it would have been unjust and tantamount to a fraud for the plaintiff to have turned the defendants out of possession. And is it not more unjust and more like fraud for the plaintiff, with the consent, if not connivance, of James W. Freeman, to turn the wife of the latter out of possession of the land?

It seems to me the conduct of the plaintiff towards the defendant, Julia Ann Freeman, should be characterized as fraudulent, and be held fraudulent.

The gift of the land to the defendants was a direct encouragement to them to spend their lives upon it, labor on it, improve it, and expend money upon it; and it would be against conscience to allow the plaintiff to revoke the gift. And I am of the opinion the gift should be specifically enforced, on the ground that it has become irrevocable, and valid as a contract, by reason of the consideration that has moved from the defendants, in consequence of the gift, which consideration they could recover of the plaintiff

if its value could be ascertained or estimated in dollars. (See Rhodes v. Rhodes, 3 Sand. Ch. Reps. 279.)

The case is one in which justice cannot be done without holding the gift of the land to the defendants irrevocable, and enforcing it in favor of the defendant, Julia Ann Freeman.

The plaintiff's counsel relies on the case of McCray v. McCray, 30 Barb. 633, to sustain the decision of the referee. In that case a new trial was granted on the ground that the defendant had offered to prove a parol contract for the land in dispute and part performance of it, which was improperly rejected. The question whether the defendant could have held the land in dispute, in that case, by a parol gift, was not decided; and it was not necessary to determine that question, for there was a contract that controlled the decision.

I am aware that the general rule is, that a gift, strictly speaking, is not regarded in the light of a contract, because it is voluntary, and without consideration. And yet every gift which is made perfect by delivery is an executed contract; for it is founded on the mutual consent of the parties, in reference to a right or interest passing between them. (See 2 Kent's Com. 9th ed., p. 574.)

It is no innovation to hold that the gift of the land in this case partook of the nature of a contract, and became binding upon the plaintiff as a contract, when the consideration, in consequence of the gift, passed from the defendants. And it was not necessary that the plaintiff should be benefited by the consideration. It must be deemed to have passed from the defendants at the instance and request of the plaintiff. He solicited them to take the land, and move on to it, occupy it, and improve it, at a loss to them, for they could not get a living on it. He assisted them in moving upon it; and although he was prompted to do so by the love and affection he had for the defendants, he must be held. responsible for the situation in which the defendants were at the time he undertook to turn them out of the possession of the land.

My conclusion is that the defendants were, in equity, entitled to a life estate in the land in dispute at the time the action was commenced; and that the referee should have found, as a conclusion of law, that the defendant, Julia Ann Freeman, was entitled to a judgment in her favor; and entitled to a deed conveying to her and her husband the land in dispute, to have and to hold the

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same so long as they or either of them should live. (See Lobdell v. Lobdell, 33 How. Pr. Reps. 347.)

Judgment should be reversed, and a new trial granted.

BOARDMAN, PARKER, and MURRAY, JJ., concurred.

United States District Court, Eastern District of Pennsylvania.

BENNETT'S CASE.

ERBEN'S CASE.

Under the provision of the 14th section of the Bankrupt Law of 2d March 1867, excepting from the operation of the act the property of debtors exempted from levy and sale by the laws of the state, a vested expectant interest of a bankrupt in a sum of money payable at his own death, or at the death of another person, may, in Pennsylvania, be set apart for the use of the bankrupt; so, however, that its appraised present value, estimated as in cases of life insurance, does not exceed $300, or that the bankrupt does not receive more than $300, if the value thus estimated exceeds that amount.

IN Bennett's Case, the bankrupt was one of the children of an intestate, whose land having been sold under proceedings in the Orphans' Court of the proper county of the state, a third of the money produced was invested so as to secure to the intestate's widow the receipt of the interest for her life, and to his children the receipt, in equal shares, of the capital at her death. The widow was living when the inventory and appraisement of the bankrupt's effects were made, and at the date of the allotment of what was set apart for his own use under the provisions of the 14th section of the Act of Congress. His expectant vested interest in the share of the capital payable at her death, was appraised at its present value, estimated as in cases of life insurance. The valuation was of less amount than $300. The bankrupt claimed, and the assignee set apart for him, this item of the estate, as excepted from the operation of the proceedings in bankruptcy, by the 14th section of the Act of Congress of 2d March 1867, under the head of property "exempted from levy and sale upon execution or other process or order of court by the laws of the state * to an amount not exceeding that allowed by those laws in force in 1864."

In Erben's Case, the bankrupt had effected an insurance on his

own life in a sum of money payable at his death to his wife. It was alleged that he had been solvent when the insurance was effected, and that it formed no part of his estate. But he had paid the annual premiums after his insolvency. This insurance had been appraised as part of the assigned estate; and had afterwards been claimed and set apart for the use of himself as exempt under the provisions of the Act of Congress, and those laws of the state upon which the question arose in Bennett's Case.

Upon the hearing of these cases in the Court of Bankruptcy, CADWALADER, J., said that in the case of a similar expectant interest in corporeal property, which interest could be levied on and sold under an execution, he would have had no doubt of the applicability of the exemption laws of the state. But the expectant interests here in question could not be sold under an execution. They could not be reached by a creditor in a court of the state, otherwise than by way of attachment execution—a proceeding under which there could be no sale, in the strict sense of the word. In each case, the question of exemption depended, under the Act of Congress, altogether upon the effect of legislation of the state, or depended upon a meaning of words, which was to be determined according to the effect attributable to them by the courts of the state under such legislation.

He therefore asked the assistance of two judges of the courts of the state, Judge STRONG, of the Supreme Court, and Judge HARE, President of the District Court for the City of Philadelphia.

Judges STRONG and HARE sat accordingly as assessors; and heard the questions argued by counsel on 16th September 1868.

I. S. Sharp, for Erben.

Dawes, for Bennett.

Bispham, contrà.

Judges STRONG and HARE, on the 18th of September 1868, expressed their concurrent opinion that the expectant interests in the money payable at the respective deaths of Mrs. Bennett and Mr. Erben, were included in the meaning of the words "property exempted from levy and sale upon execution or other process or order of the court by the laws of the state," and would be ex