(b) Ante, ch. 8, § 2.

(c) In the language of Lord Redesdale, to entitle the plaintiff to a specific performance, he must show, that in seeking the performance he does not call upon the other party to do an act which he is not lawfully competent to do. Harnett v. Yeildiug, 2 Sch. & L. 554; Wood v.

Griffith, 1 Swanst. 55; Sears v City of Boston, 16 Pick. 357. A trustee will not be compelled to commit a breach of trust. Bridger v. Rice, 1 Jacob & W. 74; White v. Cuddon, 8 Clark & F. 766; Mortlock p. Buller, 10 Ves. 292; Bellringer v. Bla-grave, 1 De G. & S. 63. No matter how fair the conduct of the other party may have been. Ord v. Noel, 5 Madd 438. Unless under special circumstances, a party will not be compelled to do an act which would expose him to a forfeiture. Peacock v. Penson, 11 Beav. 355.

(d) Maiden v. Fyson, 9 Beav. 347. In such cases the rule is to dismiss the bill, but without costs. Id.

{dd) Smith v. Johnson, 37 Ala. 633,

(de) Hopper v. Hopper, 1 Green, 147.

(df) Love v. Cobb, 63 N. C. 324.

1 Specific performance will not be granted of a contract to assign a patent which is void. Kennedy v. Hazelton, 128 U. S. 667. Nor of a contract to convey a homestead where the wife refuses to join in the deed and it would be a nullity otherwise, even though the purchaser is willing to accept a deed from the husband alone. Moses v. McClain, 82 Ala. 370. Nor of a contract to assign a lease which contains a covenant not to assign without the lessor's consent, and the lessor is by agreement with others precluded from giving such consent. Hurl but v Kantzler, 112 I11 482.

2 But where the seller has disabled himself to carry out an agreement to convey land, the purchaser was held entitled to a decree that the seller make reasonable efforts to reacquire the title and convey to him. Welborn v. Sechrist, 88 N. C. 287. - K.

It is obvious that an agreement to make a certain disposition of property by last will, is one which, strictly speaking, is not capable of a specific execution, - not in the party's lifetime, because any testamentary instrument is by its nature revocable; and after his death it is no longer possible to make his last will. Yet it has been held to be within the jurisdiction of equity to do what is equivalent to a specific performance of such an agreement, by requiring those upon whom the legal title has descended to convey the property in accordance with its terms, (e)l And the court will not allow this post mortem remedy to be defeated by any devise, or conveyance in the lifetime inconsistent with the agreement, unless indeed rights of purchasers deserving of protection should intervene. (f) But if *one contracts to devise, and during his life conveys, the land away, equity sometimes requires his representatives to make full compensation. As a general rule, it may be said, that where a specific performance would be decreed as between the original parties to a contract, it will be decreed as between all who claim under them, unless new and intervening equities would make the decree operate injustice towards these parties, (g) In some of the United States the specific performance of a contract of a deceased party is provided for by statute. But we suppose that every court having equity powers must be able to do this.

(e) Brinker v. Brinker, 7 Barr, 53; Gibson, C. J., McClure v. McClare, 1 id. 378; Rogers, J., Logan v. McGinn is, 12 Pa. 32, Mundorff v. Kilbourn, 4 Md. 459, 463. And see the cases in the next note, and Scully v. Scully, Sugden. Law of Property, in House of Lords, 104. A contrary doctrine was declared in Stafford v. Bartholomew, 2 Cart. (Ind.) 153. See Harder v. Harder, 2 Sandf. Ch. 17; Carlisle v. Fleming, I Hairing. (Del.) 421. It has been held, that a will made in pursuance of the agreement, may, in the event of its failing to operate as a will, serve as a memorandum of the agreement within the statute of frauds; and that, if it be lost, its contents, as such memorandum, may be proved by parol. Brinker v. Brinker, 7 Barr, 55. See Rowan's Appeal, 25 Pa. 294.

(f) In the case of a covenant (such as appears to be quite usual in English family settlements), that the covenantee shall,at the death of the covenantor, receive by his will a certain proportion of the real or personal estate (as the case may be) of which he shall die seised or possessed, - it is held, that while it is in the power of the covenantor, by conveyance operating in his lifetime, to dispose of his whole interest in the property or any part of it, he cannot convey it away in violation of the agreement, either by any testamentary act, or any act which, though not testamentary in form, is so in effect; if therefore, he make a conveyance in which he retains a right of control over the property, or reserves to him self a life-estate (or perhaps even a less interest), such conveyance, being a fraud upon his agreement, may be set aside, and the estate being then subject to the covenant, will be decreed to pass as if the covenant were specifically executed. Fortescue v. Hannah, 19 Ves. 67; Logan v. Wienholt, 7 Bligh (n s.), 1; Sugden, Law of Property, in House of Lords, 106, Randall v Willis, 5 Ves 262.

1 In Carmichael v Carmichael, 72 Mich. 76, it appeared that a father and mother made their wills in accordance with a parol agreement. The father died and the mother accepted the provisions of his will in her favor. She afterwards conveyed her property to some of her children in violation of the agreement. It was held that equity would give relief at the suit of other children who were injured by breach of the agreement. In Sharkey v. McDermott, 91 Mo. 647, the plaintiff had lived with a husband and wife as their daughter, rendering services and paying them such wages as she received, with the understanding that she should be adopted and their property left to her at their death. It was held that after their death equity would enforce the agreement, as she had fully performed the contract on her part. On somewhat similar facts a contrary decision was reached in Maddison v. Alderson, 8 App. Cas. 467. See further, Bolman v. Overall, 80 Ala. 451; Taylor v. Mitchell, 87 Pa. 518.