1. H., in contemplation of marriage
with B., gave a bond for 5,000 dol-
lars, and interest, to trustees, to se-
cure to B. a support during the
marriage, and after the death of
H., in case she should survive him,
and to their child or children, in
case he should survive her; with
condition that if H. should, within
the time of his life, or within one
year after the marriage, whichso-
ever of the said terms should first
expire,) convey to the trustees
some good estate, real or personal,
sufficient to secure the annual pay-
ment of 300 dollars, for the sepa
rate use of his wife during the mar-
riage, and also sufficient to secure
the payment of the said 5,000 dol-
lars to her use in case she should
survive her husband, to be paid
within six months after his death;
and in case of her death before her
husband, to be paid to their child
or children; or if H. should die
before B., and by his will should,
within a year from its date, make
such devises and bequests as should
be adequate to these provisions,
then the bond to be void. H. died,
leaving his widow B. and a son,
having, by his last will, devised a
tract of 1,000 acres of land, in the
Mississippi Territory, to his son
in fee; a tract of 10,000 acres in
Kentucky, equally between his wife
and son, with a devise over to her,
in fee, of the son's moiety, if he
died before he attained "the law-
ful age to will it away." And the
residue of his estate, real and per-
sonal, to be divided equally between
his wife and son with the same con-
tingent devise over to her as with
regard to the tract of 10,000 acres.
The value of the property thus de-

vised to her, beside the contingent
interest, might have been estima-
ted, at the time of H.'s death, at
10,000 dollars. B. subsequently di-
ed. having made a nuncupative
will, by which she devised all her
estate, “whether vested in her by
the will of her deceased husband
or otherwise," to be divided be
tween her son and the plaintiff in
the cause, with a contingent devise
of the whole to the survivor. The
son afterwards died, and the plain-
tiff brought his bill to charge the
lands of H. with the payment of
the bond for 5,000 dollars and in-
terest, to which the plaintiff deri-
ved his right under the nuncupa-
tive will of R. By the laws of Ken-
tucky this will did not pass the real
estate of the testator, but was suffi-
cient to pass her personal estate,
including the bond. Held, that the
provision in the will of H. for his
wife, must be taken in satisfaction
of the bond, but subject to her liber-
ty to elect under the will and the
bond, and that this privilege was
extended to her devisee, the plain-
tiff. Hunter et al. v. Bryant, 32
2. Actual maintenance is equivalent to
the payment of a sum secured for
separate maintenance, and, there-
fore, interest upon the bond during
the husband's life-time, was not al-
lowed. Ib.

4.

40

3. Under all the circumstances of the
case it was determined that the
bond was chargeable on the resi-
due of the estate, and of this, the
personality first in order. Ib. 41
It is a universal rule of equity, that
he who asks for a specific perform-
ance, must be in a condition to per-
form himself. Therefore, in a suit
for the specific performance of a
contract, by conveying lands in
Ohio, stipulated to be conveyed as
the consideration for other lands
sold in Kentucky, it was held that
the vendor, being unable to make a
title free from incumbrances to the
landis sold in Kentucky, was not
entitled to a decree for a specific
performance. Morgan's heirs v.
Morgan,
290