66 Vt. 101 | Vt. | 1894
This is a bill, brought by the guardians of the minor children of E. B. Bodwell, deceased, praying to have Ida A. Bodwell, the widow of the deceased, compelled specifically to perform a post-nuptial agreement, entered into by her while covert with the deceased, in regard to living separate and apart from the deceased, and relinquishing ‘ ‘ all right, title and interest in and to his property and estate.” The orators, as the representatives of the minor children, stand upon the rights of E. B. Bodwell, as they existed at the time of his decease. Without attempting to determine whether the contract is such that equity would specifically enforce it, under any circumstances, or whether it is fair and just in its provisions for the defendant; or whether its proper construction would debar the defendant of homestead-and dower and other provisions of the statute for her benefit in his estate, it is elementary that “he who seeks equity must do equity,” or that a party to a contract, or those standing on his rights, to entitle himself to a specific performance of the provisions of the contract, which are to be performed for his benefit, must affirmatively establish that he has faithfully kept and performed, or is ready and willing to keep and perform, all the provisions of the contract resting upon him to perform, for the benefit of the other party. The deceased had not kept and performed one of the essential provisions of the contract which rested upon him to perform. By the contract the defendant, Ida A. Bodwell, was given the care and custody of their minor son, Burleigh W., so long as she should properly provide and care for him. The master has found that she did properly provide and care for him, and that the deceased did not regard this provision of the contract, but very soon after it was entered into, against her wish, stealthily took the son from
Decree reversed, cause remanded, with a mandate to the court of chancery to dismiss the hill with costs to the defendant in this court.
