120 HIGH COURT OF CHANCERY.

children on a footing of entire equality. It is perfectly clear,
that the testator intended to give to each the same precise in-
terest in his estate, in regard alike to quantity and quality, and
to permit this arrangement to be disturbed, would be to defeat
a cherished object of the testator.

The rule as assented by the Court of Appeals in the case of
McElfresh vs. Schley and Barr, is, "that a man shall not take
a benefit under a will, and at the same time defeat the provi-
sions of the instrument," &c., and, as according to my view of
this case, the complainant is now attempting, by this bill, to
violate this rule, I should on this ground, if none other existed,
refuse him relief.

[The decree in this case was affirmed on appeal.]

JAMES OWINGS,
vs.
WILLIAM BALDWIN

AND

GEORGE WHEELER.

DECEMBER TERM, 1847.

[PART PERFORMANCE—-SPECIFIC EXECUTION.)

THBRE can be no doubt, that if a party has succeeded in proving a contract,
and in showing that it has been in part performed, he is entitled to have it
specifically executed.

This right is founded, not upon the notion that part performance is a compli-
ance with the statute of frauds, but upon the ground, that it takes the case
entirely out of the statute.

In order to take a case put of the statute, on the ground of part performance,
the plaintiff must make out, by clear and satisfactory proof, the existence of
the contract, as laid in the bill, and the act of part performance must be of
the identical contract set up by him.

It is not enough that the act is evidence of some agreement; but it must be un-
equivocal and satisfactory evidence of the particular agreement charged in

the bill.

Where delivery of possession is relied upon, it is indispensable that such deliv-
ery to, and taking possession by, the defendant, is referrable to the contract
alleged in the bill, and not to a distinct or different title.