LEONARD, C.

There can be no doubt of the validity of the agreement to compromise the hostile and conflicting claims of the plaintiff and defendant, as between themselves. The defendant Church argues that the property devised to him is charged with a trust for the maintenance of the widow of Roswell Downer, the deceased testator, and hence that he cannot legally convey it as he had agreed. The provision of the will, as stated in the case, is that the property is devised to Loren Church, subject to the support and maintenance of the widow. This language does not create a trust, it creates an encumbrance. The title to the property devised is vested in Church, charged with the support of the widow, as an encumbrance. There is no difficulty in his conveying such title as he has. The plaintiff takes it subject to the charge contained in the instrument creating the title in the defendant. The facts, as they are found by the referee, show no hardship or injustice in requiring the defendant to deliver the papers deposited in escrow with Mr. Symonds. The plaintiff has fully performed his part of the agreement, at some expense and loss of time, and there is no hardship or injustice in requiring the defendant to complete the performance of it on his part. The hardship and injustice would be the other way, if the defendant is not held to his contract, in damages or by its due performance. The facts do not support the defendant's position. There is no trust as to the property.

The defendant also insists that an error was committed in excluding evidence which he offered of the capacity of the testator to make a will. The capacity of the testator was not at issue. The presumption of law was also in favor of his capacity; it had not been disputed even. The defendant had the benefit of the fact as claimed, quite as strongly as his evidence could have proven it. It was not open to the defendant to attack the consideration of the agreement, and the evidence was inadmissible, therefore, for that object. No such defence was set up by the answer.

The evidence was correctly excluded, and no other questions having been urged upon our consideration, although others were raised in the court below, the judgment should be affirmed with costs.

All concurred.

Judgment affirmed, with costs.