44 A. 86 | N.H. | 1894
At common law no right passes by a release but a right which the releasor had at the time the release was made. Quarles v. Quarles,
Is the writing evidence that the sum of $300 was paid to her by way of advancement as her share in the estate of the deceased? "No personal property delivered shall be deemed an advancement unless proved to be such by an acknowledgment in writing, signed by the party receiving it," etc. P. S., c. 196, s. 12; G.L., c. 203, s. 12. The plaintiff was the only child and heir of her deceased mother, daughter of Jonas G. Brown, and, in case he should die intestate, she surviving him, would inherit a share of his estate, then, and at the time of his decease four months later, of the value of $10,000. The word "advancement" is not in the writing, nor is it necessary. No particular form of words is required by the statute to constitute an advancement; but it must appear that the money paid or property delivered was not paid or delivered as a loan or gift. It must appear that the money or property was intended as an advancement towards the child's future share of his father's estate. Fellows v. Little,
The plaintiff offers to show that the sum of $300 was not paid to her as an advancement, but in payment of a debt due to her from Jonas; that the paper signed by her was intended as receipt and for no other purpose; and that through fraud or mistake a release was substituted for a receipt. The defendant objects that parol evidence to show these facts would be in violation of the well-known rule of evidence, that a written contract cannot be contradicted or varied by parol.
That the plaintiff's signature was obtained by fraud may be shown by parol. Fraud vitiates every contract. The evidence neither varies nor contradicts the contract. On the contrary, it shows that the parties never entered into the alleged contract, and that the writing never was the deed of the party defrauded. A general plea that a deed was obtained by fraud or misrepresentation is sufficient. 1 Ch. Pl. *537. It is a good replication to a plea of release that it was obtained by fraud. 1 Ch. Pl. *582; Hoitt v. Holcomb,
Is parol evidence admissible to show that the writing was signed through misapprehension or mistake? In Goodwin v. Goodwin,
In Farbush v. Goodwin,
In Insurance Co. v. Wilkinson, 13 Wall. 222, an action upon a policy of insurance, parol evidence was received to show that incorrect answers to certain questions in the application were inserted by the agent of the insurance company without any procurement, fault, or negligence of the assured. The decision in that case might well be sustained upon the ground that a fraud had been perpetrated upon the assured.
In Fuller v. Crittenden,
In Goodwin v. Goodwin, supra, there was no contention that the terms of the writing were not what the parties intended and understood, and hence no parol explanation was required as to its purport and effect. Foster, J., in the opinion remarked: "The contract is positive. It might, perhaps, be avoided by showing, that the plaintiff's signature was obtained by fraud, or through a mistake or misapprehension of material facts."
It will probably be found on examination of the cases, that the conflict in the decisions is not wholly reconcilable.
In this view of the case, without attempting to decide how far the writing in question is it receipt and how far it is a contract, we do not decide whether parol evidence is admissible in this proceeding to show that it was signed through mistake or misapprehension of material facts. The plaintiff has a full and adequate remedy by filing a bill in equity for a reformation or rescission of the writing, as an amendment to her reasons of' appeal.
Case discharged.
CARPENTER, J., did not sit: the others concurred. *89