54 Kan. 523 | Kan. | 1895
The opinion of the court was delivered by
The questions in this case are, whether an expectancy of an heir to his ancestor’s estate may be assigned, and, if so, whether the contract above set forth is effectual for that purpose. It is the general rule that an assignment at law will not be sustained unless the subject-matter has an actual or potential existence when the assignment is made, but it appears to be well settled that an expectancy of an heir in an ancestor’s estate may become the subject of contract, and may be assigned in equity. Courts of equity will uphold such an agreement of an heir apparent where it is fairly made and for an adequate consideration. If no unjust advantage is taken of the indiscretion or necessities of the heir, and if the agreement is not unconscionable, and is not obtained by fraud or oppression, it may be enforced in equity after the death of the ancestor. (Steele v. Frierson, 85 Tenn. 430; Story, Eq. Jur., §1040; Pom. Eq. Jur., §§ 1287, 1288; 1 Am. & Eng. Eneyc. of Law, 830, and cases cited.) In the present case, it does not appear that there was any unfairness or fraud in the transaction. There is no suggestion that the consideration is inadequate, nor that any unjust advantage was taken of John Clendening. Indeed, it was not charged or shown that there was any misrepresentation, unfairness, oppression, nor insufficient consideration. John Clendening, who executed the writing, had evidently reached years of maturity, as he was a married maD, whose wife joined him in the execution of the contract.
It is insisted that this contract is in form a quitclaim deed, under which only the present existing interest of John Clendening in his mother’s estate would pass. It is true that, ordinarily, the grantee in a quitclaim deed gets nothing except what his grantor in fact owned at the time of the execution of the deed. (Johnson v. Williams, 37 Kas. 179.) And if the
The contention that the action was barred cannot be sustained. Under the authorities, the contract was not enforceable until the death of the ancestor, and as Joanna Clendening died on November 5,1887, the cause of action did not accrue until that time. This action was begun less than two years after the death of the ancestor, and, therefore, there is no ground upon which to claim that the action is barred. The judgment of the district court will be affirmed.