25 N.Y.S. 225 | N.Y. Sup. Ct. | 1893
The four individual parties to the action are the four sons and sole heirs at law and next of kin of John Kinyon, Sr., deceased, and one of the brothers is also joined as plaintiff in his representative capacity as administrator of his -father’s estate. The complaint alleged the execution and delivery by the father, in his lifetime, to the defendant, of a deed of a farm of 91 acres of land “as an advancement,” and the execution and delivery thereupon and in consideration thereof by the defendant to his father of an instrument in writing, under seal, which, after stating the fact of the deed above mentioned, proceeded in the following terms: ‘Now, therefore, in consideration of such conveyance being made and delivered to me as aforesaid, I do hereby renounce, release, give up, and set over unto my said father all my right, title, interest, claim, and demand whatsoever in and to all and every part, parcel, or share in and to his real and personal estate which I may or will have at or upon his death, in expectancy, by reason of being a devisee or legatee under any will he has- made, or by reason of being one of his next of kin, excepting the lands hereinabove referred to as conveyed to me by him this day.” The complaint
Assuming—what is not questioned by any one of the parties hereto—that this action was properly brought in aid of the proceedings before the surrogate, the question here seems to us to be, what wras properly the scope of the action, and was the case considered and disposed of below in accordance therewith? The learned judge at special term seems to have restricted the scope of the action to a determination of the validity and effect, as a transfer, of the release or agreement executed by the defendant. In the opinion, which we find in the case, he intimates that no other question was presented by the pleadings, and that no other was tried before him. He seems disposed, moreover, in determining this question, to isolate the instrument from its surroundings, and construe it by its own terms as standing alone. Treated thus, the instrument is found to be an assignment or transfer of a mere expectancy, not coupled with any present interest; and it is held to be absolutely void in law, upon the authority of such cases as Jackson v. Wright, 14 Johns. 192; Jackson v. Hubble, 1 Cow. 613; Miller v. Emans, 19 N. Y. 384; and it was upon this, as a controlling conclusion of law, that the case was disposed of, not merely by a dismissal of the complaint, but by an affirmative adjudication that the defendant was entitled to a full, distributive share of the personal estate of his father “as one of his next of kin, the same as if said instrument had not been executed.” This conclusion ignores any equitable effect which might be given to the instrument in view of the other circumstances of the transaction, and, especially, rejects it as evidence of an advancement made to the defendant in full of his prospective interest in his father’s estate. These latter were, we think, aspects of the case which were fairly presented both by the pleadings and by the proofs, to which brief reference has been made above. That the mere expectancy of an heir to his ancestor’s estate may be assigned, and that such an assignment will be enforced in equity after the death of the ancestor, if made bona fide and for a valuable consideration, admits of no doubt. Quarles v. Quarles, 4 Mass. 680; Kenney v. Tucker, 8 Mass. 143; Power’s Appeal, 63 Pa. St. 443; Stover v. Eycleshimer, 46 Barb. 84, *42 N. Y, 620. And that the assignment or release in this case was made to the ancestor himself, and not to any person capable of taking after his death, is not conclusive against the effect of the instrument. The case of Power’s Appeal, supra, was one in which sons had received advancements from their father, and executed releases to him in full of their shares of his estate; and the court, by Bead, J., said:
“An heir or an expectant devisee or legatee may, in the lifetime of the intestate or testator, in equity sell or assign his expectant or contingent interest, whatever it may turn out to be upon the death of the person from whom it may come, which contract, if made upon a valuable consideration, a court of equity will enforce. If so, there can be no reason why a father should not make such a contract with a son which should entirely bar all his claim as an heir to any part of his parent’s estate.”
-Judgment appealed from reversed, and a new trial granted, with costs to abide the final award of costs. All concur.