121 Iowa 169 | Iowa | 1903
Under the will the plaintiff took title to the land subject to the bequest of $1,500 to W. E. Mally. Immediately after testator’s death Emma Mally caused execution to be issued on a judgment previously obtained by her against W. E. Mally, and levied on this land. The plaintiff sought to enjoin the sale on the ground that in the lifetime of the testator W. E. Mally had orally assigned to him all of his possible or expectant interest in the testator’s estate in satisfaction of a debt due him. Appellant insists that under the evidence the court should have so held. This is the only point raised by him; and for this reason we do not pass upon the more difficult question as to whether the legacy under the will is a mere lien on the real estate or an interest in the land subject to execution. The current of authority is to the effect that an assignment of a naked possibility or expectancy of an heir apparent to an estate, if in good faith and for an adequate consideration, will be enforced in a court of equity after the death of the ancestor. See Jones v. Jones, 46 Iowa, 466, and decisions collected in 4 Cy. 15; exhaustive notes to McCall v. Hampton, in 33 L. R. A. 266, and to 56 Am. St. Rep. 339—a recent case to the contrary. As to whether it must also appear that the assignment was made with the ancestor’s knowledge and acquiescence, the authorities are in conflict. In the early case of Boynton v. Hubbard, 7 Mass. 112, this was held tobe essential, and that decision has been followed in McClure v. Raben, 125 Ind. 139 (25 N. E. Rep. 179, 9 L. R. A. 477), and 133 Ind. 507, 33 N E. Rep. 275, 36 Am. St. Rep. 558; to which some support
The evidence fails to show a present assignment. True, plaintiff testified as a conclusion that his brother W. E, Mally “made a verbal assignment to me of any interest he might have in his mother’s estate. ” But the language