Martin v. Martin

222 S.W. 291 | Tex. App. | 1920

We agree with appellants that the recital in the deed to Rufe Martin set out in the statement above was contractual in the sense that it was subject to the parol evidence rule (17 Cyc. 567 et seq.; Kahn v. Kahn,94 Tex. 114, 58 S.W. 825); and further that the plain meaning of the recital was that the acceptance by Rufe Martin of the deed containing it was to operate as a relinquishment by him of every claim he then had and of every claim he thereafter might have to property then owned by J. L. Martin and to property which said J. L. Martin thereafter might acquire. And, while there are plausible reasons and respectable authorities which support a contrary view of the question, we also agree with appellants that Rufe Martin having accepted said deed was estopped by said recital from asserting title in himself to a part of the land in controversy. 1 R.C.L. 673; In re Simon, 158 Mich. 256, 122 N.W. 544, 17 Ann.Cas. 723, and note page 725 et seq.; Daggett v. Barre, 135 S.W. 1099; Barre v. Daggett, 105 Tex. 572, 153 S.W. 120. The doctrine approved by the greater weight of the authorities, and which we think is supported by the better reasons, is stated in 1 R.C.L. 673, cited above, as follows:

"It is common for a child, on receiving an advancement, to release his right to any further distributive share in the donor's estate. It is now generally recognized therefore that when a child accepts and uses an advancement given and received as his full distributive share of the estate he is estopped from denying the express conditions contained in the instrument by virtue of which he received it. If he does not want to be bound thereby, he should not receive it. Whether the arrangement is called a contract not to take, or release to take effect in the future, the principle is the same. When the estate is cast by the death of the ancestor, it operates to estop the heir to take what he has agreed he will not claim. The justice of the rule is apparent. Sometimes the present use of a certain sum is worth more to a child than the uncertain prospect of sharing in a parent's estate, although the future share may, in the end, amount to many times its present value. Therefore the law kindly permits child and parent, taking into consideration the estate of the parent, the uncertainty of life, the precarious nature of property and wealth and the ages, necessities, and surroundings of both, to fix on a certain amount which, received by the child, shall be deemed equivalent at the time of the receipt thereof to a full distributive portion of the parent's estate at the time of his death. Another reason given is that it must be presumed that the parent relied upon the agreement and release, and but for it would have made a will; and that the child should be compelled to abide by his promise and thus prevent the just expectations of the parent from being disappointed. To the suggestion that a considerable inequality of interest may be, in fact, the result of accepting an advancement as in full for the statute share, it has been replied that in most cases it is uncertain whether any advancement will not result in inequality. The ancestor, after advancing a child or children, may accumulate or may lose property, or other children may be born, and thereby the whole theory of equality of distribution will be upset. * * * The release need not be executed with any greater formality than a simple contract, and there is no necessity for its being executed under seal. It is not even essential that a child shall sign a deed from his father which contains an agreement relinquishing any further right to share in the father's estate. By accepting the deed and entering into the enjoyment of the property thereby transferred he estops himself from thereafter claiming a further share of his father's estate."

The judgment will be reversed, and judgment will be here rendered for appellants for all the land they sued for.