17 N.H. 515 | Superior Court of New Hampshire | 1845
No question respecting the joinder of the parties arises on these pleadings.
Under the feudal tenures, or under the law of real property, as modified in England, no contract like the one in question could have any existence affecting real estate. But in regard to an orphanage share of personal estate, under the custom of London contracts of this character have been recognized as a good bar of a claim, and enforced in a court of equity. 2 Eq. Cas. Abr. 272, pl. 36; 1 Atk. 63, Ives v. Medcalfe.
The custom of London in regard to orphanage has been said to be the remains of the old common law, that a man could not give away any part of his estate with'out the
The statute of 22 and 23 Car. II. has been supposed to have been grounded upon this custom of London (4 Mass. 685), but if the custom is only a continuation of the common law in that particular locality, the statute would appear to be a modified restoration of the old common law in cases of intestacy. The custom of London had regard to personal estate only, on the supposition that a freeman wmuld not purchase land, but would employ his whole fortune in commerce. 1 Eq. Cas. Abr. 150, note.
Doubts have been expressed how far a release of a share was valid at law, because the party releasing had no present interest, but it was not doubted that a covenant to release was binding. 2 P. Wms. 272, Cox v. Belitha. A release without a covenant w~as held good in equity, and specifically enforced. 1 P. Wms. 639, Blunden v. Barker. It was urged in that case that the child was not sui juris ; the awe he was presumed to have of his .parent, the duty he owed him, the total dependence he had upon him for all the conveniences of life, would not suffer him to be a free agent in this case ; v?ould not permit him to deny giving a release to his father, though upon advancing to him a portion much less than the customary share would come to. But lord chancellor Parker answered, “ if it should ever appear that this power has been abused, a court of equity would certainly set aside the release thus indirectly gained.” Id. 639; 2 Atk. 160, Heron v. Heron.
An agreement of children that in consideration that the father would come to London and take up his freedom, they would release any right or demand they might be entitled to in respect of his personal estate, by virtue of the custom, was held invalid ; and it was said by the lord chancellor that the custom of Loudon admits of no
The receipt of a share of a parent’s estate in advance, may, in many instances, be very advantageous to a child, without being detrimental to the parent; and we have no reason to doubt that, in accordance with the general principles of the law, such a release may be held here as a valid bar of any legal claim to a share of real as well as personal estate — the real estate here being subject to distribution like the personal property. The transaction is one of advancement, or in the nature of advancement, to the child of its portion; and our statutes expressly recognize and provide for advancements as an effectual bar to a claim on the part of the child, affecting the real as well as personal estate in such cases, without any agreement on the part of the child that what is received shall be an advancement. Rev. Stat, ch. 166, secs. 8-11.
In-the absence of fraud or imposition the child of full age may well be°permitted to judge what shall be a full advancement. There is authority in this country holding such contracts valid in relation to real estate. 8 Mass. 143, Kenney v. Tucker; 3 Met. 121, Trull v. Eastman.
Whether the instrument could have availed to show a legal title in the respondents, if they were prosecuting a writ of entry against the parties in possession, we need not determine. It is set up here by way of defence. Besides, a petition for partition under the statute is in the nature of a bill in equity.
Petition dismissed.
