Newsome v. Cogburn, 30 Ga. 291

Newsome v. Cogburn

30 Ga. 291 | Ga. | 1860

By the Court.

Lyon, J.,

delivering the opinion.

Did the distribution made by John Newsome, the intestate, in his life-time, to the children of his first marriage, and their acceptance of an equal share of his whole estate at that *295time, on the terms expressed in their several receipts given for the same — that is, in full of all their claim or interest in his estate — exclude them from all further participation in this estate? We think it did. The intestate intended that the portions respectively given and received by his older children should be in full of all present and future claim on his estate, and that the balance left should go to his younger children. That was his intention. The children so understood, and accepted the property on that condition. It was a fair and legitimate contract between all parties. It is not pretended that the distribution was unequal, unfair, or fraudulent, or that if the property was all brought back and subjected to a new division that their respective shares would be increased. The practical and unnatural advantage that these parties propose to derive from defeating the intention of their father, is to keep the property they received, account for it in a division at its then value, and have an account of the property left in the hands of the intestate at his death, and which is the portion of the younger children under the contract, at its present increased value, so that the increase and increased value of that part of the property shall be the subject of general division, thus increasing their shares and diminishing that of the younger children. Such advantage would be unconscientious, unequitable, in violation of their contract, and cannot be allowed. We cannot see any good reason for disturbing this fair and just settlement. The release — if it be considered as a release, thought it is not strictly so, but a settlement or contract — was to the father for the benefit of the releaser and the younger children. It is not objectionable because between parent and child, as no advantage was taken. Nor is it so because the thing released or the subject of contract was a bare expectancy or probability. “Contingent interests and expectancies may not only be assigned in equity, but they may also be the subjects of a contract, such as a contract of sale, when made for a valuable consideration, which Courts of equity, after the event has happened, will enforce. So even the naked probability or expectancy of an heir, to his ancestor’s estate, may become the subject of a contract of sale or settlement; and in such cases if made bona fine for a valuable consideration, it will be enforced in equity after the death of the ancestors, not, indeed, as a trust attaching to the estate, but as a right of contract. *296Story Eq., sec. 1040 (l); Wright vs. Wright, 1 Ves. Sr., 409. The same principle-is recognized aby this Court in Dugas vs. Lawrence, 19 Ga., 559.

Judgment affirmed.