CHAPTER VI THE TRANSFER OF EXPECTANCIES SECTION 1.-RELEASE TO ANCESTOR HILTON v. HILTON. (Supreme Judicial Court of Maine, 1907. 103 Me. 92, 68 Atl. 595.) EMERY, C. J.1 Joshua Hilton died intestate, leaving two children only as heirs, the petitioner and the respondent in this petition for a partition of the real estate of the deceased intestate. The respondent claims that the petitioner received from their father in his lifetime a gift and grant which the petitioner accepted and acknowledged in writing as a full advancement of all his distributive share in the real and personal estate of his father, and hence has no title to any part of the real estate sought to be divided. In this state the whole subject-matter of the devolution of the property of a deceased intestate, including advancement, is governed by statute. The statute on descent of real estate (Rev. St. c. 77) provides (in section 4) that gifts and grants of real or personal estate to a child or grandchild shall be deemed an advancement when so expressed therein, or acknowledged in writing to be such (in section 5); that, when the value of an advancement is determined by the intestate in his gift or is acknowledged in writing, it (that value) shall be allowed in the distribution; and (in section 6) that, when the advancement in real or personal estate exceeds the recipient's share in the real or personal estate as the case may be, he shall receive so much less of the other on distribution as will make his whole share equal. These sections authorize a parent and child to fix for themselves the value of the advancement, and whenever they do so that value so fixed, large or small, is to be allowed in the distribution, even if it be fixed as the equivalent of the child's whole share in both the real and personal estate. It is thus competent for a child by accepting an advancement, however small, to debar himself from all right to share in his parent's estate, however large. Smith v. Smith, 59 Me. 214; Nesmith v. Dinsmore, 17 N. H. 515; Simpson v. Simpson, 114 Ill. 1 The statement of facts is omitted, and part only of the opinion is given. 603, 4 N. E. 137, 7 N. E. 287; Palmer v. Culbertson, 143 N. Y. 213, 38 N. E. 199. From the report in this case it appears that controversies had arisen between the petitioner and his wife on the one hand, and his father on the other. To adjust these controversies and prevent litigation over them, the parties signed and delivered each to the other a written instrument of agreement, releases, and conveyances, dated January 31, 1903, and herewith printed as a part of this opinion. By this instru ment the father on his part released to the petitioner and his wife all demands of whatever nature he had against either of them, also released to them his rights in certain personal property in Norridgewock, and bound himself to give them a quitclaim of certain real estate there. It is not questioned that such quitclaim was duly given as a part of the transaction. As a result the petitioner received from his father property, or property rights, presumably of some pecuniary value and which would constitute an advancement if so intended, and such intention evidenced in writing as required by the statute. By the same instrument the petitioner and his wife on their part, and in consideration of the releases, conveyances, and agreements made therein by the father, acknowledged full satisfaction of all demands against him, his heirs, and personal representatives, and also "receipt in full of all demands they or either of them claiming as heir or otherwise have or may have against the estate of" the father. It is urged in argument by the petitioner that this latter clause had reference only to claims as heir of the petitioner's mother; the father having received. some property inherited by the petitioner from his mother. The first clause, however, that acknowledging "full satisfaction of all demands" against the father, "his heirs and personal representatives," is most comprehensive, and completely covers all the petitioner's claims against his father as heir of his mother. The addition of the second clause after such a comprehensive clause, and the specification in it of "the estate" of the father as the estate to be freed from the petitioner's claim as heir, satisfies us that the petitioner in writing acknowledged the benefits accruing to him from the transaction to be an advancement. The real value of the releases and property interests thus given and granted to the petitioner is, of course, quite problematical, but the petitioner accepted them in writing as the full equivalent of whatever share might otherwise come to him in his father's estate, large or small. That was the value fixed by the parties and by them put in writing to satisfy the statute. The petitioner was of full age, of sound mind, and, so far as appears, acted freely and understandingly. In view of the situation at the time, he may have deemed his chance of receiving anything from his father's estate by will or descent as very slender and with good reason have preferred the arrangement made in the writing. He was authorized by the statute to make such an arrangement in writing, and we think he has done so, and thereby received in his father's lifetime what he acknowledged to be his full lawful share in his father's estate. * * Petition dismissed, with costs.2 SECTION 2.-CONVEYANCE TO THIRD PERSONS McCLURE v. RABEN. (Supreme Court of Indiana, 1890. 125 Ind. 139, 25 N. E. 179, 9 L. R. A. 477.) OLDS, J. [After stating that in this suit for partition one Raben, by amended cross-petition, set up that Joseph McClure, by deed which stated that he "does hereby grant, bargain, sell and convey," conveyed to Samuel D. McReynolds, his heirs and assigns, forever, the real estate sought to be partitioned, "or all the estate, right and title that the said McClure may have in and to the same at the death of his mother, the widow of John McClure, deceased, as one of her heirs at law," that the said McReynolds conveyed to Raben, and that the mother of McClure was dead, and after noting that a demurrer by Joseph McClure to this amended cross-petition was overruled, the learned Justice continued:] The question presented is as to whether or not the sale and conveyance by Joseph McClure of his expectant interest in the real estate owned in fee simple by his mother, and of which she was in possession at the time of the sale, is valid either in law or in equity, so as to pass the title thereto to his grantee on Joseph's survival of his mother. 2 See Brands v. De Witt, 44 N. J. Eq. 545, 10 Atl. 181, 14 Atl. 894, 6 Am. St. Rep. 909 (1888); In re Simon's Estate, 158 Mich. 256, 122 N. W. 544 (1909). In In re Garcelon, 104 Cal. 570, 38 Pac. 114, 32 L. R. A. 595, 43 Am. St. Rep. 134 (1894), the rule was adhered to despite a statute which provided that "a mere possibility, such as the expectancy of an heir apparent, is not to be deemed an interest of any kind" and "cannot be transferred." See, also, Estate of Edelman, 148 Cal. 233, 82 Pac. 962, 113 Am. St. Rep. 231 (1905). But see Headrick v. McDowell, 102 Va. 124, 127, 45 S. E. 804, 65 L. R. A. 578, 102 Am. St. Rep. 843 (1903), where the court says that "upon the death of the ancestor the descent is cast by operation of law upon the heirs, and the personalty passes in accordance with the statute of distribution," save only that an advancement must be brought into hotchpot. To the same effect is Elliott v. Leslie, 124 Ky. 553, 99 S. W. 619, 124 Am. St. Rep. 418 (1907). In Simpson v. Simpson, 114 Ill. 603, 4 N. E. 137, 7 N. E. 287 (1885), the acceptance by B. of property in full satisfaction of his share as prospective heir of his father A.'s estate kept B.'s children from getting anything from A.'s estate, although B. died before A. See, also, Quarles v. Quarles, 4 Mass. 680 (1808). But see Buck v. Kittle, 49 Vt. 288 (1877). On the validity of transactions between an heir and his ancestor relating to the former's expectancy, see 32 L. R. A. 595, note; 65 L. R. A. 578, note. 3 Part only of the opinion is given. The broad question is presented as to whether a child, during the lifetime of his father or mother, can make a valid sale and transfer of an expectant interest in the real estate at the time owned by and in the possession of the parent, as in this case. It is conceded that the deed in this case contains no covenants of warranty by which an after-acquired title would pass to the grantee, but it is contended on behalf of the appellee that the cross-complaint shows the sale to have been made in good faith, and for a valuable consideration, and without fraud, and that it is valid in equity, and that the grantee is entitled to have it specifically enforced on the estate vesting in the grantor. In this contention of the appellee we cannot concur. It is a general rule that a sale in the absence of property conveys no title. There must be something to sell or else there can be no sale. It is conceded that the rule which applies in case of a deed of general warranty, whereby the heir would be barred from setting up a subsequently acquired title, does not apply; and applying the rule applicable to quitclaim deeds, and treating the conveyance in this case as such, the heir is not estopped from setting up the subsequently acquired title. * * * The identical question involved in this case was decided by the Supreme Court of Ohio in the case of Hart v. Gregg, 32 Ohio St. 502, and it was held that the conveyance by a son of his expectancy in land owned by his father, which would descend to him if he survived his father, and the latter should die intestate, owning the same, is the conveyance of a naked possibility, not coupled with an interest, and passes no estate or interest in the land; that such a conveyance does not operate to defeat the grantor's title afterwards acquired by descent, except by way of legal or equitable estoppel; and that if such conveyance contains no covenants of warranty or recitals, and there are no acts of the grantor amounting to an equitable estoppel, he is not estopped from asserting an after-acquired title. In that case it is said by the court: "In the deed before us, as there are no covenants of warranty, nor any recitals of fact that he had any title, or any right to make the conveyance, there is nothing that would estop the grantor, either at law or in equity, from setting up an after-acquired title, where, as in this case, there is no possession under the deed, and no charge of fraud in the transaction." See Boynton v. Hubbard, 7 Mass. 112. Indeed, many of the authorities which assert that such conveyances may be upheld and enforced by courts of equity declare that the onus is upon the purchaser to show that the transaction was a bona fide one, and based upon a full consideration, and that the ancestor from whom the estate is expected was informed of and acquiesced in the sale, and that inadequacy of consideration alone is sufficient to avoid. the contract. Even the enforcement of them, under such circumstances, is regarded of doubtful propriety. Story, in his work on Equity (1 Story, Eq. Jur. [12th Ed.] § 328), says: "Let us now pass to the consideration of the third class of constructive frauds, combining in some degree the ingredients of the others, but prohibited mainly because they unconscientiously compromit or injuriously affect the private rights, interests, or duties of the parties themselves, or operate substantially as frauds upon the private rights, interests, duties, or intentions of third persons." Again it is said (section 333): "But the great class of cases in which relief is granted under this third head of constructive fraud is that where the contract or other act is substantially a fraud upon the rights, interests, duties, or intentions of third persons. And here the general rule is, that particular persons in contracts and other acts shall not only transact bona fide between themselves, but shall not transact mala fide in respect to other persons who stand in such a relation to either as to be affected by the contract or the consequences of it. And as the rest of mankind besides the parties contracting are concerned, the rule is properly said to be governed by public utility." Section 334: "It is upon this ground that relief has been constantly granted in what are called 'catching bargains' with heirs, reversioners, and expectants during the life of their parents, or other ancestors. Many, and indeed most, of these cases, as has been pointedly remarked by Lord Hardwicke, have been mixed cases, compounded of almost every species of fraud, there being sometimes proof of actual fraud, which is always decisive. There is always fraud presumed or inferred from the circumstances or conditions of the parties contracting, from weakness on one side and usury on the other, or extortion or advantage taken of that weakness. There has always been an appearance of fraud from the nature of the bargain, even if there be no proof of any circumvention, but merely from intrinsic unconscionableness of the bargain. In most of these cases have concurred deceit and illusion on other persons not privy to the fraudulent agreement. The father, ancestor, or relation from whom was the expectation of the estate, has been kept in the dark. The heir or expectant has been kept from disclosing his circumstances, and from resorting to them for advice, which might have tended to his relief and also reformation. This misleads the ancestor who has been seduced to leave his estate, not to his heir or family, but to a set of artful persons who have divided the spoils beforehand." See, also, sections 335, 336. It is laid down as a rule that "it will be sufficient to make the purchase unimpeachable, if a fair price, or the fair market price, be given there for at the time of the dealing." Section 336. In treating of this subject, Pomeroy, in his work on Equity Jurisprudence (volume 2, pp. 473, 474, § 953), says: "Equity, therefore, treats such dealings with expectant interests as a possible fraud upon the heirs and reversioners who are immediate parties to the transaction, and as a virtual fraud upon their ancestors, life tenants, and other present owners." And it is further said: "But in every such conveyance or contract with an heir, reversioner, or expectant, a pre |