
    KINYON v. KINYON.
    
      N. Y. Supreme Court, General Term, Fifth Department;
    
    
      October, 1893.
    1. Assignment; expectancy.] A son’s release or assignment for a valuable consideration of his expectant interest in his father’s estate, though made to the father himself and not to a person capable of taking from him, may be enforced in equity after the father’s death.
    
    .2. Trials; findingsl\ In an action, in aid of an administrator’s accounting in the surrogate’s court, to establish the validity of a son’s release of his expectant interest in intestate’s estate, the complaint alleged the execution and delivery by the father in his lifetime of the deed of a farm to the son “as an advancement,” and in consideration of the release; and upon the trial there was evidence tending to show that, at the time of the execution of the instruments, it was understood that their effect would be to bar the son from claiming any interest in his father’s estate, and that the father had also, at the same time, under-, taken to divide his remaining property (consisting of personalty) among his other sons, but had finally decided not to do so. —Held, that upon such pleading and proof, it was error for the court to determine that the release was void because an assignment or transfer of a mere expectancy not coupled with a present interest, and to refuse to find, upon the ground that the question was not before the court, as to whether such contract operated as an advancement, or ought to be enforced in equity.
    Appeal by plaintiff from a judgment of the Special Term of the Supreme Court, Niagara County, in favor of defendant.
    Action by Charles Kinyon individually and as administrator of John Kinyon, deceased, John Kinyon, Jr., and George Kinyon against Albert Kinyon, to have it adjudged, in aid of the administrator’s accounting in fhe surrogate’s court, that a release of defendant’s expectant interest in the estate of his deceased father, John Kinyon, in consideration of a conveyance of a farm by the latter in his lifetime to defendant, was a valid and effectual instrument.
    The answer among other things denied that the conveyance to defendant was an advancement, and alleged that it was made in payment for services and for money lent; and set up as a further defense that by the fraud and undue influence of the plaintiff, John Kinyon, Jr., the decedent had been induced in his lifetime to destroy a will making equal division of his property, and to refuse to execute the conveyance of the farm to the defendant unless he would sign a release ; and that defendant had been induced by the said John Kinyon, Jr., to sign the release -by representations that it was invalid and by promises that defendant should not be deprived of his share in his father’s estate. Defendant demanded judgment that the release be treated as a nullity and adjudged to be void ; and that he be adjudged entitled to receive his share in the estate.
    There was no reply.
    
      The Special Term held that the release was void as a transfer or conveyance of an estate in expectancy not coupled with a present interest, and directed judgment declaring it of no force or effect to preclude defendant from sharing in his father’s personal estate as one of the next of kin, and decreeing that defendant was entitled to his distributive share therein.
    The further facts are fully stated in the opinion.
    
      David Millar (C. W. Laskey, attorney), for appellants.
    I. Surrogate had no jurisdiction to determine the contested release (Citing Van Sinderin v. Lawrence, 50 Hun, 277; Sanders v. Soutter, 126 N. Y. 193); nor the disputed. claim that defendant accepted the conveyance as an advancement (Citing Riggs v. Cragg, 89 N. Y. 479; Fiester v. Shepard, 92 Id. 251); nor whether defendant was equitably estopped (Citing Pettigrew v. Foshay, 12 Hun, 483).
    II. Defendant having accepted the deed and not rescinded, cannot dispute its validity (Citing Kibbe v. Bowen, 50 Super. Ct. 422; Duff v. Hutchinson, 32 N. Y. State Rep. 949; Gould v. Cayuga Nat. Bk. 99 N. Y. 333; S. C., 86 Id. 84; Allerton v. Allerton, 50 Id. 670).
    III. Defendant having accepted deed as advancement is estopped from claiming a share in his father’s estate as against the remaining next of kin (Citing Quarles v. Quarles, 4 Mass. 680; Kenny v. Tucker, 8 Id. 143; Power’s Appeal, 63 Pa. St. 443; Stovies v. Eycleshimer, 3 Keyes, 620; 46 Barb. 84; Story’s Eq. Juris. § 1040c; Hobfon v. Trevor, 2 P. Wins. 191; Douglas v. Russell, 4 Sim. 524; Jenkins v. Stetson, 9 Allen (Mass.), 128; Hannon v. Christopher, 34 N. J. Eq. 459; Lewisburg Lumber Mf’g Co. v. Marsh, 91 Pa. St. 96; Curtis v. Curtis, 40 Me. 24; Fitzgerald v. Vestal, 4 Sneed (Tenn.), 258; McDonald v. McDonald, 5 Jones Eq. (N. C.), 211; Bingham's Eq. 215; 1 Am. & Eng. Ency. of Law, 830).
    IV. The conveyance was an advancement (Citing Parker v. McCluer, 3 Keyes, 318; s. c., 5 Abb. Pr. N. S. 97; Dayton on Surrogates, 557 et seq; Beebe v. Estabrooke, 79 N. Y. 246; Hicks v. Gildersleeve, 4 Abb. Pr. 1; Williams on Exors. 1353, 1356; Hobart v. Hobart, 58 Barb. 296; Redfield Surr. Pr. 612 ; Bouver’s Law Dict. “Advancement;” Chase v. Ewing, 51 Barb. 597; Presens v. McIntyre, 5 Id. 424; McRae v. McRae, 3 Bradf. 199; Scarvin v. Scarvin, 1 T. & C. 65; Story Eq. Juris. §§ 1202, 1203; Terry v. Dayton, 31 Barb. 519).
    V. Decedent left only personal property, consequently the law of advancements applies (Citing Thompson v. Carmichael, 3 Sandf Ch. 120; Dayton Surr. 563; Redf. Surr. 569-97; Clark v. Kingsley, 37 Hun, 266).
    
      
      George D. Judson, for respondent.
    I. Conveyance of rights and things not in being is void (Citing Jackson v. Wright, 14 Johns. 193; Anderson v. Jackson, 16 Id. 382; Decker v. Saltman, 1 Hun, 421; aff’d in 59 N. Y. 275; Earle v. Bernard, 22 How. Pr. 437; Otis v. Still, 8 Barb. 102; Alves v. Schlesinger, 81 Ky. 290; 1 Parsons on Contracts, 521).
    II. A son’s hope is not a possibility coupled with an interest, and cannot be made subject of transfer (Citing Millers. Emans, 19 N. Y. 384; Pelletreau v. Varick, 13 Wend. 178; Edwards v. Varick, 5 Den. 664; Jackson v. Winslow, 1 Cow. 613; 9 Id. 1, 271; Smith v. Baylis, 3 Den. 567: 4 Kent's Com. 145; 2 Id. 400; Story Eq. Juris. § 1040; 1 Parsons on Contracts, 521; Lampet’s Case, 10 Coke, 46; Coke’s Littleton, § 446; Carleton v. Leighton, 2 Merival, 667; Comegy’s Vasse, 1 Peters, 193; Alves v. Schlesinger, 81 Ky. 290; Boydion v. Hubbard, 7 Mass. 112; Whitfield v. Fausset, 1 Vesey, 391).
    III. Defendant was not estopped by release because there was no covenant of warranty (Citing Jackson v. Wright, 14 Johns. 193; Jackson v. Winslow, 1 Cow. 613; Pelletreau v. Varick, 13 Wend. 178; Edwards v. Varick, 5 Den. 664; Dartv . Dart, 7 Conn. 250; Boydton v. Hubbard, 7 Mass. 112; Littleton, § 446).
    IV. Plaintiffs cannot evoke the principle of estoppel because they were not parties to the instrument (Citing 8 Wart’s Actions and Defenses, 521; Otis v. Still, 8 Barb. 102; Welland Canal Co. v. Hathaway, 8 Wend. 480; Dezell v. Odell, 3 Hill, 215; Glenn v. Garth, 45 N. Y. State Rep. 729; Snyder v. Brooks, 45 N. Y Supp. 467; Dickson v. Colgrave, 100 U. S. 578; Ketchum v. Duncan, 96 Id. 659).
    
      
      See note at the end of the next case but one.
    
   Dwight, P. J.

The four individual parties to the action are the four sons and sole heirs-at-law and next of "kin of John Kinyon, Sr., deceased, and one of the brothers is also joined as plaintiff in his representative capacity as administrator of his father’s estate. The complaint alleged the execution and delivery by the father, in his. lifetime, to the defendant, of a deed of a farm of ninety-one acres of land “as an advancement,” and the execution and delivery thereupon and in consideration thereof by the defendant to his father of an instrument in writing under seal, which, after stating the fact of the deed above-mentioned, proceeded in the following terms : “ Now,, therefore, in consideration of such conveyance being made, and delivered to me as aforesaid, I do hereby renounce,, release, give up, and set over unto my said father all my right, title, interest, claim and demand whatsoever in and. to all and every part, parcel, or share in and to his real and personal estate which I may or will have at or upon his death, in expectancy, by reason of being a devisee or legatee under any will he has made, or by reason of being one of his next of kin, excepting the lands hereinabove referred to as conveyed to me by him this day.” The-complaint further alleges that in proceedings instituted in the surrogate’s court of the proper county by the plaintiff, Charles Kinyon, as administrator of his father’s estate, for the settlement of his account as such administrator, he set up the execution and delivery by the intestate of' the deed above mentioned to the defendant, and the execution and delivery of the release aforesaid in consideration thereof, and alleged that by such release the defendant did renounce, release and give up all his right, title and interest in and to the estate of the deceased, and his right' to share therein, and that by reason thereof he was not entitled to any share of or interest in the distribution of said estate ; “ that thereupon, notwithstanding such release, the defendant was permitted to intervene-upon such accounting, and that he filed an answer contesting said account in so far only as the same related to the accounting aforesaid, and among other things therein alleged that the said alleged release was void, and of no-legal force and effect, ..... and that he, the said Albert Kinyon, was entitled to an equal distributive share of the said decedent’s estate, viz. : the one-fourth part thereof, and that he asked that a decree be made accordingly. The complaint further alleges that when the issues thus joined came up to be heard by the surrogate he held and decided that he had no jurisdiction to determine the validity or invalidity of the release, and that the account of the administrator could not be judicially settled, nor any part of the estate distributed, until the question of the validity or invalidity of the release should be determined in the proper tribunal; and that the surrogate thereupon made and entered an order to that effect, and adjourned the accounting, which the plaintiffs are informed and believed will be further adjourned or held open pending the determination of this action. On the trial of this action, evidence aliunde the deed and agreement was given by the plaintiffs, under objection of the defendant, tending to show that at the time of the execution of the papers it was understood and agreed between the deceased and the defendant that the effect of the transaction as a whole was to bar and prevent him from ever thereafter claiming any share of or interest in his father’s estate. It was also shown that the father had before that time deeded farms to two of his sons, and that he did on this occasion deed a farm to the other of his sons aside from the defendant • and that at the same time there was proposed and some steps were taken towards a division then and there of the-certain moneys and.securities, which was all the property the father then had undisposed of, between the three-brothers other than the defendant; but that, on the father manifesting reluctance to strip himself entirely of the last of his possessions, final division of the personal property was abandoned. The result was that on the death of the father, not long after, there was of his estate about the sum of $3,000 in personal property to be distributed among such of his sons as were entitled thereto, and ■it was upon the return of a citation for the settlement of the accounts of the administrator, with a view to such distribution, that the controversy arose before the surrogate which has resulted in this action.

Assuming, what is not questioned by any one of the parties hereto, that this action was properly brought in aid of the proceedings before the surrogate, the question here seems to us to be, what was properly the scope of the action, and was the case considered and disposed of below in accordance therewith ? The learned judge at Special Term seems to have restricted the scope of the action to a determination of the validity and effect as a transfer of ■ the release or agreement executed by the defendant. In the opinion, which we find in the case, he intimates that no other question was presented by the pleadings, and that no other was tried before him. He seems disposed, moreover, in determining this question, to isolate the ■ instrument from its surroundings, and construe it by its own terms as standing alone. Treated- thus, the instrument is found to be an assignmfent or transfer of a mere ■expectancy, not coupled with any present interest; and it is held to be absolutely void in law, upon the authority of ■such cases as Jackson v. Wright (14 Johns. 192); Jackson v. Hubble (1 Cow. 613); Miller v. Emans (19 N. Y. 384); and it was upon this, as a controlling conclusion of law, that the case was disposed of not merely by a dismissal of the complaint, but by an affirmative adjudication that the defendant was entitled to a full, distributive share of the personal estate of his father “ as one of his next of kin the same as if said instrument had not been executed.”

This conclusion ignores any equitable effect which might be given to the instrument in view of the other cir- ■ cumstances of the transaction, and especially rejects it as evidence of an advancement made to the defendant in full of his prospective interest in his father’s estate. These latter were, we think, aspects of the case which were fairly-presented both by the pleadings and by the proofs, to which brief reference has been made above. That the mere expectancy of an heir to his ancestor’s estate maybe assigned, and that suth an assignment will be enforced in equity after the death of the ancestor, if made bona fide and for a valuable consideration, admits of no doubt (Quarles v. Quarles, 4 Mass. 680; Kenny v. Tucker, 8 Id. 143; Power’s Appeal, 63 Pa. St. 443; Stover v. Eycleshimer, 46 Barb. 84; 42 N. Y. 620). And that the assignment or release in this case was made to the ancestor himself, and not to any person capable of taking after his death, is not conclusive against the effect of the instrument. The case of Power’s Appeal (supra) was one in which sons had received advancements from their father, and executed releases to him in full of their shares of his estate ; and the court by Read, J., said :

“ An heir or an expectant devisee or legatee may, in the lifetime of the intestate or testator, in equity sell or assign his expectant or contingent interest, whatever it may turn out to be upon the death of the person from whom it may come, which contract, if made upon a valuable consideration, a Court of Equity will enforce. If so, there can be no reason why a father should not make such a contract with a son, which should entirely bar all his claim as an heir to any part of his parent’s estate.”

So, in this case before us, we think it is clearly within the scope of the action, as presented both by the pleadings and the proof, to determine whether such a contract was made between the deceased and the defendant which ought to be enforced in equity. This question was also, we think, fairly presented by the plaintiffs’ requests to find, and without intimating any opinion as to what the finding in that respect should have been, we are clearly of the opinion that the court erred in refusing to find thereon on the ground that the question was not before the court.

For the error here indicated the judgment should be reversed and a new trial granted.

All the judges concurred.

Judgment appealed from reversed, and a new trial, granted, with costs to abide the final award of costs.  