
    Nathan Kenney and Eunice, his Wife, versus Richard D. Tucker.
    Where a child, in consideration of a sum paid him by his father, by way of advancement, releases his claim to his share of the inheritance, although it may appear that the sum so paid was much less than his purparty of his father’s estate at his death would have been worth, it shall bar him of his share or purparty.
    This was a writ of entry, in which the demandants counted upon their own seisin, in right of the wife, of one forty-second part of the lands described in their writ, and upon a disseisin by the tenant.
    The parties submitted the action, or rather the right of the demandants to recover in any form of action, to the determination of the Court, upon a statement of facts, in substance as follows : —
    
      The demandant Eunice Kenney is the daughter of Thomas Cranes Jun., who was the eldest son of Thomas Crane, Sen., and died in the year 1787, intestate, living his father, and leaving the said Eunice and six other children his heirs at law. Thomas Crane. Sen., died in the year 1804, intestate, and seised of the demanded premises; and his real estate, after payment of the debts and charges of administration, exclusive of his widow’s dower, was appraised at the sum *of 3925 dollars. He left six children, viz., Elijah Crane, Ruth Barker, Sarah Bird, Mary Wales, Rebecca Crane, and Abigail Gill, together with the said children of his son Thomas, his heirs at law. The said Thomas Crane, Jun., on the 29th of April, 1774, being then more ■than 21 years of age, by his deed of that date, in consideration that his father and mother had, at his request, and as, and for his advancement in his said father’s and mother’s estate, advanced and paid him the sum of £133, 6s. 8d. lawful money, (equal to 444 dollars 44 cents,) released and quitclaimed to his said father and mother, and their heirs and assigns, forever, “ all such right, estate, title, interest, and demand whatsoever, as the said Thomas Crane, Jun., had, or ought to have, in or to all the estate, real or personal, of the said Thomas Crane and Mary Crane, that now is, or may be hereafter, by any ways or means whatsoever, that would otherwise be mine by heirship; ” The said deed being made, and the said money paid, with the knowledge of the family of the said Thomas, Sen. — A similar deed, and for the like consideration, was afterwards made by the said Elijah Crane. — The estate of the said Thomas Crane, Sen., after his decease, and after payment of his debts, &c., was, in the year 1807, by a warrant from the judge of probate for this county, divided among his children and heirs, (except the said Elijah, and the children and heirs of the said Thomas, Jun.,) who entered and became possessed of the same, agreeably to said division.— The tenant Tucker derives his title and possession from the said children and heirs of Thomas Crane, Sen.
    Upon these facts it was agreed that if, in the opinion of the Court, the demandants were entitled to recover in any form of action, the tenant should suffer judgment to go against him by default; otherwise the demandants were to become nonsuit.
    
      Whitman, for the tenant,
    insisted that the demandants were barred, 1st. By the release of their father, Thomas Crane, Jun., above recited; and, 2d. Also by the proceedings of the Probate Court.
    * Richardson, for the demandants,
    contended that they were not estopped by the distribution made by order of the Probate Court. They were no parties to those proceedings.
    
      nor had they any knowledge of them. — Neither were they bound by their ancestor’s release, which would have no operation to pass rights not existing.
    This case is different from that of Quarles vs. Quarles. 
       In that case the advancement was held by the court to be in full; but neither the value of the whole estate nor of the advancement appeared. Here both were agreed; and it is apparent that the advancement was not near the proportion that would have accrued to Thomas. It could operate only as a partial advancement; and it was the duty of the Probate Court to ascertain the proportion of Thomas’s share that had been advanced him, and to direct the com missioners to make the division accordingly.
    
      
       4 Mass. Rep. 680.
    
   But by the Court.

It is impossible to support any well-founded distinction between Quarles’s case and the case at bar. We are-all of opinion that, upon the facts stated, the tenant is entitled to judgment.

Demandants nonsuit  