J. F. Dean , and St. John Waddell , for appellants.
The appellants are interested in the proper settlement of the
question of law which arises in reference to the performance of their duties, and as there are several minors interested in the estate, and the responsibility resting on them is very great, they excepted to the decree of the chancellor on the questions involved, and have appealed to this court for the purpose of obtaining a conclusive decision of the same and have assigned error accordingly.
N. A. Taylor , for appellee, Kate N. Callicott.
The chief question presented relates to the view to be taken of the contracts made by the testator with his three older children by his first marriage, viz.: Henry and Calloway Callicott and Minnie Boone, all adult married children. Are they contracts of release and settlement in full of their interests in his estate, as his heirs, in consideration of his present cash payment, and their acceptance of certain amounts as representing their full interest in his estate, and which exclude them from being considered in further distribution, as held by the chancellor; or are they mere receipts for such payments as advancements to them and which leave them free to share further in distribution upon accounting for the amount received and that as of the value when received without interest or accounting for profits derived from its use? If releases, are they valid and enforceable as such in equity in the distribution of the estate?
That these sums of money, $30,000 to each, were not made and received as mere advancements allowing these children to share further in the distribution of his estate in the event of his dying intestate, the only condition in which they would be of any force or in distribution among his heirs, is clearly shown by the papers themselves and the situation and surroundings of the parties that rendered the creation of such papers desirable or important.
If a mere advancement was intended, which is defined to be "an irrevocable gift in prÆsenti of money or property, real or
personal, to a child by a parent to enable the donee to anticipate his inheritance to the extent of the gift" (14 Cyc. B., 162), no such papers were required.
No participation or action on the part of an heir would be required in such case beyond the mere reception of the money or property advanced. He, in such case, need not sign any contract or relinquish or release any right he held as heir. He need not even know at the time the purpose for which the payment was made to him — whether as a gift or something he would be charged for and have to account for in the distribution or not. The father alone knowing this and the true character of the transaction appearing, then or later, as the father might intend and make manifest in any of a variety of ways.
Such is not, quite evidently, the transaction here disclosed between the father and his children in which both participate. Something more than a mere advancement of a certain amount of his estate on his side and its reception on theirs is shown. A contract is made that such payments were to be the full shares of these children in his estate.
The making of such a contract is utterly at variance with the idea of a mere advancement.
In advancements there is always existent, regardless of the amount paid, the possibility of the heir receiving more of the estate in case of the father dying intestate. He may not, in fact, receive more. The amount he has received in the parent's lifetime and the size of the estate to be distributed at his death may prevent it. But that is all that can defeat it. He has not lost or surrendered any right as heir to share in distribution, should the condition of the estate of his father at death intestate enable him to do so, and this is reserved and postponed for future consideration.
But in case of a release there is a present fixing and determination of the amount of the heir's share of the estate, the reception of which as such virtually extinguishes him as an heir of the estate. This was the precise end sought for in
this contract and constitutes the essential difference from an advancement. Newsome v. Cogburn , 30 Ga., 291 ; Bishop v. Davenport , 58 Ill., 106 ; Kinney v. Tucker , 8 Mass., 143 ; Fitch v. Fitch , 8 Pick., 479; Nesmith v. Dinsmore , 17 N. H., 575 ; Parsons v. Ely, 45 Ill., 232 ; Story's Eq. Jur., sec. 10406; Havens v. Thompson , 26 N. J. Eq., 383 ; Kershaw v. Kershaw, 102 Ill., 307 ; Galbraith v. McLain , 84 Ill., 379 .
"An heir may release his expectancy in his father's estate in consideration of a present grant, and such agreement will be enforced, so that he cannot bring what he has received into hotchpot and get more in distribution." 2 Woerner's Law of Administration, *p. 1220, citing cases from Illinois, New Jersey, New Hampshire, Massachusetts, Indiana, West Virginia, California and Tennessee, as follows: Kershaw v. Kershaw , 102 Ill., 307 ; Simpson v. Simpson , 114 Ill., 603 , 609
( 4 N. E., 137 , and 7 N. E., 287 ); Green v. Hathaway , 36 N. J. Eq., 471 ; De Witt v. Brands , 10 Atl. R., 181 (6 Am. St. Rep., 909); Quarles v. Quarles , 4 Mass., 680 ; Havens v. Thompson , 26 N. J., 383 ; Nesmith v. Dinsmore , 17 N. H., 515 , 517 ; Brown v. Brown , 139 Ind., 653 ; Roberts v. Coleman , 37 W. Va., 143 , 155 ; In re Garcelon , 104 Cal., 570
(32 L.R.A., 595); Gove v. Howard , 94 Tenn., 57.7; Coffman v. Coffman , 41 W. Va., 8 ( 23 S. E., 523 ); also to the same effect, 20 Am. Eng. Ency. L. (1st ed.), 750 and note 4 citing Brands v. De Wiit , 44 N. J. Eq., 545 (6 Am. St. Rep., 909); Curtis v. Curtis , 40 Me., 24
(63 Am. Dec., 651); Crum v. Sawyer , 132 Ill., 443 — to the effect that relinquishment is for the benefit of the other heirs, and other cases.
"An heir at law may, for a sufficient consideration, release to his father a share which he might have at the parent's decease in his estate, either real or personal, so that he will be thereby estopped from establishing any claim thereto as one of his heirs at law or next of kin. Such releases, however, when they concern lands, are subject to the statute of frauds, and unless
they are in writing cannot be enforced." 24 Am. Eng. Ency. L. (2d ed.), 30, and notes citing numerous cases.
"According to the weight of authority the release of an expectant share to an ancestor, in consideration of an advancement of further valuable consideration, excludes the heir from participating in the ancestor's estate at his death, provided the person executing the release was not obtained by means of fraud or undue influence." 14 Cyc., 91, and N. 8 and 9, citing numerous, cases from Georgia, Illinois, Kentucky, Massachusetts, New Jersey, North Carolina, Pennsylvania and West Virginia, among them, Barham v. McKneely , 89 Ga.,.812 (15 S. E., 761; Newsome v. Cogburn , 30 Ga., 291 ; Simpson v. Simpson , 114 Ill., 603
( 4 N. E., 137 , and 7 N. E., 287 ); Kershaw v. Kershaw , 102 Ill., 307 ; Galbraith v. McLain , 84 Ill., 379 ; Bishop v. Davenport , 58 Ill., 105 ; Curtis v. Curtis , 40 Me., 24 (63 Am. Dec., 651); Truell v. Eastman , 3 Metc. (Mass.), 121 (37 Am. Dec., 126); Brands v. DeWitt , 44 N. J. Eq., 545 (6 Am. St. Rep. 909); Havens v. Thompson , 26 N. J. Eq., 383 ; Powers' Appeal , 63 Pa. St., 443; Coffman v. Coffman , 41 W. Va., 118
( 23 S. E., 523 ); Roberts v. Coleman , 37 W. Va., 143 ( 13 S. E., 482 ).
In re Garcelon , 104 Cal., 570 , citing among the above cases (32 L.R.A., 595-605), there is a very full discussion of such contracts. While the transaction was not between father and child, as in this case, it was between an aunt and her heir-at-law — complainant — and in the elaborate discussion in the case and in the notes the validity of releases between father and children is fully considered. Most of the cases discussed are of such character.
In the leading case — notwithstanding the statutes in that state, California, to the effect that "a mere expectancy of an heir was not to be deemed an interest of any kind," and that it, "not coupled with an interest could not be transferred" — the court held that such statutes were merely declaratory of the common law on such subject and were never intended to overturn
long established equitable principles sustaining such transactions, and quotes from Story Eq. Jur., vol. 2, sec. 1040 c, and Pom. Eq. Jur. (2d ed.), sec. 168, as follows: —
"So even the naked possibility or expectancy of an heir to an ancestor's estate may become the subject of a contract of sale or settlement; and in such cases, if made bona fide for a valuable consideration, it will be enforced in equity after the death of the ancestor, not indeed as a trust attaching to the estate, but as a right of contract." The court approves of such principle and discusses a number of cases — pages 602-603 — Bacon v. Branham , 33 N. J. Eq., 614 ; Havens v. Thompson , 26 N. J. Eq., 383 ; Brands v. DeWitt , 44 N. J. Eq., 545 (6 Am. St. Rep.); Bishop v. Davenport , 58 Ill., 105 ; Kershaw v. Kershaw , 102 Ill., 307 ; Crum v. Sawyer , 132 Ill., 443 ; Powers' Appeal , 63 Pa., 443 , as holding to the same doctrine. In the principal case the receipt or release by the heir is formal and full; but in a number of cases cited above and in those discussed in the notes it will be seen that they were held to be such though not as full as in the case before the court. The only essential element being the statement that the heir had received his full share of the father's estate.
The notes to the case in 32 L.R.A., 595-605 on the subject of the "Validity of transactions between an heir and his ancestor relating to the former's expectancy" will be found to be exceptionally full and able and as sustaining in the cases cited in nearly all of the states — with few cases to the contrary — the doctrine contended for in this case. A. W. Shands , for appellee Flavia Callicott and C. G. Callicott. At common law it is admitted by all parties that an expectant heir could not release his interest in the estate of his ancestor. The reason (and it is a plausible one) is that no man is heir to those living and it is possible that a child may not become the heir of his parent and therefore he has nothing to
release. This is based upon the most elementary and fundamental principle known to the common law. That this is the rule at common law is universally conceded, as is set out in the beginning of the note on page 578, vol. 65, L.R.A., and I have not, although I have made diligent search of all the authorities, found anywhere an announcement that this is not the rule under the common law. This being true, I contend that without going further we are entitled to a reversal of this case, for it has been many times announced by our court that the common law of England, except where it has been changed by statute, is in force in the state of Mississippi. Hemingway, Admr. , v. Scales , 42 Miss., 1 ; Hollman v. Bennett , 44 Miss., 322 .
Not only was this the rule at common law, and should therefore in the absence of any statute changing the rule in Mississippi be followed by this court, but it is also in this case the reasonable, just and right principle to be followed in order that equity may be done.
It appears that J. C. Callicott had in property not disposed of by his will, not needed for the expenses of the administration, and after payment of all specific legacies, the sum of $140,000 as to which he died intestate. It is now contended by Kate M. Callicott, the widow, who renounced the will, and by the guardian ad litem of the three minor children, that the other children, including Calloway Callicott, have no right to participate in the distribution of this fund, claiming in effect that Calloway Callicott was disinherited; and certainly for this court to hold that he is not entitled to share, the court must ipso facto hold that he was disinherited. Now let's see if he was. The will makes specific provision for the widow and specific provision for the three minor children, using the following language as to Calloway Callicott: —
"Item 4th. I have heretofore given to my two sons, II. M. and Calloway Callicott, the sum of $30,000 each, this being in full of their entire portion and interest in my estate evidenced
by their receipts which may be found with my papers in the safe at Veazey, Clark Co., Coldwater, Miss."
The receipt is in the following language: —
"Coldwater, Miss., May 8th, 1899. Received of J. C. Callicott, my father, $30,000, in full of all claims and demands against him or his estate such as he may provide for me in his will."
The court's special attention is called to the fact that there is no residuary clause in this will. It is held by numerous decisions that disherison will never be worked except in cases where the property is given by the will to some one other than the heir, and it must be given by language that is express or it must be by necessary implication, and language so clear that an intention to the contrary cannot be presumed. Coffman v. Heatnole , 2 L.R.A., 848, which holds that a will revoking all other wills, made by the testator, and declaring that a certain son shall be excluded from participating in the estate because he has become heir to some other property, and the testator is about to make a final settlement giving him as much as the estate would pay to the other legal heirs, is not sufficient to exclude such son from participation in the estate, but is a nullity where no provision is made for giving the estate to anybody else. See also to the same effect: Boisseau v. Aldridge , 5 Leigh., 222; Wright v. Hicks , 12 Ga., 155 , 56 Am. Dec., 457 ; Doe v. Lanius , 3 Ind., 441 , 56 Am. Dec., 518 and notes on p. 521; Blackman v. Gorden , 44 Am. Dec., 241; Hall v. Hall 2 McCord, ch. 269; Roberts v. Ogbourne , 37 Ala., 174 ; Parish v. Parish , 37 Ala., 591 ; Cleveland v. Chamberlain , 22 Md., 308 ; Olmstead v. Olmstead , 4 N. Y., 56 ; Shutt v. Rambo , 57 Pa., 149 ; Bacon's Appeal, Id. , 504; McKenzie v. Jones , 39 Miss., 203 ; Steiner v. Kolb , 57 Pa., 123 ; Wigram on Wills, p. 78.
The language in this will not being sufficient to disinherit, using the word in its technical sense, Calloway Callicott had a right to share in this property of which his father died intestate
unless the receipt is operative to bar him. Upon this question there is a hopeless conflict of authorities in other states, but the question is virgin in Mississippi.
Holmes Holmes , for the infant appellees.
(1) Acceleration of enjoyment of $15,000 legacy: — Vance Estate
(Penn.), 12 L.R.A., 227; Page on Wills, secs. 737, 802; Rawlins Estate , 81 Iowa, 701 ; Marvin v. Sedwith , 111 Ill., 430 ; Slocum v. Hagaman , 176 Ill., 533 ; Ross v. Ross , 85 Md., 430 ; Schoultz Estate , 113 Mich., 592; 2 Law of Wills (Underhill), secs. 866, 878, note.
(2) Validity of Releases. 2 Am. Eng. Dec. in Eq., 229; Garcelon's Estate , 104 Cal., 570 , s.c. 32 L.R.A., 595 and notes cited; Simpson v. Simpson , 114 Ill., 603 .
(3) Boone Legacy — Adeemed — more properly — Satisfied. Underhill on Wills, sec. 440; parol evidence always competent to show satisfaction of legacy by subsequent portion. Proof is full, clear and convincing.
Argued orally by Herbert Holmes, N. A. Taylor, W. J. East, J. C. Holmes , for appellees.