Hilton v. Hilton
Joshua Hilton, for Partition v. Otis M. Hilton
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Emery, C. J.
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 advancements, is gov *97 erned by statute. The statute on descent of real estate (R. S. ch. 77) provides, (in sec. 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 sec. 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 sec. 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 Maine, 214; Nesmith v. Dinsmore, 17 N. H. 515; Simpson v. Simpson, 114 Ill. 603 ( 4 N. E. 137 ); Palmer v. Culbertson, 143 N. Y. 213 .
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 Jan’y 31, 1903 and herewith printed as a part of this opinion. By this instrument 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,
*98 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, satisfy 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 whát he acknowledged to be his full lawful share in his father’s estate.
It was contended in argument that the father afterward repented and intended to destroy or cancel the writing and restore the petitioner to his position as heir.- We do not think the evidence supports the contention. True, the respondent at first seemed to have *99 regarded the petitioner as a co-heir. He joined with him in the petition for administration and divided with him a large part of the personal property. He may have done all this under a misapprehension of the effect of the writing. It does not bar him from now setting it up, nor does it prove that it was cancelled by his father. The writing was not destroyed nor cancelled, but came into the possession of the respondent. If the father had the intention to destroy or cancel it he did not carry such intention into effect.
It is finally urged that the arrangement itself was invalid, of no force as an advancement or otherwise, because a part of the consideration was the promise not to institute criminal proceedings against the son. If this suit were an action upon the promise con-» tained in the written instrument the illegality of that promise might be a defense. Illegality of consideration, or even of part of the consideration, will usually prevent the enforcement of an executory contract, but we are not dealing here with an executory contract, with things to be done; we are dealing with an executed contract with things done and past, and their effect. The arrangement was consummated. The petitioner received the advancement, and in exchange parted with^his expectancy of inheritance. If one actually part with property or property rights for an illegal - consideration he cannot for that reason alone reclaim them. Rich v. Hayes, 99 Maine, 51; Worcester v. Eaton, 11 Mass. 368 ; Sturm v. Boker, 150 U. S. 312 .
Petition dismissed with costs.
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