author: Sutliff, J. Brinkerhoff, J.

text:
    Richard H. Rogers and others v. Lucy Tucker and others.
    In a proceeding for partition, under the “ act to provide for the partition of real estate,” in force March 3, 1831, notice given by publication in a newspaper of general circulation in the county, as provided in section three of said act, is a good notice, and all persons in interest, so notified, became thereby parties, and bound by the proceedings thereafter had in the cause.
    Where a person residing on the lapds appeared under such notice, and, on his application, was ordered by the court to become a party in the proceeding for partition, as a tenant in common, and where, upon report of commissioners that the lands could not be divided, and a return of their valuation, the lands were adjudged to such person, on his election to take the same, at their valuation so returned, and a deed being made to him in fee simple by the sheriff, upon the approval and order of court, such person became thereby seized in fee of said lands.
    *Any subsequent controversy as to the respective rights of other tenants or claimants, while proceedings remained unreversed, could only have respect to the price of the lands at which elected by, and adjudged to, such person.
    In such a case, a subsequent discovery that the person so electing and receiving the conveyance of the land, had, in fact, at the time of electing, no interest therein, and not chargeable with fraud, his title so' acquired could not thereby be impeached; and his only consequent liability would be for the payment of that part of the valuation of the lands retained as his distributive share.
    In chancery.
    Reserved in the district court of Erie county.
    The complainants, Richard H. Rogers and Lucy Rogers, his wife, Washington Wood and Emily Wood, his wife, on the 5th of October, 1852, filed their bill in chancery, in the court of common pleas of Erie county, setting forth that said Lucy Rogers and Emily ■Wood are childron of Hope Tucker, deceased, and of his widow, Lucy Tucker, and that they are entitled to two-twelfths of one hundred acres of land, situate in Perkins township, in said county, as legatees of Clark Tucker, under the following alleged state of facts: That Clark Tucker died in 1821, leaving a will containing the following provision : “ All the property to me belonging which shall remain after paying my debts and funeral charges, real and personal, I vest in the hands of Julius House, Esq., to have the whole control and management thereof, as trustee, and with full power and authority to improve the same to the best advantage, and in such manner as he shall deem most conducive to the yearly increase of said property. And the avails of said property shall be yearly, and every year paid, laid out, and expended for the comfortable maintenance and support of Lucy Tucker, now the wife of Hope Tucker, and her children, born, or which shall be born, during the time she shall remain the wife of said Hope, and during the time they shall be minors, under the age of twenty-one years. And if any of the property shall remain after the youngest of said children shall arrive at the age of twenty-one years, then I order said property which shall then remain to be divided among the children of the said Lucy, by the said Hope ^begotten and to be begotten, which shall then be living, as follows : Ttoo shares to each of the sons, and one Bhare to each of the daughters.”
    The bill states that the property so left by Clark Tucker consisted of personal property of the value of about one thousand dollars; and that all, except about two hundred dollars, belonged to said legatees, under said clause of the will. That on the 28th of April the executors, with two hundred dollars of the money so belonging to said legatees, bought of one Elizur Lockwood the one hundred acres of land in question, and took a conveyance thereof, by quitclaim deed, “to said Lucy Tucker, and to her heirs that are now living (they being the children of said Hope Tucker)that the residue of the money was expended by the executors in making improvements on the land, and advancements from time to time to said legatees. The bill further states, that the deed from Lockwood was designed by the executors to be in accordance with said provision of the will, and to give Lucy Tucker and her children the Use of the land until the youngest child should arrive at the age of twenty-one years; and to vest the title in said childron, in the proportion of two shares to each of the sons and one share to each of the daughters, but that, by mistake, the deed was drawn as above-mentioned. It is stated in the bill, that at the time of Clark Tucker’s-death, Lucy Tucker had the following-named children, the fruits-of her marriage with said Hope Tucker: Alden, Salmon, Hope, and Orange (sons); and Roxy, Electa, Lucy, and Emily (daughters); all of whom are still living, and made parties. That at the time of purchasing the land from Lockwood, the family of Hope Tucker moved on to the land, and the said Lucy, with her husband and children, continued to live there and make it their home until the-children respectively came of age, and some of them left; that said Hope Tucker, the husband of Lucy, died in 1852; that the use of the land, with the improvements made by the executors of Clark Tucker, were from the time furnished by the executors as such home, sufficient for the support of the family until the youngest of the children came to be twenty-one years of age, which was on or about the first day of June, 1839; that at that *time there remained all of said land, with the improvements thereon; and that Hope Tucker, the husband of said Lucy, continued to occupy and enjoy the profits of said land until his death.
    The bill states the title of the land to have been derived by Lockwood from John Beatty, with covenants of warranty; and that, in a proceeding instituted March 3, 1831, by Asa Nowlen and others, for partition, in the court of common pleas of Huron county, where-said land then lay, said Nowlen and his co-petitioners were adjudged to be entitled to about four-fourteenths of said land; and as the-land was found not to be susceptible of partition, in proceedings-thereafter had, and said Hope, the husband of Lucy, at his own instance, being made a party, as having an interest, and being tenant and owner of said land, subject only to such adverse claim of said. Nowlen and co-petitioners, their interest was appraised at one hundred and fifty dollars sixty-two cents; and that thereupon said Beatty came forward and paid them that amount, and the court thereupon ordered a conveyance of their interest -to be made to said. Hope Tucker, which conveyance was afterward (May 4,1833) made by deed from the sheriff. The complainants insist, that neither-said Lucy nor her children were made parties to said proceeding, and that said Hope Tucker never paid anything either for the purchase of said lands or to satisfy such adverse claim of said Nowlen and his co-petitioners, and in fact took nothing by the sheriff’s deed as against said complainants. That said Hope, at his death, left no-other heirs than said children of said Lucy, and that he left a last will devising all of said lands to his said son, Orange Tucker, who has ever since continued to reside upon said lands, and refuses to recognize the rights of complainants to any interest therein; and that they have .only come to a knowledge of said will of Clark Tucker, and their rights in the premises, since the death of said Hope Tucker. The bill prays for partition and general relief.
    The answers of the other children, and of Lucy Tucker, deny the claim of the complainants to the lands in question, and- insist that the legal and equitable title was in Hope Tucker, at his decease, *and that he conveyed the same by last will to his son Orange.
    The facts as proved appear in the opinion of the court.

      J. M. Root, for complainants.

      R. B. Sadler, for defendants.
   Sutliff, J.

It appears in proof that Hope Tucker, deceased, and Clark Tucker — under whom complainants claim — were brothers. They formerly resided in Connecticut, but removed into this state at an early day. Hope was somewhat involved in debt, and both for the purpose of paying those debts, which he thought ■ought to be paid, and to prevent a sacrifice of his property by a forced sale, and perhaps to avoid some debts he did not intend to pay, he conveyed his property in Connecticut to his said brother •Clark. This was done with the understanding that Clark should dispose of the same, and pay the just debts, and the balance he was to bring to said Hope in Ohio. Clark, in pursuance'of this .arrangement, sold the property thus conveyed to him, and paid off certain debts of Hope, leaving perhaps a thousand dollars worth of property and money in his hands, which in reality belonged to Hope. This he brought to Ohio, where Hope had previously come. But he refused to account for it to Hope. He often acknowledged he had got the money, but always said Hope’s wife and children should have the benefit of it, and not Hope. This led to controversies and quarrels between them, and Hope often threatened to commence suit to recover the money. Clark died in 1821, leaving his last will and testament, by which he made, among others, the bequest mentioned.

Julius House, .the executor of Clark Tucker, testifies that he purchased the land, at the request of Hope Tucker, at the price of five hundred dollars, sometime in 1823, of Asa Wickman, who held Elizur Lockwood’s contract for the land, and that the deed was to be made by Lockwood; that at the request of Wickman, he (House) paid to John Beatty the price of the land, and instructed Beatty, who was a justice of the peace, to write the *deed, for Lockwood to execute, according to the will of Clark Tucker, in respect of the legacy to Lucy and her children; and he afterward heard that the deed had been made out and given to them, but never saw the deed until after the commencement of this suit.

A copy of the deed executed by Lockwood is produced, and is of the tenor following:

“ In consideration of one hundred dollars received of Lucy Tucker, I do, by these presents, for myself and my heirs, justly and absolutely remise, release, and forever quitclaim unto the. said Lucy Tucker, and to her heirs, that are now living (they being the children of said Hope Tucker, her husband), and assigns forever.
“ To have and to hold the above-described premises unto her, the said Lucy Tucker, and unto her said heirs and assigns, to the only use and behoof of the said Lucy and her said heirs and assigns forever.”

This deed was duly executed as a quitclaim deed. As a reason for his agreeing to accept from Lockwood a mere quitclaim deed, House testifies that Beatty assured him that he knew the title of Lockwood to be perfect; and that such a deed would convey good title.

About the time of the purchase of the land from Wickman, Hope Tucker took possession; and he and his family continued to live upon it thereafter, making it their home, and improving the lands, which have now come to be worth four or five thousand dollars.

Orange Tucker., the youngest child of Lucy, arrived at the age of twenty-one in June, 1840. At- that time it seems his father, Hope Tucker, was quite infirm, and desired him to remain at home, and work and carry on the farming business, and support his parents, with the understanding mutually agreed upon, that at their decease the farm should, by will, be left to him, upon such terms as to remunerate him for such services. The proposition was acceded to by Orange, and seems to have been a satisfactory family arrangement. At least the proof shows no dissatisfaction expressed by any member of the family *at that time; nor by any except the complainants at the present time. ■

At the time of the arrangement so made with Orange, in 1839, Hope Tucker held the fee of the land, under the following circumstances :

On the 3d day of March, 1831, Asa Nowlen, Chauncey Nowlen, and others, filed their petition for partition in the court of common pleas of Huron county, within which county these lands then lay, representing themselves to be seized in fee simple of about four-tenths of twenty-six hundred and seventy-three acres of land in the county, including the lands in question, as tenants in common with others unknown to said petitioners. Notice was duly given by publication, according to the provisions of the statute, and such proceedings had in the case that at the February term of said court, 1832, the court found upon proof made on the hearing of said cause, that the matters stated in the petition were true, and that said petitioners were entitled to partition as prayed for. Thereupon said Beatty and Lockwood and others, on motion, and representing themselves as interested, as tenants in common in certain of the lands sought to be partitioned, were ordered to be made parties to said petition for partition. And at the October term, 1832, said Hope Tucker, coming into court and representing himself interested, and a tenant with the petitioners in certain of the lands so •sought to be partitioned, and such proceedings having been had as to entitle him to elect, elected to take said one hundred acres of #land at its appraised value. As appears from the record, the petitioners thereupon admitted to the court the said title of said Hope Tucker, and of the other electors respectively; and John Beatty as the vendor of the land claimed by Hope Tucker, and certain others, having paid to the petitioners and claimants their proportion of the appraised value of said lands to their full satisfaction, said lands were then and there adjudged by the court to the said Hope Tucker, and to the other electors, respectively; the same to be conveyed by deeds to be made them by the sheriff according to their respective claims and election; and it was ^ordered by the court that they respectively pay their just proportion of the costs to be taxed.

The one hundred acres were appraised at four dollars per acre exclusive of improvements; and at twenty-two hundred and eighty dollars with the improvements. Under the election, Tucker had to pay for the whole hundred-acre tract only four hundred dollars, and of that sum only about four-tenths was due to said Nowlen and his co-petitioners. There is no satisfactory proof that any part of this money, except the costs due from Hope Tucker on the judgment upon his election, was ever paid by him. The weight of proof is that John Beatty, as a former vendor of the land, paid the four-tenths, or as some witnesses say, four-fourteenths of four hundred dollars to which said Nowlen and his co-petitioners were entitled under the decree of the court. And neither the proof nor the circumstances of the case incline us to the belief that any other sum was ever paid by Hope Tucker. It is true the sheriff seems to have executed to him a deed of the one hundred acres under his election and the order of the court. But we do not regard this fact as evidence of the payment of the six-tenths or ten-fourteenths of the four hundred dollars belonging to the owners of the remaining interest in the one hundred acres of land so conveyed to Hope Tucker by the sheriff’s deed.

From all that appears in this case, we therefore find this state of facts:

Hope Tucker, previous to 1820, had put his property — a thousand dollars or upward — in the hands of his brother, Clark, most probably to prevent the same from going into the hands of his creditors, in the State of Connecticut. The two brothers came to Ohio immediately after the transaction. Hope then applied to Clark for the proceeds of the property. Clark refused to pay over, but promised that he would, by will or otherwise, pass the property to the wife and children of Hope. Whether prompted only by self-interest, or a possession of more persistency than evinced by Hope, to keep the property protected from the creditors, is immaterial; but Clark, though often importuned by his brother for the money, would never pay it to him; but left so *much of the property as he had not expended, to the wife and children of Hope, by his last will, at his decease in 1821. At Hope Tucker’s request the executor paid for the land in question with this bequest, which both Hope and his family seem to have regarded as his money justly due from Clark’s estate, rather than as a legacy. The form of the deed from Lockwood, however, as well as the terms of the will, conveyed tho title of the lands to Lucy Tucker, the wife of Hope Tucker, and to their children. And so the title would have remained but for tho judicial proceedings under the petition for partition. Under that proceeding, commenced in 1831, by Asa Nowlen and others, the-court having jurisdiction of both the persons in interest and the land, the subject-matter of that suit, adjudged the land to Hope-Tucker, under their order of sale and his election duly made. Under this judgment, it is true, no deed was due from the sheriff until payment of the money ; but it apjiears the money was paid either by or for Hope Tucker to the satisfaction of the sheriff, who-, thereupon, on the 4th of May, 1833, as admitted by complainants’ counsel, executed his deed of conveyance of said hundred acres, conveying to him the land in fee simple. While so possessed of the title, Hope Tucker, nearly twenty years ago, having become infirm and unable to labor for his support and that of his wife, Lucy, entered into an agreement with his son, Orange, in consideration that Orange would stay upon the farm, and by his services and industry improve and conduct the same, and thereby support his parents during life, to leave him the farm. This agreement, after having been faithfully performed on the part of Orange toward his parents during his father’s life, was also faithfully performed by the father, Hope Tucker, who died in March, 1852, leaving a last will and testament, by which he devised the lands, subject to the support of his wife, and perhaps certain other bequests, to his son, Orange Tucker.

Under this state of facts, as shown by the bill and proof, the complainants pray for partition of said one hundred acres of land, and the two-twelfths thereof be set apart to them to be held in severalty, one-twelfth to each.

*Can this be done under any known rules of law or equity,, applicable to such a state of facts ?

In the first place, it appears from the bill and proof, that the fee of the land is held by Orange Tucker. The complainants do not show themselves, or any of the parties, to “joint tenants, tenants in common, or coparceners of any estáte in the lands ” of which partition is asked; and therefore partition can not be ordered until an estate shall be first acquired by the complainants in the land to be partitioned.

But the bill and proof do not show such an equity in the complainants, in regard to the lands, in the lifetime of their father, Hope Tucker, after he had acquired the legal title'to the land, as át any time to have called upon a court of equity to decree any estate in the lands to complainants. To say nothing of the fact in proof, that Clark Tucker left no property at his decease, except the property put into his hands by Hope Tucker, and which he had during-his life constantly refused to restore to Hope, but promising to leave-it to his family; and, finally, by his will, actually ordering it to be-paid over to the wife and children of Hope, instead of paying it to-Hope, to whom it belonged — it appears that, under a judicial proceeding and judgment, and the deed of the sheriff, executed May 4,. 1833, Hope Tucker acquired a perfect legal title to the lands.

The complainants do not aver, nor is there any proof to show,, that in so acquiring the legal title, Hope Tucker acted, or assumed, to act, or even was understood to have so acquired the title to said lands, on behalf of the complainants, or in the capacity of an agent or trustee for any other parties in interest. It is not even averred that the money paid by John Beatty to the sheriff, as that part of the four hundred dollars which was to be paid to Nowlen and; others by Hope, under his election, was paid at request, or on account of the grantees of Lockwood, or upon his (Beatty’s) covenants in his deed of conveyance, under which said one hundred acres was-then held.

The amount of money due to-Nowlen and others, so claiming the four-tenths of land to be paid them, was, as stated in the bill, one hundred and fifty dollars and sixty-two cents. And*the balanee of the four hundred dollars, beside that amount so paid byBeatty, the complainants aver was not paid by said Hope Tucker. There is an averment, indeed, in the bill that Hope Tucker “ nevería fact paid to Asa Nowlen and his co-petitioners, nor to said Lockwood or Beatty, nor to any other person or persons, anything for-said land, or any part thereof.” But it is not stated in the bill that, the sheriff was not fully paid the amount of the four hundred dollars due under the order of court, as the-purchase money, prior to-the sheriff delivering him the deed of conveyance of said land. Nor is it averred in the bill by complainants, that if Nowlen and-his co-petitions have not been fully paid their just portion of said, four hundred dollars, that the sheriff is not ready and willing still, to pay the same, or that, if the same was not in fact paid to the sheriff, they are not able to obtain the money from the administrators of said Hope, or from the estate of said Lockwood or Beatty. The petition, in short, docs not state a case, nor is there one made-by the proof, either of trust or insolvency, for attempting to charge-the lands, even if Hope Tucker had died intestate, seized of the title.

And if the facts stated and proved are insufficient to make a case; for relief as against Hope Tucker, if still living, much, less do they constitute a case for relief against Orange Tucker, who is now seized of the lands, under an arrangement honestly entered into, and, with fidelity, and nearly twenty year’s service on his part, executed; and that, as admitted by the bill, without any knowledge or notice of the rights of complainants in the premises. Under these circumstances, having executed the contract on his part, by staying upon the farm and conducting it, and affording a support to his parents, the agreed consideration for which Hope Tucker promised to convey him the title to the land, although that conveyance has been made by will instead of deed, in equity Orange should be regarded as a purchaser without notice, and for a valuable consideration. Having then not only and equal equitable claim to the lands, but also the legal estate, Orange’s claim to the lands can not be superseded by that of complainants.

It is true, the complainants aver that they were not made parties *in the judicial proceedings under which the lands were adjudged and conveyed to Hope Tucker, in 1833. The record, how■ever, shows the contrary. A notice was published in a newspaper ■of general circulation in the county, as provided in the third section of the “act to provide for the partition of real estate,” in force March 3, 1831. This was a good notice, and all persons in interest so notified, thereby became parties, and bound by the subsequent proceedings in the cause. Hence it becomes unnecessary to •determine what estate was in fact conveyed by the deed of Lockwood ; for, whether the words heirs and children, in that deed, be ■regarded as words of purchase or limitation, the operation of the judgment and sheriff’s deed of 1833, and the proceedings in parti-tion, would, in either case, pass the legal title to Hope Tucker.

And in regard to the equitable title of the complainants to the land, we can not perceive how, even as against Hope Tucker, in his lifetime, such an equity is shown from the averment that Hope did not pay the appraised value of the land.

In the first place, the record in the partition proceedings shows that Hope claimed to be the proprietor of all the remaining interest, beyond what was held by Nowlen and his co-petitioners, and for which they were paid. If this were so, and we think the court .and sheriff so considered it, Hope was not bound to make any further payment to the sheriff than what was paid in satisfaction of the adverse claimants.

Again, if the complainants were permitted to overthrow the legal title of Hope Tucker so acquired, by showing in themselves a perfect equitable title, have they in fact shown such superior equitable title? The evidence is satisfactory to show that the five hundred dollars paid for the lands by the executor of Clark Tucker was paid at the instance of Hope; that the money was in fact the proceeds of his own property, of which Clark had lived in possession, and by will had attempted to restore to the family of Hope, instead of restoring it to him in accordance with Hope’s frequent request.

Hope directed the money to be paid for the purchase of the farm, and did not direct, nor is there any proof that he knew, *the form of the deed, down to the time of the partition proceedings, or during his life. He had, ever since the purchase cf the land, lived upon it, and continued to regard it as his own; and had, at that time, according to its appraised value, put improvements upon the land worth more than $1,800, and of nearly five times the value of the land.

Under such circumstances — having under judicial proceedings acquired the legal title to the lands, so strongly fortified by 'equity —we can not perceive from the proof in this case such an equity on the part of the complainants as would have been sufficient to supersede the legal title, while held by Hope Tucker. Much less, as already remarked, do the complainants show any equitable title sufficient to supersede the legal and equitable title of Orange Tucker to the lands in question.

The bill must therefore stand dismissed with costs.

Bartley, C. J., and Swan, and Scott, JJ., concurred.

Brinkerhoff, J.

I concur in the decree dismissing the bill. And though I am not prepared to say that I dissent from the view of the case taken by the majority of the court, yet I would prefer that the case should be disposed of on the grounds which I will briefly state:

In the statement of the case, as given by brother Sutliff, it will be seen that the bill seeks to enforce an alleged trust estate, in the one hundred acres of land described, in favor of the complainants; and this trust is claimed to result from the alleged fact that the land was purchased and paid for with money belonging to the estate of Clark Tucker, and bequeathed by him to the complainants.

Now, if the money with which the land was bought was not the 'money of Clark Tucker, then, there is no trust in favor of complainants in the land. This is clear. The question, then, whose was the money with which this land was bought? lies at the foundation of this case. Was it the money of Clark Tucker or of his estate ? If it was not, then there can be no pretense of a trust, and the bill must be dismissed.

*In considering the case it is important to bear in mind that the complainants are not in a court of law, asserting legal rights, but have appealed to a court of equity, claiming to establish and enforce equities. Their claims, then, are to be viewed and adjudged in the light of the principles of equity ; and these principles must be applied to the preliminary question: whose money paid for the land ? as well as to every other question which can-arise in the case.

In equity, then, whose was the money which paid for the land ?' We are agreed that the evidence satisfactorily shows that the land was bought and paid for with money in the hands of Clark Tucker at the time of his death, and which, without consideration, had been received by him from his brother, Hope Tucker, and held in secret and fraudulent trust for the sole purpose, mutually understood between them, of defrauding the creditors of Hope, and to> be ultimately returned to Hope.

Now, on familiar elementary principles, no court of equity would have enforced this fraudulent trust in favor of Hope, as against Clark Tucker — not because Hope had no equity against Clark — not because Clark was entitled in equity and good conscience to keep-the money as his own — not -because it was in equity his — for the contrary of all this was true — but, because ex turpi causa non oritur actio — because the transaction out of which the trust arose being-contrary to good morals, it would he inconsistent with public policy and with the dignity of a court to befoul its hands with the case by any affirmative action in favor of either of the guilty parties; but the court would leave them and their affairs where their own acts or accidental events had placed them. See the remarks of Lord Mansfield in Holman v. Johnson, Oowp. 341, quoted in Broom’s Legal Maxims, 578, 579. On the other hand, had Hope Tucker merely agreed to transfer his property to his brother Clark for the purpose of defrauding his creditors, with a secret trust that it should be returned to him when danger from his creditors had blown over, and had this contract remained unexecuted, a court of equity would refuse to enforce it, not only for the reasons before mentioned, but for the additional reason that such a contract, whether executed *or unexecuted, could never confer on Clark any equity whatsoever as against Hope Tucker. As against him his claim or title would always be against reason and conscience.

As between the parties to such illegal transactions and those who claim under them, we, as a court of equity, can not interfere, from regard to what is due to our own character and to the morals and policy of the law; we are compelled to inertia; but our being necessarily inert, it seems to me, constitutes no good reason why we should be voluntarily blind. W.e are at liberty to see, if not to do; and it requires us but to open our eyes to see that, in equity and good conscience, and as against Hope Tucker, or those who claim under him, Clark Tucker never owned this money. His money never paid for the land in controversy. Of course, then, the foundation fact on which the trust is claimed to arise, is not proved; and, by dismissing the complainants’ bill, we leave the parties where we find them; and this without having anything to do with the illegal transactions of the personages respectively under whom they claim, except to look at and inspect them so far as to ascertain their true character.

It is true, I know no case quite analogous to this in its facts and circumstances, but it comes so clearly, as it seems to me, within the scope of familiar, well settled, and just principles, that I can see no reason why they should not, without hesitation, be applied. And I should prefer to dispose of the case on these principles, as we thereby go to the bottom of the transaction, leave the parties to their strict legal rights, and, by precluding the idea that any equities can exist in favor of those who claim under Clark Tucker as against those who claim under Hope, either in the land or in the fund with which it was purchased, cut off the possibility of future litigation on the ground of supposed equities.


source: Caselaw Access Project

author: Bartley, C. J.

license: Public Domain

text:
    *James Needles, Executor of Philemon Needles, deceased, v. Thomas Needles and others.
    The statutory provision as to advancements in the descent and distribution of estates can have no just application in a case where it is apparent that the testator, who, by his will, had distributed property in different amounts among his children, with the manifest intention of disposing of all his estate, unexpectedly, by the omission of a residuary clause in his will, died intestate as to the residuum of his estate.
    There is but one mode known to our law by which a married woman is authorized to join her husband in the execution of a contract that has reference to real estate, and that is under the formalities and guards against marital influence prescribed by statute. How far the consent of the wife, or her joining her husband, in an arrangement in regard to her separate property, may be regarded as a material element in the transaction, in equity, is a different question.
    The wife’s contingent right by survivorship to her choses in action immediately reducible into possession, may be barred bj' settlement before or after marriage, by actual reduction into possession by the husband, or certain acts held to be equivalent to actual reduction into possession, such as recovery of judgment or decree in the sole name of the husband, the taking of a note or obligation for the debt in the sole'name of the husband, by assignment by the husband for a valuable consideration, or by release.
    The husband’s right of property in the wife’s choses in action, is dependent on the contingency of his reducing them into possession during coverture, and although an assignment for a valuable consideration, by the husband, of the wife’s chose in action capable of immediate reduction into possession, is regarded as a substantial reduction into-possession by him; yet the assignment or transfer of the wife’s reversionary interest, or interest in expectancy, does not amount to a reduction into possession by the husband, inasmuch as such interest in futuro is incapable of immediate reduction into possession, and the effect of the assignment is simply to place the assignee in the same situation with, and no better than that of, the assignor.
    The effect of the law on this subject is that the wife’s dominion or power of disposal, which the husband, by virtue of the marital relation, assumes over the wife’s choses in action, consists not in his succession to the wife’s right of property, but the power of control and management of her choses in action for her benefit, together with the power of acquiring an absolute right of property in the same, so far as they are capable of actual reduction into possession.
    Although, as a general thing, all contingent and executory interests, and contingent estates of inheritance, as well as springing and executory uses, and possibilities coupled with an interest, are assignable and releasable, yet it is a settled rule that what is termed either a naked possibility, or a remote

      possibility, *can not he released, for the reason that a release must be founded on a right in being, either vested or contingent. Consequently, the mere expectancy or chance of succession of an heir apparent to his ancestor’s estate, at his decease, is not the subject-matter of release or assignment at common law.
    Where a father, on making an advancement to one of his sons, took from the son a receipt for the amount advanced, acknowledging the same to be in full of all claims the son could have against his father’s estate, after his-death, as one of his heirs, and stipulating not to set. up any such claim as heir, etc., such agreement can impose no binding obligation, inasmuch as-the estate of a deceased person must pass, either by devise or descent, and the operation of the laws of the state, in this respect, can not be defeated by any kind of executory contracts, made to control the distribution of a man’s estate after his decease.
    Reserved in the district court of Franklin county.
    This is a petition for an order of distribution of assets, in the-hands of the petitioner, as executor of Philemon Needles, deceased.
    The petition recites, that Philemon Needles, the testator, died April 6, 1851, leaving eight children, to wit: James Needles, Rachael, married to Thomas Needles, Anna, married to Littleton R. Gray, Amy, married to Jacob Swisher, Rebecca, married to George Daily, Enoch A. Needles, Lucinda, married to John Keys, and John A. Needles. That on the 23d day of May, 1849, Philemon Needles made his last will and testament, whereby he gave certain specific legacies, as follows, to wit: to his wife, a house and lot, $1,500 in money, and some household furniture, etc.; to Rachael, $5; to Anna, $50 ; to Amy, $50; to James, $50; to John A.', $200 ; to Rebecca, $200 ; to Lucinda, $50; to his grandson Enoch A., son of Enoch A., $200; to the children of his daughter Anna, $2,000; to the children of his daughter Lucinda, $1,800 ; to the children of his daughter Amy, $1,800 ; to the Methodist college in Delaware, $100.
    The testator then directs, that if there be anything left after paying these legacies, then a sum not exceeding $300 is to be paid to-the children of his daughter Rebecca. And the will closes without any residuary clause.

    The petition states, also, that the will has been admitted to probate ; *and that after paying the debts of the estate, and the specific legacies, there is a surplus of about $8,000 in the hands of the executors for further distribution. That Lucinda, wife of John Keys, George Daily, husband of Rebecca, and Littleton R. Gray, husband of Anna, all died before the death of the testator; and that Rebecca afterward married William Mitchell. The petition ■states further, that, on the 13th of August, 1840, the following instrument was executed and delivered to the testator, in his lifetime by John Keys, to wit:
    “Received, of Philemon Needles, two thousand dollars, which I acknowledge is to be in full of all claims I could have against the estate of said Philemon Needles after his death, as one of his heirs, hereby binding myself and my heirs not to set up any further claim. In witness whereof, I have hereunto set my hand and seal, this 13th day of August, a. d. 1840.
    “John Keys, [l. s.]
    “ Witness, Morris Eookes.”
    Also another instrument, in the same words, dated September 24, 1840, signed and sealed by Littleton W. Gray; also another instrument, dated August 9, 1843, in the same woi’ds, signed and sealed by George Dailey and Rebecca Dailey; and also another instrument, dated on the 21st of December, 1844, in the same words, excepting that the sum received is $1,375, instead of $2,000, signed and sealed by Thomas Needles and Rachael Needles; and the petitioner further states that while, on behalf of the daughters whose husbands severally executed the said instruments in writing as aforesaid, it is claimed that an equal distribution, with the other heirs at law of the decedent, should be made in the said overplus not disposed of by the will; on the other hand, the four other children insist, that the instruments in writing aforesaid are valid releases, and that, therefore, the daughters whose husbands executed them are thereby barred from any share in that part of the estate undisposed of by the will.
    Wherefore the petitioner prays the interference of the court, and an order of distribution directing him as to his duty in the premises.

      Bwayne & Baber, for petitioner.

      *John W Andrews and Henry Stanbery, for the children against whom releases are set up.
    P. B. Wilcox, for the four children who claim the whole overplus.
   Bartley, C. J.

The first inquiry, suggested by the facts of this case is, whether the several gifts or donations made by Philemon N eedles to his four sons-in-law, for which he took the several reneipts in question, can be treated as advancements under the statutory regulation on that subject, in this state.

It was held, in the case of Putnam’s Adm’r v. The Heirs of Putnam, 18 Ohio, 347, that the former laws of this state regulating descents and distributions of personal estates, provided for advancements as to real, but not as to personal property. And this construction, although stringent, and resulting in unjust and unequal •distribution of estates, was affirmed by several decisions made afterward. The difficulty was, however, removed by legislation; and the statute now in force applies the rule in relation to advancements •to estates, personal, as well as real. Ohio Stat., revised, 323, section 10. The provision, however, as to advancements, applies only in •case of intestacy. True it is, Philemon Needles died intestate as to the residuum of his estate now sought to be distributed. But it is apparent from the provisions of his will, that he designed and manifestly supposed that he had made a disposition of his whole estate. He made bequests to all his children severally in various amounts, ■and even anticipated a supposed residuum of $300 in his distribution. The several advancements which had been made to his four •sons-in-law, for which he had taken their said receipts, must have been in his contemplation when he made his will. How much he had previously advanced to his other children does not appear in this case. But it is fair to presume, that in view of all his previous advancements, he made such a distribution of his property, by his will, as he deemed just and proper. In such a case, therefore, although the testator had, unexpectedly and beyond his own anticipation, died intestate, as to a residuum of his estate, the *statutory provision as to advancements could have no just application; and whether it could apply to any case of partial intestacy, where the testator knowingly and designedly made a testamentary disposition of only a part of his property, it is not necessary to consider in this case.

It is insisted, however, that the interest in expectation, or hoped-for inheritance of the daughters, Eachel, Anna, Eebecca, and .Lucinda, from their father’s estate, was released by their several husbands, by virtue of the instruments of writing executed by them respectively to the father, whereby each acknowledged the receipt of the advancement made, and agreed with the father not to set up any further claim against his estate, as one of his heirs, after his decease. And this presents the question of the power of the husband to release the wife’s bare possibility, or expectation of inheritance from her ancestor.

• One of the daughters, Lucinda, and two of the sons-in-law, Dailey and G-ray, died before the death of the ancestor, and, therefore, before any actual right or interest could have ve'sted in the wife, by inheritance. The wife of George Dailey and the wife of Thomas Needles, respectively, united with their husbands in signing the receipts. This, however, can not affect the question, or give any legal vitality to the instruments, if they had none without it. If the husband.had the power to release, or, by contract, to bar this mere expectancy of the wife, it was by virtue of his right and control over his wife’s personal estate, and not by means of the wife’s consenting thereto. It may be that, in a disposition of, or an arrangement in regard to, a wife’s property, by the husband, made-with a view to the wife’s separate use or advantage, the consent of the wife might, in a court of equity, be treated as a material element in the transaction. But in the release or assignment of the-wife’s choses in action by the husband, for his own interest, the wife’s uniting with the husband in the execution of the contract, is-a matter of no legal consequence whatsoever: In regard to the personal estate of- the wife, not held in trust for her separate use, the-husband represents the wife, exercises all her authority; and indeed,, in contemplation of law, the legal existence of the wife in that regard, is merged in *that of the husband. There is but one-mode known to our law by which a married woman is authorized to join her husband in the execution of a contract, and that has-' reference to real estate, and is done under certain formalities and guards against marital influence, prescribed by statute, not attempted to be followed in this case. > It was held 'in Stamper v. Barker, 5 Madd. C. C. 157, that the wife could neither be barred of' her right by survivorship to her reversionai’y interests, by her consent in court in favor of her husband, nor could she, upon separation from her husband, bind herself by deed, stipulating that he-should have a certain part of her contingent property when it should fall into possession.

The wife’s consent, even in court, or her joining her husband in an assignment or deed for her reversionary interests, has been held ineffectual as to • her right of survivorship ‘ in numerous cases. Hornsby v. Lee, 2 Madd. C. C. 16; Woollands v. Croucher, 12 Ves. 174; Pickard v. Roberts, 3 Madd. C. C. 384; White v. St. Barbe, 1 Ves. & B. 405. It is by force of the statute in this state that the-wife’s interest in property is affected, at law, by'her joining in the-execution of a conveyance. The inquiry in this- case therefore involves the question of the extent of the power of disposal, by the-husband, of the wife’s contingent interest, or mere expectancy.

It appears to be well settled that the wife’s contingent right by survivorship to her choses in action, immediately reducible into-possession, may be barred by settlement before or after marriage by actual reduction into possession, or certain acts held to be equivalent to actual reduction into possession-; such as the recovery of a-judgment or decree in the sole name of the husband; the taking' of a note or obligation for the debt in the sole name of the husband; by an assignment by the husband for a valuable consideration; or by release. It appears to have been held in England at one time that an assignment for a valuable consideration of the wife’s chosesin action, presently reducible into possession, would not defeat the-right of the wife . by survivorship. Burnett v. Kinaston, Freem. 241. But for a series of years past, it appears to have been settled in that country, that an assignment, or release for a valuable consideration, by the *husband, of the wife’s choses in action immediately reducible into possession, would bar her title by survivorship. Clancy’s Husband and Wife, 150. But the more recent English equity cases are wholly irreconcilable with the former decisions on the subject of the power of the husband to defeat, by assignment, the contingent right of the wife by survivorship to her' reversionary interests, or choses in action not immediately reducible into possession. In Chandos v. Talbot, 2 P. Wms. 601; Bates v. Dandy, 2 Atk. 206; Hawkins v. Obyn, Ib. 549; it was held that the wife’s reversionary or contingent interest, or the possibility of a-term, or the specific possibility of the wife, may be released or assigned by the husband, for a valuable consideration, so as to defeat her title by survivorship. But a different doctrine was held to belaw in Hornsby v. Lee, 2 Madd. Ch. 16; in Purdew v. Jackson, 1 Russell, 70; in Honner v. Morton, 3 Id. 65; and in Mitford v. Mitford, 9 Ves. 87. In the last-mentioned case, Sir William Grant disputed the soundness of the rule, that the husband’s assignment, for a valuable consideration passed the wife’s chose in action, freed' from her contingent right of survivorship, upon the ground that, in such case, the purchaser would take a greater right than the husband had. In Hornsby v. Lee, Sir Thomas Plummer held that the ■husband’s right to the wife’s choses in action was dependent on the •contingency of his reducing them to possession during coverture; that a deed assigning a reversionary interest is not an actual reduction into possession, because it is impossible to reduce a reversionary interest into possession; and that it could not be a constructive reduction into possession, because its only effect is to place the assignee in the same situation as the assignor; that is, if the husband survive the wife, the assignee would retain the property; if, on the other hand, the wife survive, while the interest continues reversionary, she is entitled to the property.

It is proper to observe, that our attention is directed to the question of the wife’s right of survivorship, and the extent of the husband’s power of disposal to affect it by assignment or release. We have nothing to do at present with the question, which is of fre■quent occurrence in chancery cases, touching the extent to which *the husband, by assignment of the wife’s property, may affect what is termed the wife’s equity, to a suitable provision out of the property for the support of herself and her children. That is :a subject wholly disconnected with the question now before us, and presents very different rules for consideration.

In the case of Purdew v. Jackson, above cited, where the question directly arose as to the power of the husband to bar the wife’s right by survivorship to such reversionary interest, by an assignment for a valuable consideration, the authority of the decision in Hornsby v. JDee was strenuously denied; and the master of the rolls, in' affirming his views expressed in the former case, after a patient hearing and searching investigation of the whole subject, said:

“The law of marriage gives the wife’s choses in action to the husband, on condition that he reduce them to possession during its •continuance; if he die before his wife, without having done so, she takes them by survivorship. How, then, his honor asks, can he bar her right of survivorship by an act which is not a reduction into possession, and that, too, at a time when it is impossible, from the nature of the reversionary chose in action, that it should be reduced into possession? That if it be said that her right may be barred by something short of a reduction into possession, namely, an assignment for valuable consideration, we must alter the doctrine laid down in our books. It will no longer be true, that the husband shall not have the chattels personal of the wife lying in action, unless he reduce them into possession during the marriage. That the effect of an assignment tor a valuable consideration, operates no otherwise than by putting the assignee in the place of the assignor; that the assignor can not give to another a power which he himself does not possess; and that, therefore, where the wife has a chose in action, which the husband himself can not recover, he can not assign over to another the right to reduce it into possession. That the husband’s right is merely a right to obtain possession of the subject, when the period arrives at which the wife-is entitled to the possession of it; and if he die in the meantime, leaving his wife surviving, his right is gone, and the right of the surviving wife takes effect. The assignee for valuable consideration must take the right as the husband himself had it; he buys-the chance of the husband’s outliving the wife, or of the reversionary chose in action falling into possession during coverture, and he must wait to see how the event tons out. That in this case the husband had died before the chose in action had been reduced into possession ; the assignee had, therefore, lost all chance of recovering it, and the wife took it by her right of survivorship.”'

This doctrine was reaffirmed in Morley v. Wright, 11 Ves. 12; and also in Ellison v. Elwin, 13 Sim. 309. And *again, in Honner v. Morton, above cited, Lord Channcellor Lyndhurst fully sustained this doctrine, which had been declared by the successive-masters of the rolls, Lord Alvanley, Sir William Grant, and Sir Thomas Plummer, as to the reversionary interest of the wife, and in doing so, he took a distinction between a case where the husband had the power, at the time of the assignment, of reducing the chose in action or interest into immediate possession, and where he had not — holding that, in the former case, the assignment ought, in equity, to be regarded as a constructive reduction of the property into possession; for as he had the power of reduction inte possession, and the assignment amounted to an agreement to do it, equity would regard that as being done which the party had agreed to do. This doctrine, however, so well supported by authority and by reason, and apparently resting on ground ineontestible, was, strenuously and with laborious research, controverted by Chief Justice Gibson, in the case of Siter and another, guardians-of Jordan, 4 Rawle, 468, wherein he contended that marriage worked not only a transfer to the husband of the wife’s choses in action reduced to possession during coverture, but a transfer of the wife’s dominion and power of disposal, so that whatever interest she might have assigned, if a feme sole, the husband could assign or release for a valuable consideration ; and that the distinction between vested and contingent or reversionary interests of the wife, in respect to the marital dominion and power of transfer over it, made in the recent English cases, is without foundation. But the extensive and critical reviews of the English cases, by Chief Justice Gibson, was not necessary to the decision of his case, and -could only have been designed to expose a supposed erroneous theory in the English decisions, inasmuch as the authority of the ■case of Siter is to the effect only, and can go .no further, than that the assignment of a wife’s chose in action, by her first husband, to trustees, for the benefit of the wife and children, and to place it beyond the power of waste by a subsequent husband, was meri torious and valid in equity. The views of Chief Justice Gibson -on this subject, however, have been adopted in subsequent decisions in Pennsylvania, in which they were applicable, and reluctantly ^followed in the recent case of Webb’s Appeal, 21 'Penn. St. 248, wherein the remark is made in the opinion of the ■court: “ However averse to this conclusion some of us might be, if the question were an open one, we remember that our office is jus dicere, and not jus dare; and we bow to authorities which we .are bound to respect.”

This doctrine, however, appears to be peculiar to Pennsylvania. I have not been able to learn that it has been recognized in any well-considered case in either of the other states in this country. 'The case of Tuttle v. Fowler, 22 Conn., goes no further than to decide that the husband’s assignment of the wife’s chose in action capable of immediate reduction into possession, was substantially such a reduction into possession by the husband as to defeat the wife’s right by survivorship.

The doctrine of the decisions in England above mentioned was recognized as law by the court of errors and appeals in Mississippi, in the case of Sale v. Saunders, 24 Miss. 25; and has been followed in numerous other cases in this country.

And the distinguished law-writer, Mr. Clancy, in his treatise on the rights, duties, and liabilities of husband and wife, sustains the ■doctrine of the English decisions in relation to the wife’s right of ¡survivorship in her contingent or reversionary estate, and denies that the power of disposal by the husband, so as to bar the rights •of the wife by an assignment for a valuable consideration, is absolute. The effect of the law upon this subject would seem to be, that the wife’s dominion, or power of disposal, which the husband, by virtue of the marital relation,' assumes over the wife’s choses in •action, consists, not in his succession to the wife’s right of property, but the power of control and management of her choses in action for the wife’s benefit, together with the power of acquiring an absolute right of property in the same, so far as they are capable of reduction into possession.

There can be no ground for a distinction between the power of the husband to bar the wife’s contingent right of survivorship by assignment, and that of doing the same thing by release. If the husband could not by assignment transfer to the assignee any greater interest than that which belonged to him, he certainly *could not by release to the releasee. The reason which controls in the one case, must prevail as to the other. And where the husband has not the power of disposal to affect the wife’s right by survivor-ship by assignment, he could not affect it by release.

This view of the law is decisive of this case. The interests in expectancy of the four daughters of Philemon Needles, whose'husbands executed the instruments in the petition mentioned, were not, of course, capable of reduction into possession at the time of the execution of the instruments, and were not, by either of the husbands, reduced into possession afterward. And in the proceeding now pending, the claim to the inheritance is set up in behalf of each of the wives, and not of -that of either of the husbands.

It has been urged in this case, that where a feme covert has a right which, by possibility, may happen during coverture, the husband may release it, or covenant to release it, for value, and bona fide, so as to bind the feme forever. And this raises the inquiry whether there was any right or interest which could have been the subject-matter of release at the time of the execution of the instruments in question. . It has been said that, “ Where the wife hath any right or duty which by possibility may happen during the coverture, the husband may, by release, discharge it.” Sheppard’s Touchstone, 151. It is true, as a general thing, that all contingent and executory interests, and contingent estates of inheritance, as well as springing and executory uses and possibilities coupled with an interest, are assignable and releasable. But it is also a general rule, that a naked or remote possibility can not be released, for the reason that a release must be founded on a right in being, vested or contingent. 8 Bacon’s Abr. 280; Pellitrean v. Jackson, 11 Wend. 110. Where there is a present existing right, although to take effect iii future, and even then only on a contingency, it may be released. 9 Johns. 123. But in case of a mere possibility, or a remote possibility, which is termed in law a possibility on a possibility (4 Kent Com. 206), there is no right in being which can be the subject of release.

“ The word possibility,” says Smith on Real and Personal Property, *“ has a general sense, in which it includes even executory interests, which are the objects of limitation. But in its more specific sense, it is that kind of contingent benefit which is neither the object of a limitation, like an executory interest, nor is founded in any lost, but recoverable seizin, like a right of entry. And what is termed a bare or mere possibility, signifies nothing more than an expectancy, which is specifically applied to a mere hope of succession unfounded in any limitation, provision, trust, or legal act whatever ; such as the hope which an heir, apparent or presumptive, has-■of succeeding to the ancestor’s estate.” Smith on Real and Personal Property, 192. And it appears to be well settled, that a contingent interest of a person unascertained, or a mere possibility as-distinguished from a contingent interest in a person who is ascertained, or the mere hope or chance of succession of an heir apparent,, can not be released. Shephard’s Touch. 322, 328.

It is manifest, therefore, that at the time of the execution of the' instruments in question, there was no right or interest in being which could have been the subject-matter of release. But it is said, that although such a release or assignment of the mere jiossibilities or expectancies of heirs apparent, is wholly invalid at law, yet that a court of equity will regard it, and give effect to it, as a contract to-release, when the interest becomes vested, and consequently that when the interest does so become vested, the claim of the releaseewill be enforced, not indeed as a trust, but as a right under a contract. Or, in other words, that the hope or chance of succession would be barred by estoppel. It might be a sufficient answer to-this to say that no claim is set up, in this 2n-oceeding, in behalf of either of the husbands to any interest in his wife’s inheritance from her father’s estate; and that the instruments in question, if regarded in equity as contracts to be enforced, must be treated as the contract solely of each of the husbands, and as creating no estoppel against the wife. But for my own part, I feel no hesitation in questioning the validity of such a contract. What is the real character of the contract before us ? Philemon Needles, in his lifetime, made certain advancements to four of his daughters, and took from the husband *of each a receipt for the amount advanced, in which the husband acknowledged the same “ to be in full of all claims he could! have against the estate of said Philemon Needles, after his death,, as one of his heirs," and stipulating for himself and his heirs, “ not to set up any further claim.". Where is the mutuality, either of consideration or of obligation for this agreement? The advancement was a voluntary act; and whether Philemon Needles should thereafter give any more of his property to these children depended on his own pleasure. He could, by his will, so distribute his property as to wholly deprive them of any further share in his estate, or he-could, as he actually did subsequently choose to do, in the distribution of his property, by will, give them a further share in his estate. The stipulation only conceded to Philemon Needles that which was-an inherent legal.right of his own in the disposition of his own. property. The real nature of the contract was such as to impose no binding legal obligation. If Philemon Needles chose afterward to make further donations to these children, this contract could not prevent their accepting it; and if he was disposed to give all the residue of his property to others, he had the legal right and full power so to do without any such agreement.

But aside from these considerations, there is an insuperable obstacle in the way of giving effect to such a contract. The laws of the state have provided the mode for the distribution of a man’s, property after his decease: All dominion of the owner over it ceases with his life; and it must be distributed, according to the-bequests of his will, if he has chosen to make a testamentary disposition of it, and if not, then according to the law of descent and-distribution. . The owner is always allowed to provide by will for-the division and distribution of his property after his decease. And the law has provided regulations, so far as the distribution of the-estates of intestates can be affected by previous advancements to-children. A man can not provide for the division which shall be-made of his property after his death, by executory contracts with, his children, instead of last will and testament. And to allow an-intestate to control the course of descent and distribution by mere executory contracts with his children, ^during his life, would be to allow him to set aside the laws of the state. The property of a deceased person must pass by devise or descent. And the operation of the laws of the land in this respect can not be defeated by any kind of executory contracts, made for the purpose of controlling or affecting the distribution of a man’s property after his death, This opinion is in accordance with the views expressed by this court, in the case of Crane v. Doty, 1 Ohio St. 279.

We have been referred to the case of Firestone v. Firestone, 2 Ohio St. 415, as an authority to sustain the validity of such a contract. Although some of the reasoning of the opinion in that case would seem to favor such a contract, yet the effect of that case is certainly not in favor of the enforcement of such an executory contract, inasmuch as the decision is expressly placed upon the ground that the contract had been fully and specifically executed by an abandonment on the part of the son of all claim on the estate, after the death of the father.

The case of Ives v. Metcalfe, 1 Atk. 63, is relied on as sustaining such a contract. That case is as follows: A and his wife coveenanted in articles before marriage, in consideration of £2,000, the wife’s portion, to release all the right that might accrue to them ■out of her father’s personal estate, by the custom of London. The lord chancellor, in sustaining this contract, says: “ It is highly reasonable that such kind of articles should be carried into execution, and that when a father is bountiful to his children in his lifetime, that he should have his affairs settled to his own satisfaction.” This reason would be wholly futile under the laws of Ohio, for a man can have his affairs settled to his own satisfaction here by making his will, without relying upon any such .executory contract. But the lord chancellor adds : “ I found my opinion, too, on an old law well known in this city by the name of Jud’s law, whereby a husband was authorized to agree with the father for the wife, though she was under age.” There are numerous other cases ¡bearing some analogy to this decided on the peculiar custom of London, and, therefore, entitled to no weight in the case before us.

In the case of Morris v. Burroughs, 1 Atk. 398, the lord ^chancellor refused to enforce a somewhat similar contract, saying, that agreements of this kind ought not to receive encouragement. Other decisions in England, however, have been referred to, which go iar to sustain such agreements.

The case of Quarles et al. v. Quarles, 4 Mass. 680, to which reference has been made, turned on the question of an advancement under the statute of Massachusetts, and is, therefore, not an authority against the conclusion expressed in this case.

Reference has been made to a class of cases, where one of the ■heirs presumptive has purchased and paid a valuable consideration for the expectancy of another of the heirs in the ancestor’s estate; and where two of the children have contracted with each other, to ■divide equally whatever may come to them from an ancestor by devise or descent, in which such contracts have been sustained. .Such is the effect of several of the cases, English and American, referred to by counsel in this case. Trull v. Eastman and Wife, 3 Met. 121; Fitch v. Fitch, 8 Pick. 480; Beckley v. Newland, 2 P. Wms. 182. These cases, however, turn upon a wholly different principle from that of the case before us, and bear no analogy whatever to it. Where two of the children contract with each other in regard to their expectancy from their ancestor, they stand upon equal footing, and although such contract can not operate by way of assignment or release, yet where a valuable consideration has been paid, it may operate by way of estoppel, or be enforced in equity.

But in no view which I can take of such an executory contract between the ancestor and the heir expectant, can it be sustained on any clear and satisfactory ground.

Ordered that an equal distribution be made among all the heirs .at law of Philemon Needles, deceased, of the residuum of his estate undisposed of by will.

Brinkerhoff, Bowen, and Scott, JJ., concurred.

Swan, T., having been of counsel, did not sit.


author: Sutliff, J.

text:
    *Oliver N. Bostwick, Edward Kent, and Charles Atwood v. William H. Raymond and Curtis L. Avery.
    Under the 15th section of the chancery practice act of March 14, 1831, as amended by the act of February 25, 1848, it is not sufficient to charge that an insolvent debtor, shortly previous to a suit at law for the recovery of a claim against him, by the petitioner, had sold, transferred, and'disposed of his store of goods, and all of his property, so as to delay and hinder the plaintiff in collecting said claim.
    The statute only applies to cases of sale, transfer, or disposal of property during the pendency of a suit previously commenced.

      In chancery.
    Reserved in Richland county.
    The complainants ñled-their bill in chancery September 18,1851,. under the third clause of the first section of the “ act to amend the act directing the mode of proceeding in chancery,” in connection with the 15th section of the act thereby amended.
    Section 15 of the amended act (Swan’s Stat. of 1841, 703,) provides as follows:
    “ When a suit at law for the recovery of money or damages for any cause of action which would survive to or against the personal' representatives of the plaintiff or defendant, or whenever a suit in chancery for the recovery of a specific sum of money or damages, shall be pending, in either of the courts aforesaid, against a nonresident defendant, or against a resident defendant, who has, during the pendency of said suits, either secretly departed out of the jurisdiction of the court, or secreted himself or property within the-same, so that the ordinary process of law can not be served on either, and there should be any person or persons resident within such jurisdiction who is, or are, indebted to, or has in possession goods and chattels, rights, credits, moneys, or effects belonging to. such non-resident or secreting defendant, the said plaintiff at law or complainant in chancery may file a petition against the person so indebted or having in possession the goods and chattels, rights, credits, moneys, or effects of such non-resident or secreting defendant, annexing an affidavit of the truth of the allegations therein contained, and of the amount of the debt or damages by him claimed; and the court may in their discretion enjoin such other person or persons from paying over, conveying away, or secreting such debts by him owing to such non-resident or secreting defendant, or his goods and chattels, rights, credits, moneys, or effects-, until the final judgment at law or decree in chancery can be had in such former cause. And the court on final hearing shall make-such final order or decree between the parties as they shall think just and equitable.”
    *It is provided in the first section of the amendatory act (46 General Laws, 96), that if the plaintiff or complainant in the-pending suit, his agent or attorney “ shall have reason to believe and shall in fact believe ” -.
    . . . “3. That such defendant is about to convey, assign, remove, conceal, or dispose of his property with intent, or so as to defraud, hinder, or delay his creditors, . . . the pendency of such suit, together with the existence of either of the causes above-enumerated, shall entitle the plaintiff or complainant in such suit. to file his bill or petition against the defendant, his debtors, and those having íd their custody any of his property, money, or effects, in the same way as is provided in the 15th section of the act to which this is an amendment.”
    The bill states that the complainants, previous to filing their bill, •and on the same day, had commenced an action of assumpsit against Raymond for $234.56, balance due them upon book-account and two promissory notes made by Raymond, and particularly described.
    The bill further states that said Raymond has been engaged for some time past in the business of merchandising, at Mansfield, in said county, and has had on hand an extensive assortment of goods; “but that he has recently, and within the last few days, sold, assigned, transferred, and disposed of the whole of said stock of goods to one Curtiss L. Avery, of said Richland county,” and whom the bill represents as indebted to Raymond for the purchase price of the goods.
    The bill further charges “ that said Raymond has sold, assigned, transferred, and disposed of said stock of goods so as to delay and •hinder the complainants in the collection of their debt aforesaid;” that he has no other property subject to execution; and that he has refused, upon request, to transfer to them so much of the indebtedness of said Avery for the goods, as would be sufficient to •satisfy their said claim.
    The bill prays that, on final hearing, Avery may be required to pay to complainants, from his indebtedness to Raymond, said amount due from Raymond to complainants; and for general relief.
    Raymond and Avery filed separate answers, and state substantially *the same facts, viz: That on the 15th day of September, 1851, Raymond sold to Avery the goods mentioned for $3,663.62, •of which amount Avery was jp pay $2,359.97 in discharge of spe-r cific mortgage liens upon the goods; and for the remainder of thó purchase money, h.e executed his promissory note of that date, payable to Raymond, for $1,303.65 in twelve months; and that Raymond at the same time indorsed and delivered the note to C. T. & J.. Sherman, attorneys, to be collected, and after paying their charges, to be distributed pro rata among all his creditors.

      Geo. W. Geddes, for .complainants, cited Nicholson v. Leavitt,

      vol. 1, No. 3, Am. Law Reg. 181; Douglass v. Huston, 6 Ohio, 156; Miers & Coulson v. Zanesville and Maysville Turnpike Co.,. 13 Ohio, 197; Bowry & Sons v. Odell & Brother, 4 Ohio St. 627.

      John Sherman, for defendants.
   Sutliff, J.

Depositions taken on the part of defendants corroborate the statement of facts contained in the answers ; and no proof has been taken by complainants to controvert their statements, nor are they even traversed by a replication.

The facts of the case as stated in the answer must therefore be regarded as true. And the case therefore presents the single question : Is the sale and transfer of the goods on the part of Raymond, a case within the statutes mentioned ?

The bill does not charge, nor does the proof show, any fraud in the transaction on the part of Raymond in selling, or on the part of Avery in buying, the goods. The only clause of the statute, therefore, under which such proceeding could be sustained, is the following:

“ That such defendant is about to convey, assign, remove, conceal, or dispose of his property, with intent, or so as to defraud, hinder, or delay his creditors.”

Under this clause of the amendatory statute, the extreme limit to which a creditor could go to charge the particular fund or property, without charging actual fraud, would be, we apprehend, *to state in his bill a case where his debtor is about to dispose of his property so as to hinder and delay his creditor in the collection of his debt.

But this bill by no means shows such a case. Its language is not that Raymond is about to convey or dispose of his property so as to hinder or delay his creditors, but “ that he has recently, and within the last few days, sold, assigned, transferred, and disposed of the whole of said stock of goods,” etc.

It is therefore evident that there is no case made in the bill for relief under the statute; nor is such a case at all shown by the evidence.

The bill must therefore stand dismissed, with costs.

Bartley, C. J., and Swan and Scott, JJ., concurred.

Brinkerhoee, J., having formerly been of counsel in the case, did not sit.


text:
    Isaac Shelby, Jun., and the Illinois and Ohio Coal Company v. Benjamin F. Hoffman.
    Where a suit has been instituted in a state court, by a citizen of the state, against a citizen of another state, for the recovery of over $500, and the defendant, at the time of entering his appearance, files his petition, offers surety, and complies with the provisions of the act of Congress for the removal of the cause for trial into the circuit court of the United States; and the state court thereupon, refusing to accept the surety and stay further proceedings, proceeds to trial, and renders judgment in the case against the defendant: Held—
    1. That, for the purpose of jurisdiction and removal, in such ease, a company incorporated by, and doing business within another state, is to be regarded as a citizen of such other state.
    2. That, independent of the assumed authority of Congress to prescribe the duties of a state court, the course of practice so prescribed by the act of Congress having been uniformly recognized and followed by the courts' of this state ever since their organization, as proper and convenient in such cases, the same has thereby become established as a rule of practice of the courts of this state.
    *3. That, in such a case, the proper remedy for the defendant is the ordinary one of petition in error, the facts being made to appear upon the record by plea to the jurisdiction, or by bill of exceptions.
    4. That the extraordinary remedy of a peremptory mandamus, after judgment so rendered by the state court, is neither an appropriate nor adequate remedy in the case.
    Motion for a peremptory mandamus.

      Wadsworth & Orr, for the relators.
   Sutliff, J.

The facts of the case, as they appear from the relators’ petition, alternative writ, and answer thereto, are as follows :

At the May term, 1857, of the court of common pleas of Columbiana county, held by the defendant, one of the judges of the ninth judicial district, two causes were pending in that eourt; one entitled Jacob N. McCullough, Duncan McDonald, E. W. Roby, Daniel McDonald, and Selah Chamberlain, partners under the name of Chamberlain, McDonald & Co., plaintiffs, v. Isaac Shelby, Jun., Illinois and Ohio Coal Company, defendants; and the other entitled Elizabeth McIntosh, administratrix of the estate of John S. McIntosh, deceased, plaintiff, v. Isaac Shelby, Jun., Illinois and Ohio Coal Company, Adam Kuhn and William S. McIntosh, and Philip S. McIntosh, partners under the name of W. S. & P. S. McIntosh, defendants.

Isaac Shelby, Jun., was, at the commencement of the suit, and continues to be, a citizen and resident of the State of Illinois; and the Illinois and Ohio Coal Company is an association of persons incorporated and doing business within the State of Illinois. The plaintiffs in each of said suits were citizens of the State Ohio; and the matters in dispute between the parties in each of said actions, constituting the claim of plaintiffs, as set forth in their petition, exceeds in value the sum of five hundred dollars, exclusive of costs. Upon the day the relators entered their appearance in said actions at said May term of that court, so held by defendant, they filed their petitions, with bonds conditioned according to law, setting forth the foregoing facts, and praying *for the removal of said causes for trial into the next circuit court of the United States, to be held in the northern district of Ohio, within which said Columbiana county is situate, agreeably to the provisions of the act of Congress in such cases provided. Without any defense being made to their said petitions for removal, or to the' granting the prayer thereof, the defendant so then holding said court of common pleas, refused to fix the amount of the penalty for said bonds, or to allow a change of jurisdiction or removal of the causes as prayed for, and refused to give the relators the benefit of said act of Congress, but proceeded to render judgment in each of said cases, as upon default. No proof was heard by the court of the truth of the allegations of the petitions; nor does it appear that they were denied; but the defendant having gained jurisdiction of the cases, and no satisfactory reason, as it seems, being given to him for their removal, insisted upon the right to exercise the jurisdiction which he had before acquired, and so' proceeded to render judgment therein.

As reasons, among others, for not certifying the causes to the circuit court, it is suggested, that only part of the defendant's in one of the causes were citizens of another -state, and that they were made parties, some by summons, and others by notice, and appeared respectively at different times; but it is not insisted that the relators were not citizens of another State; nor that the Illinois and Ohio Coal Company was not a corporation created by the legislature of the State of Illinois, and doing business in that state. 'The other party defendant in that case, it is admitted, was a citizen of Illinois; and that all the plaintiffs in each cause were citizens of Ohio. It is also suggested that there was no proof made •of the fact that the matter in controversy, or dispute, in the cases, exceeded the sum of $500, exclusive of costs; the only evidence being the sum demanded by plaintiffs in their petition; and that it did not appear that plaintiffs expected to recover that amount, and were not in fact willing to accept a less sum than the sum claimed in their petition.

The removal of causes from the state courts in certain cases, is provided for by the act of Congress, passed September -24, 1789, as follows:

*“Seo. 12. Ifasuilbe commenced in anystate court against any alien, or by a citizen of the state in which the suit is brought, •against a citizen of another state, and the matter in dispute exceeds the aforesaid sum of' five hundred dollars, exclusive of costs, to be made to appear to the satisfaction of the court, and the defendant shall, at the time of entering his appearance in such state court, file a petition for the removal of the cause for trial into the next circuit court to be held in the district where the suit is pending (or if in the district of Maine, to the district court next to be hoiden therein ; or if in the Kentucky district, to the district court next to be hoiden therein), and offer good and sufficient surety for his entering in such court, on the first day of its session, copies of said process against him, and also for his there appearing and entering spcial bail in the cause, if special bail was originally requisite therein, it shall then be the duty of the state court to accept the surety, and proceed no further in the cause; any bail that may have been originally taken shall be discharged, and the said copies being entered as aforesaid, in such court of the United States, the cause shall then proceed in the same manner as if it had been brought there by original process,” etc.

Under this section it has been held, that a suit can not be removed where part of the defendants are citizens of the state in which the suit is brought, and only part of the defendants are citizens of another state. See the case of Wilson v. Blodget, 4 McLean, 363; and Heirs of Ludlow v. Heirs of Kidd, 3 Ohio, 48. To sustain the jurisdiction of the United States court, and authorize the removal, the citizenship of each of the several defendants must be such as to make the suit removable. Hubbard v. Northern Railroad Co., 25 Vt. 715, 719: Board of Foreign Missions v. McMaster, 4 Am. L. Reg. 529; Welch v. Tennent, 4 Cal. 203.

A corporation created by, and transacting business in, a certain state, is to be deemed an inhabitant of that state, and capable of being treated as a citizen for all purposes of suing and being sued. Louisville Railroad Co. v. Letson, 2 How. 314; Wheedon v. Camden & Amboy R. R. Co., 4 Am. L. Reg. 296; Marshall v. Baltimore & Ohio R. R. Co., 16 How. 314.

When none of the defendants are citizens of the state where sued, and are served at different times, or at different times enter their appearance, they may each, at such different times of entering their appearance, respectively make application for removal. Ward v. Arredondo, 1 Paine, 370. But if all the parties defendant *in such case do not appear in the circuit court to which the suit is so removed, the case will be remanded by that court.

If, however, all the parties defendant have been served, and appear in the state court, in order to give any the benefit of the law of Congress for having the case certified to the circuit court of the-United States, they must all join in the petition.

The foregoing decisions, made under the .act of Congress above-referred to, would seem to have disposed of the principal objections suggested by defendant, to the right of relators to have at least one-of the cases certified for trial into the circuit court of the United States, as prayed for in their petition.

The section of the act of Congress under which the relatorssought to have the causes certified to the circuit court, was found to embrace cases mentioned in section 2 of article 3 of the constitution of the United States. And the language of the act, as well as of the provisions of that section of the constitution, gives to the-United States court, and takes from the state court, jurisdiction of the case, where the defendants are citizens of another state, upon their filing a petition for the removal of the cause, and showing the facts and offering sufficient surety to the court, in accordance with the provisions of the act of Congress. And any further proceedings on the part of the state court, in the trial of the cause and jn entering judgment, would be coram non judice.

It would, therefore, seem unnecessary to consider the question, whether Congress had the power, under the constitution, to compel state courts or state officers to execute its laws. The provisions of the act of Congress under consideration, in relation to transferring jurisdiction, unquestionably authorizes the circuit court to> take jurisdiction of the case when certified; and a transfer of the case is more convenient for the states and the suitors, than to-have the same dismissed, to be again commenced de novo in the circuit court.

The duty of yielding to the United States court the jurisdiction of the case, where the defendant shows himself entitled to the-constitutional provision of an exemption from a trial in the state court, is imposed by the constitution itself. And the practice of certifying the case, in accordance with the provisions of the act *of Congress has been recognized by the courts of this state ever since their organization, and has become established by long and continued usage, as a rule of practice of the state courts-in such cases.

The duty of the courts of this state, therefore, to certify cases to-the circuit court of the United States, might at this time be well urged, from long and continued usage, independent of the act of Congress commanding it, and in the absence of state legislation upon the subject.

The obligations arising under the constitution of the United States, whether enforced by congressional or by state legislation, or remaining only in the nature of compacts, unsupported by either federal or state legislation, are alike entitled to scrupulous regard and respect by the state courts. And this would seem to be more especially desirable and necessary in those cases where the power to legislate for the enforcement of such compacts has not been given to Congress by the constitution, nor exercised by the state legislature.

In the case under consideration, it does not very clearly appear upon what ground the court of common pleas rested the objection to certifying the case. It does not appear that the relators excepted to the holding of the court, or to any of the proceedings. No bill of exceptions was presented and asked to be allowed, in relation to any of the proceedings or exceptions thereto, in that court • nor is there any pretense that the defendant was not ready and willing to give the relators the full benefit of a fair bill of exceptions.

Under this state of facts, the relators ask a peremptory mandamus. Can that writ, by the rules of law applicable to the case,, be allowed?

The writ of mandamus, at common law, was a prerogative writ, introduced to prevent discord from a failure of justice, and to be used on occasions where the law had established no specific remedy. It is, however, a general rule, at common law, that the writ of mandamus does not lie unless the party applying has no other adequate legal remedy.

The provisions of our code seem strictly consonant with this *common-law rule, as the cases in which the writ of mandamus may issue. Section 570 provides, “ That this writ may not be issued in any ease where there is a plain-and adequate remedy in the ordinary course of the law.”

If we look to this case, as presented by the petition of relators, and the answer of the defendant, it is evident that the relators had a plain and adequate remedy at law, by excepting to the holdings of the court. The relators had only to prepare, present, and procure the allowance of a bill of exceptions, so as to present a statement of the facts upon the record, and, by a petition in error, to subject the rulings of that court to review; and if found erroneous, to reversal by a higher court. If, in fact, any error intervened in the proceedings of the court of common pleas, the correction of that error could have been obtained in the usual and ordinary course of proceeding provided by law in all similar cases.

But the relators, for some reason, did not see fit to avail themselves of the ordinary and adequate remedy provided for the correction of errors in proceedings of the court of common pleas; and it is evident to us that, having so neglected their appropriate and ordinary remedy, they not Only are not entitled to the extraordinary remedy of a peremptory mandamus, but that at this time a mandamus would be inappropriate and inadequate.

Judgment was rendered, and no stay of execution being had, the same has probably long since been executed. We can not, therefore, perceive wherein the relators would obtain any relief or benefit from the cases at this time being certified into the circuit court for a new trial, in which the plaintiffs might possibly again recover the same amounts from relators, unless they should plead in bar the ’ former recovery.

For the reasons expressed, the motion of the relators is overruled, at their costs. i ■

Swan, Brinkerhorr, and Scott, JJ., concurred.


author: By the Court.

text:
    *The Steamboat Monarch v. M. D. Potter & Co.
    P. & Co., under contract with the officers of a steamboat navigating the waters within and bordering on. this state, published in their newspaper advertisements of the times of the departure of the boat on various trips; also furnished the material and printed and delivered on board the boat, a quantity of bills of fare to be used at the table of the boat, and a quantity of bill-heads to be used in making out accounts due to the boat; also a quantity of notices to consignees, to be used in notifying consignees that their freight was ready for delivery by the boat; and a quantity of cards with the name of the boat and of her captain upon them, designed to be distributed as advertisements ; and a quantity of bills or posters, having blanks to be filled, designed to be posted up in various places as advertisements of the' boat and the times of her departure on her various trips. These articles, thus-delivered to the boat, were supplied for her equipment, and were such as-are generally used by steamboats on the Ohio river as part of their equipment, and were furnished on the credit of the boat.
    The persons who owned the boat during the time and after said articles were furnished, sold the boat before action was brought against the boat by name. Held—
    1. That the advertisements in the newspaper could not be recovered for in the-action, because not within the provisions of the a.ct for the collection of claims against water-crafts. But,
    2. That the bills of fare, bill-heads, notices to consignees, cards, and bills or posters are within the provisions of said act, as supplies for equipping the boat.
    3. That, for the articles last named, a recovery may be had against the boat, notwithstanding the change of owners.
    This is a motion for leave to file a petition in error to reverse the judgment of the Superior Court of Cincinnati.
    In April, 1857, M. D. Potter & Co. brought suit in the Superior-Court of Cincinnati against the steamboat Monarch by name.
    In January, 1858, the case was tried by the court in special term, and the court found the following facts;
    That the defendant from the 25th day of November, A. d. 1854,. until the (then) present time, had been a steamboat navigating the waters within and bordering upon the State of Ohio. That the plaintiffs, between the 25th day of November, a. d. 1854, and the 26th day of May, a. d. 1855, under contracts with the officers *of the defendant, published in their newspaper, the Cincinnati Commercial, advertisements of the times of the departure of the defendant on various trips. That the plaintiffs, between the ■same dates, and under contracts with the master of said boat, printed on material furnished by them, and delivered on board of the defendant, a quantity of bills of fare, to be used at the table of the •defendant; and a quantity of bill-heads, and notices to consignees, to be used respectively in making out bills for accounts due to the •defendant, and in notifying consignees that their freight was ready for delivery by the defendant; and a quantity of cards with the name of defendant and the name of the captain upon them, designed •to be distributed as advertisements; and a quantity of bills or posters of various sizes and qualities, having blanks to be afterward filled, designed to be posted up in various places, as advertisements of the defendant and of the times of her departure on her various trips; and that the articles thus delivered by the plaintiffs to the defendant were supplied for her equipment, and were such as are in general use by steamboats on the Ohio river, as part of their equipment, and were furnished on the credit of defendant; and that the persons who, between the 25th day of November, a. d. 1854, and the 26th day of May, a. d. 1855, had been the owners of the defendant, subsequently to the latter date, and prior to the commencement ■of this action, sold her to other persons, who are now her owners.
    Upon this state of facts the court held as matter of law: “ That the price charged by the plaintiffs for their advertisements in their newspaper can not be recovered in this action, because not within the provisions of the act for the collection of claims against water-•crafts; but that the bills of fare, bill-heads, notices to consignees, cards, and bills or posters above referred to, were within the provisions of the act aforesaid, as supplies for equipping the defendant; and that the plaintiffs are entitled to recover from the defendant in this action the balance due for the articles last mentioned,” and rendered judgment accordingly.
    Defendant excepted, and moved to set aside the judgment and •for a new trial, on the ground that the decision was contrary to law. The motion was overruled.
    *Tke Superior Court in general term affirmed this judgment.

      Coffin & Mitchell, on behalf of the boat,
    make a motion in the Supreme Court for leave to file a petition in error to reverse the judgment below, and insist: 1. That the articles for which judgment was rendered were in no sense supplies within the meaning of the law; and, 2. That a steamboat is not subject to suit, even for supplies, after an entire change of owners.
    ' J. H. Qetzendanner, for defendants in error.
   By the Court.

Motion overruled.