Opinion
11-15-1886
FISHER v. BOLTON and others.
T. D. Durling, for complainant. H. F. Galpin, for defendants.
T. D. Durling, for complainant.
H. F. Galpin, for defendants.
BIRD, V. C. The bill is for partition of lands of which Thomas M. Drake died seized. One of his children, John W., claims an interest as heir at law. This claim is resisted. It is said that John had his full share of his father's estate during the life-time of the father, and that both he and his wife released and quitclaimed unto the said Thomas M., and to his heirs and assigns, forever, all their right, title, and interest to a certain farm in Scott county, in the state of Iowa, and also all "right, title, claim, and interest in and to all property now owned or hereafter to be acquired by the said Thomas M. Drake." Besides the complainant, Thomas M. had other children; and, in addition to the written acknowledgment of his full share of his father's estate, which was made to his father in his life-time, he acknowledged that he had had his share of his father's property since his father's death, and said that he did not want anything more. The proof is that John repeatedly made such declarations since his father's death. John denies them in his answer, insisting that he never made such statements, and insisting, also, thatthe writing alluded to was not intended to be used for the purposes which appeared upon its face. He insists that his father never advanced him anything, but that all he ever received from his father he gave a valuable consideration for. John endeavors to give a reason for the formal execution of the written acknowledgment of having received his share by himself and his wife. He says his father had been a widower for some time, and was about to remarry; that he was about leaving Iowa to come to New Jersey for that purpose; and, using his words, "that the object of that paper or quitclaim deed, so called, was to satisfy the woman he was about to marry in New Jersey in regard to property, and no evidence of the advancement to me." But this declaration of the meaning of the instrument is radically inconsistent with the instrument itself, and as inconsistent with the repeated statements of John to several witnesses. Although he denies making the statements, 1 can see no reason for discrediting the witnesses who said he did. The instrument speaks for itself.
It is important to observe that John is the only child who executed any such release, and that, if the execution of any such paper was to bear a part in effecting his new marital relations, the other children of Thomas would have been called upon to join therein. No reason has been assigned, and perhaps none could be, for the other children taking no part in this family transaction. It is in proof, also, that the father said on different occasions that John had had his full share of his estate. Therefore, when I take into consideration the formal execution of the written acknowledgment, John's repeated admissions that he had received his full proportion, and the father's declarations that he had advanced to John all that he was entitled to, and in fact that they had recently had important business transactions, I am irresistibly led to the conclusion that John is not entitled to any share or interest of or in the lands sought to be partitioned. I think this view of the case is fully sustained by the case of Havens v. Thompson, 26 N. J. Eq. 383. In that case the son gave to his father a receipt in these words: "Received of Daniel Havens the sum of six hundred dollars in full in lieu of dower;" and it was held that this was an agreement which barred the son from making claim to a share of his father's estate. The evidence shows that, just prior to the execution of this paper by John W., he and his father had had quite extensive dealings in real estate, which involved the farm in Scott county, Iowa, referred to in the paper, showing conclusively that there was some consideration therefor, which is in harmony with John's admissions and with the father's declarations, and is sustained by the case of Speer v. Speer, 14 N. J. Eq. 240.
I will advise a decree in accordance with these views.