Price v. Price

Full title: PRICE v. PRICE

Court: Supreme Court of North Carolina

Date published: Nov 1, 1903

45 S.E. 855 (N.C. 1903)

133 N.C. 494

Opinion

(Filed 24 November, 1903.)

1. Specific Performance — Legacies and Devises — Contracts — Issues.

In a suit against devisees and executors for specific performance of a contract to devise certain land, it is proper to submit to the jury whether testator devised the land as he contracted.

2. Evidence — Specific Performance — Records — Wills.

Where a devisee seeks the specific performance of a contract to devise certain land, executed on the compromise of a certain suit, the record in such suit is not admissible in evidence.

3. Evidence — Specific Performance — Contracts — Wills.

In a suit by a devisee for the specific performance of a contract to devise land, evidence as to what land the devises had in possession, when and where it had been surveyed, and other evidence of like character, is admissible to locate the land received by the said devisee under the will.

4. Specific Performance — Contracts — Wills — Questions for Court.

In a suit for the specific performance of a contract to devise certain land, the jury having found that the land devised in the will was the same as that contracted to be devised, it became the duty of the court to construe the contract and the will for the purpose of ascertaining whether the will was a substantial execution of the terms of the contract.

5. Specific Performance — Contracts — Consideration — Wills — Equity.

A contract to devise land in consideration of the settlement of a family controversy relative to certain lands is valid and may be enforced in a court of equity.

6. Wills — Specific Performance — Contracts — Estates — Legacies and Devises.

Where a testator contracts to devise certain lands to his children, "with limitations," he may attach such limitations as are in his judgment proper.

7. Election of Remedies — Equitable Election — Specific Performance — — Wills — Legacies and Devises.

A devisee, seeking specific performance of a contract to devise lands, cannot be required to elect whether he will take under the will or under the contract.

ACTION by J. Mc. Price against B. F. Price and others, heard by Cooke, J., and a jury, at August Term, 1903, of UNION. From a judgment for the defendants both the plaintiff and the defendant J. C. Price appealed.

A. M. Stack for plaintiff.

J. A. Lockhart Son, Burwell Cansler, Adams, Jerome Armfield, R. L. Stevens, and R. W. Lemmond for various defendants.

MONTGOMERY, J., dissenting.

CONNOR, J.

It is clear that the contract of 6 December, 1899, entered into between J. W. Price and his children, the plaintiff and defendants herein, was well understood between them, and that it was the purpose of the parties to settle the unhappy controversy growing out of the execution of deeds to the father by his former wife and the mother of the plaintiff and defendants for her maiden land. It will be observed that J. W. Price had married on 4 December, 1855, and that this deed was executed during 1859. The wife and mother survived until 1881. Two of her five children brought suit in 1899 charging that their father had procured the execution of the deed by undue influence and persuasion. The complaint further alleges that since the death of his wife he had married a second time and had other children. They further allege that the father had settled plaintiffs on lands other than those conveyed to him by his wife, but had given them notice to vacate them, and advertised the said land for sale. The father, in that suit, filed his answer admitting a portion of the allegations, denying others, (496) and setting up affirmative defenses. It appears that on 29 September, 1889, the father had a portion of his land surveyed, plats made thereof and divided into lots, with a view to partitioning it among his children, and that in making such partition he allotted a tract of 183 acres to the plaintiff J. Mc. Price, who was at that time in possession thereof. It will be further observed that on 6 December, 1899, just forty-four years had passed since his marriage to the mother of his children. It appears from the pleadings that they had all reached their majority. It is not unreasonable to assume that he was approaching the allotted limit of human life. A second wife and one child of his old age were defendant upon his providence and care. The years of his strength had been devoted to the rearing of the five children of his first marriage, and he had made provision for his oldest sons. One son, it appears, was of feeble mind. The daughter was unmarried, and, the plaintiff says, "too old to ever be a mother." One son, B. F. Price, was unmarried, and it would seem had remained at home with his father. The two sons who were married had been settled upon parcels of land and had received their portion of the personalty. In this condition of his affairs and family we can well understand that he desired to settle the controversy and be at peace with his children. Placing ourselves in the position of the parties, we are better able to understand their conduct and construe the contract which they made looking to this end. Thus, on 6 December, 1899, they executed the paper-writing the terms and provisions of which we are called upon to construe. Following the formal parts thereof, they proceed to say: "That the said parties of the first part, children of J. W. Price, in consideration of an agreement on the part of J. W. Price to devise to the parties of the first part, J. Mc. Price, J. Robert Price, Sarah E. Price, John C. Price, and (497) Benjamin F. Price, respectively, with limitations, the lands belonging to J. W. Price, including that therein conveyed or a part thereof, which have been divided and allotted to the several parties of the first part according to the two plats of the lands made by L. A. Helms, surveyor, and dated 20 September, 1899, the part devised to Benjamin F. Price to be charged with the support and maintenance of Margaret M. Price, wife of J. W. Price, if she survives him, which plats are here referred to as a part of this deed, and to which reference is made for the location and description of the lots, of which the respective parties have been put in possession." Then follows appropriate words by which the children "remise, release, and forever quitclaim unto J. W. Price all of their right, title, and interest in and to the lands conveyed to him by their mother, which is described by metes and bounds. Immediately after the habendum is the following clause: "The further consideration of this deed is an agreement on the part of J. W. Price to devise to J. Robert Price and his heirs the David Phifer place of 100 acres, of which he is now in possession, but is not described in the plat referred to hereinbefore." This contract was duly proved and recorded 17 January, 1900, and on the same day the said J. W. Price executed his will. He gives to his wife and children his household and kitchen furniture, stock on hand, and some small legacies. He provides that his stock, etc., shall be used for the benefit of his children "while said family shall remain together," mentioning the fact that his sons J. Mc. Price and J. Robert Price have had their full share of his personal property." He then gives to B. F. Price and Sarah E. "$300 jointly to assist them in the support and maintenance of my son, J. C. Price, with whose support and maintenance I charge this sum and the lands devised to them in the sixth item of this will." In the fourth item he (498) devises, "in lieu of the dower and thirds," to which his wife was entitled, to her and to B. F. Price several tracts of land, including his dwelling-house and outhouses, aggregating 351 acres. The several tracts, he says, "are more particularly shown on a plat made by L. A. Helms on 20 September, 1889, to which plat reference is hereby made." This land he gives after the death of his wife to B. F. Price in fee. He further provides and directs that his son J. C. Price and his daughters Sarah E. Price, and Mary E. Price (the child by his second wife) shall have a home with his son and his wife until they shall severally marry. This provision is to continue in the event of the death of B. F. Price, that is, they shall continue "to have a support from and home upon the land." In item 5 he gives to his daughter Sarah E. Price three tracts of land aggregating 162 1/2 acres, two of which tracts are shown on the L. A. Helms plat. One tract of 11 1/2 acres, he says, was purchased in 1897 after the plat was made. In item 6 he gives to his son B. F. Price and his daughter Sarah E. Price, "charged with the support and maintenance of my son J. C. Price and subject to the provisions of item 4," three tracts aggregating 130 1/4 acres, two of which tracts are shown on the L. A. Helms plat. The other tract of 10 3/4 acres was purchased in 1897. In item 7 he gives to his son J. Mc. Price 183 acres, shown on the L. A. Helms plat. To this devise are certain limitations, which will be referred to later on. In item 8 he devises to J. Robert Price the David Phifer land, containing 100 acres. To this devise are certain limitations. All other real estate owned by him is directed to be sold by his executors, and after paying debts and pecuniary legacies the balance is to be divided equally between his children. In item 11 he says that in order to make more definite and certain the identity and location of the lands hereinbefore devised and the respective persons to whom they are devised, "I have written the names of each and every of the parties within the boundaries of the plats made by (499) L. A. Helms and M. D. L. Biggers," etc. The last-named plat being of the two small tracts purchased in 1897. By a codicil executed 24 September, 1901, it appears that with the consent of his son J. Robert Price he exchanged the Phifer land for a tract of 172 acres, which he devises to his said son. The date of his death does not appear in the record.

This action is brought 14 November, 1902, by the plaintiff against his brothers and sisters and the executors of J. W. Price. The plaintiff alleges that the said J. W. Price "failed and refused to perform his said contract in that he did not devise to him any part of the two tracts of land conveyed to said J. W. Price by his wife and described in the contract of 6 December, 1899," and further, that whereas he contracted to devise said land to his children "respectively, with limitations," he placed no limitations on the lands devised to B. F. and Sarah E. Price, while he did place limitations on the lands devised to the plaintiff and J. Robert Price. He says that "the said J. W. Price contracted to devise to J. Mc. Price (plaintiff) and his brothers and sisters the same quantity and quality of estate in said lands, yet B. F. Price and Sarah E. Price, instead of getting two-fifths with the same limitations that were placed on the plaintiff, get in fee simple more than three-fourths of the land contracted to be devised to the five children of M. L. Price, and get all of the two tracts that were in litigation and described in Exhibit C; that he failed to devise any land to J. C. Price, who is weak-minded and incapable of looking after his rights, and who is an unmarried man without children and not likely to ever marry and have children; that Sarah E. Price is unmarried and too old now to ever become a mother, and if the same limitations had been placed on her devise that was on plaintiffs', as said J. W. Price contracted to do, then this plaintiff or his children would certainly have gotten a part of her share at her death." (500) He makes the same complaint in regard to land devised to B. F. Price. He further complains that his father had sold off part of his land and had also sold some cross-ties. For these alleged breaches of the contract on the part of his father he demands judgment that the defendants be ordered to specifically perform said contract and to convey to him, the plaintiff, in fee simple, one-fifth interest in the land of J. W. Price as shown in the said two plats, including the two tracts of land particularly described in the deed of compromise, and for $300 damages; also, that a decree be made declaring the plaintiff and his brothers and sisters owners and tenants in common of said land shown in said plats, etc.

The defendants admit the execution of the contract and the facts leading up thereto, but they deny the construction put upon it by the plaintiff, and allege that their father in all respects performed his part of said contract in the will hereinbefore set out. Upon the cause coming on for hearing, it appeared that J. C. Price was mentally incapable of attending to his own affairs, and a guardian ad litem was duly appointed for him. The court, after objection by the plaintiff, submitted the following issue to the jury: "Did J. W. Price devise to J. Mc. Price the land he contracted to do by the instrument of 6 December, 1899?" To which the jury responded in the affirmative. The issue was properly submitted to the jury for the purpose of fixing the single fact in controversy, to which it is directed. The plaintiff submitted two issues: (1) What lands or interest in lands did J. W. Price contract to devise to the plaintiff J. Mc. Price? (2) What lands did J. W. Price devise to the plaintiff? To the refusal of his Honor to submit these issues the plaintiff excepts. His Honor's ruling was entirely correct. The plaintiff offered to introduce the record in the original suit of J. Mc. Price and Robert Price against J. W. Price, to which the defendants objected, and upon the objection being sustained the plaintiff excepted. His (501) Honor's ruling in this respect was correct. The plaintiff then introduced the original contract and the will of J. W. Price, and also the original plats made by L. A. Helms on 20 September, 1889. The plaintiff testified that he knew the plats and the handwriting of his father, and the names of the children written upon the plats designating the several tracts of land are in the handwriting of J. W. Price; that those names were not there the day the contract was made; he says he knows the land which his father owned at that time; that he also owned some other lands which are not described in these plats; that the expression, "the lands herein conveyed," refers to the lands that were then in litigation; that in 1899 the lands had not been allotted to the children; that he did not devise any part of the land in litigation to him. He says that he was living on the 183 acres; that he moved on it about seven years ago, but had been working it longer; that the tract originally contained 226 acres, and that the surveyor cut off 47 acres of the land, which was not allotted to him; that there are some 55 acres of the land which is not willed to any of the parties. He says that he was with the surveyor and his father when the lines were run; that he has been in possession of the 183 acres since 1889; that he saw the plat at the time of the compromise; that it was on exhibition; that he had said to Mr. Haywood that he was to get the 183 acres by the compromise; that he was to get over that. The plaintiff rested.

The defendants introduced Helms, the surveyor. He said that he surveyed the land and made a plat in 1889; that the plaintiff was along with them when they ran the lines; that when the 183 acres were run off for the plaintiff he was present; that J. W. Price would show him where he wanted a division for a certain one of his children, naming the one. To all of this testimony the plaintiff objected, and, upon his objection being overruled, excepted. His Honor said that he (502) admitted the testimony for the purpose of locating the lines. We are of opinion that it was competent for that purpose. The witness then testified in regard to the surveying of the other lots. Haywood was then introduced and testified to substantially the same. In answer to a question by the court to locate the land, he said: "There are 183 acres. It is right near me. He has been living there, I think, about nine or ten years. He has been controlling it, I think, ever since I moved there in 1888. I know he has had control of it ever since I went there. I remember when Helms surveyed the land. I saw them running it. I don't remember whether I saw Mack with them or not. I was just working in the field when they came along. I was not living on the land that they ran for him. I remember the time that Mack and his father had a compromise of their suit." The plaintiff objected to this testimony, and, upon its being overruled, excepted. The witness further said that "he told me when I first went there that his father told him to come down there and settle it up; that he would fix it up so that he could get it some day; he told me just after the compromise about having it settled, or something that way." This testimony was objected to, objection overruled, plaintiff excepted. There was other testimony of the same character, all of which was directed to the location of the land. The court stated that the foregoing evidence was allowed only for the purpose of locating this land which the plaintiff got in the will or contract. To which the plaintiff excepted.

The court instructed the jury that if the testator J. W. Price had allotted and put J. Mc. Price in possession of a certain tract of land, that was the lot of land he contracted to devise to J. Mc. Price; and, if they find from the evidence that the land devised to the said J. Mc. Price is the same lot or lots that was allotted to J. Mc. Price, and of which he was put in possession by J. W. Price, they will answer (503) the first issue "Yes." To which plaintiff excepted. The instruction is correct. The plaintiff requested the court to instruct the jury that if they believed the evidence the plaintiff did not get under the will the lands that J. W. Price contracted to devise to the plaintiff J. Mc. Price. Upon his Honor's refusal to so instruct the jury the plaintiff excepted. The plaintiff requested the court to further instruct the jury that under the contract the plaintiff was to get an undivided one-fifth interest in all the lands described on the plat of Helms, referred to in the deed of compromise; that the plaintiff was, under the contract, to be devised a one-fifth interest in value of the lands described in the deed of compromise. To the refusal to give these instructions the plaintiff excepted. The plaintiff then requested the court to construe the deed of compromise and not leave any part thereof to the jury.

This issue being answered, it became the duty of the court to construe the contract and the will for the purpose of ascertaining whether the will was a substantial execution of the terms of the contract, and his Honor so held. In our opinion his Honor's ruling was entirely correct. There can be no question that a contract upon a sufficient consideration to devise lands is valid and may be enforced in a court of equity, the decree being so drawn as to declare the parties to whom the land is devised, or, in the event of a failure to devise, the heirs at law to hold such lands in trust for the persons to whom the testator had contracted to devise them.

"The validity of a contract by which one of the contracting parties agrees with the other, either for a good or valuable consideration, that he will make a will devising his property, whether real or personal, is valid beyond a doubt." Underhill on Wills, sec. 285. "The party who has made the promise to give property by his will may have made some testamentary provision for the other party to the contract which (504) the latter claims is not a sufficient compliance with the terms of their agreement. This is usually the case where the terms of the contract describing the land or other property to be given are vague, indefinite, and open to doubtful interpretation. Generally, a substantial rather than a literal compliance with the terms of the contract is all that can be required." Ibid., sec. 290.

The principles by which courts of equity are governed in sustaining and enforcing such contracts as the one set out in this record are well settled and strongly stated by Lord Hardwicke in Stapilton v. Stapilton, 1 Atk., 2 (2 White and Tudor L. C., 1675, star p. 824). In speaking of a contract made for the purpose of settling a family controversy, he says: "It was to save the honor of the father and his family, and was a reasonable agreement; and, therefore, if it is possible for a court of equity to decree a performance of it, it ought to be done . . . and, considering the consequence of setting aside this agreement, a court of equity will be glad to lay hold of any just ground to carry it into execution, and to establish the peace of a family." In the notes to that case it is said: "`From the case of Stapilton v. Stapilton,' observes Lord Chancellor Sugden, `down to the present day, the current of authorities has been uniform, and wherever doubts and disputes have arisen with regard to the rights of different members of the same family, and fair compromises have been entered into to preserve the harmony and affection, or to save the honor of the family, those arrangements have been sustained by this Court, albeit, perhaps, resting upon grounds which would not have been considered satisfactory, if the transaction had occurred between mere strangers.' Westby v. Westby, 2 D. and War., 503." "The compromises of doubtful claims, whatever may be the actual rights of the parties, have, from the policy of preventing litigation, been generally upheld in all enlightened systems of jurisprudence. . . . And where a deed of family arrangement has been acted upon for many years, and no fraud is imputed, the court will (505) not set aside or alter such deed upon the mere allegation by some of the parties to it that the provisions did not carry out their intentions." Bentley v. Mackay, 31 Beav., 143; 10 W. R. (L. J.), 873.

"Fair compromises, especially between members of a family, are favorably looked upon by courts of equity, their object being to prevent or put an end to litigation and to preserve the peace and property of families." Beach Mod. Eq., 1083.

Gaston, J., says: "The agreement was confessedly entered into for the purpose of quieting disputes between the children of the same father, in relation to the disposition of his property; it is apparently equal; it is not denied to be fair; and was deliberately assented to as a proper and just family arrangement. Such arrangements are upheld by considerations affecting the interests of all the parties, often far more weighty than any consideration simply pecuniary." Bailey v. Wilson, 21 N.C. 182 (189).

Guided by these precedents of great and wise chancellors, we have no difficulty in sustaining the contract and will made in pursuance thereof.

The plaintiff is the only one of the parties to the contract who complains of the disposition made by his father of his property. He points out a number of respects in which he says his father "failed and refused" to comply with his promise. Many of the complaints refer to matters in which he is not interested, and, if true, he has no right to complain. The two objections which affect him and which were relied upon in the argument are, first, that he failed to devise to the plaintiff any interest in or any part of the two tracts of land which were in litigation in the suit; that he gave B. F. Price and Sarah E. Price three-fourths (506) of his land and gave none to J. C. Price. The last suggestion is not sustained by an examination of the will. B. F. Price and his mother received for their joint lives, with remainder to B. F. Price, 350 1/4 acres, charged with the support and maintenance of J. C. Price and Sarah E. Price. It is evident that this land is to be a home for the family, and the charge extends beyond the life of B. F. Price. Sarah E. Price received 102 acres, and 130 acres are given to them jointly charged with the support and maintenance of J. C. Price. The entire number of acres devised is 925. Treating the devise of 130 acres as in trust for J. C. Price, these three received 555 acres, which is 87 acres in excess of three-fifths of the whole, charged, however, with the life estate of the mother in a portion of it, and the support of the family in the whole. Whereas the plaintiff received 183 acres, of which he has been in possession for more than ten years, and which is but two acres less than one-fifth of the whole number devised. It is clear, upon the testimony, including the contract, the plats and the will, that it was understood by all the parties that the plaintiff was to have the 183-acre lot. The total number of acres devised being 925, the number of acres in the two lots "herein conveyed" is 463, which leaves of the other lands 462 acres. The plaintiff says: "I was to get the 183 acres by the compromise. I was to get over that." Deducting the 183 acres from 462 leaves 279 acres to be divided among the other four children. Give the plaintiff 92 acres, being one-fifth of the 463 acres, in addition to the 183 acres which he says he was to receive, and he would have 275 acres. One-fourth of the 279 acres left to be divided between the four children would give them each 69 acres, to which add 92 acres, one-fifth of the 463, and each of them would receive 162 acres, thus giving the plaintiff 113 acres in excess of each of the others. This, too, in the light of the fact that he has used and occupied the 183 acres for more than ten years and without (507) any regard to the provision for the wife of J. W. Price in lieu of her dower. This result would seem to exclude the contention of the plaintiff as to the intention of the parties in making the contract. But it is manifest that at the time the compromise was made the plats were "on exhibition," and that the parties understood what tracts were to be devised to each of them. While the names of the several children were not on that day written on the plats, the testator in his will, made on the day it was recorded, says that in accordance with the terms of the contract "he had written the names of each and every of the parties within the boundaries on the plats," and they so appear in evidence. The plaintiff is not interested in the disposition of the land as among the other children, it being shown that he has received all to which he is entitled. There is no suggestion that the land devised to him is not of equal value with the other shares. If it were necessary to do so, the reasons which controlled the testator in the disposition of the other lands could easily be pointed out. In truth, they are apparent upon the face of the will. Much was said on the argument in regard to the meaning of the words "or a part thereof," as to whether they referred to the land "herein conveyed," or the other lands of the testator. I am unable to see that it is material what view is taken of this question. He devises all of the lands "herein conveyed," save a few acres, and that he directs to be sold and the net proceeds to be divided among his children. The plaintiff, however, says that the words "with limitations" are to be understood as an agreement to place the same limitations upon the lands given to each of the children. If not so, that they are so indefinite that the court cannot specifically enforce a compliance with them, thus rendering the entire contract void for uncertainty. The words are to be construed as leaving in the testator the liberty of attaching such limitations as in his judgment he thought proper. It is evident that there were reasons why the same limitations should (508) not be attached to the land devised to each of the children. Their condition in life was different; some were married and others were single. The plaintiff says the daughter was "too old to become a mother." Again, it is evident that some provision must be made for the support of J. C. Price. By a proper construction of the contract the testator reserved the right to attach such limitations as he saw fit. If it could be seen that he had exercised this right arbitrarily or unjustly, or that he had abused the right thus reserved, it is possible that a court of equity would, so far as possible, repair the wrong thus done the testator's children. However this may be, it is evident that the plaintiff alone complains of the limitations attached to the devises, and he places his objection upon very untenable ground, that if the limitations had been otherwise, possibly his maiden sister and his bachelor brothers would have died without children, and either he or his children would derive some benefit therefrom. It can hardly be supposed that any of the parties had such remote contingencies in mind. There was evidently no speculation being done upon the death of maiden sisters and bachelor brothers for the benefit of nephews and nieces. We can easily see why no limitation was placed upon the land given to B. F. Price. This land was to be a home and a source of support to the feeble-minded brother and maiden sister so long as they lived. In respect to the land given for the support and maintenance of J. C. Price, a reasonable construction of the language would impress a trust upon the legal estate, and it is more than probable that, upon the death of J. C. Price, the devisees of the legal title would hold in trust for his heirs at law, of whom the plaintiff would be one. J. R. Price, to whose land limitations are attached, makes no complaint. His Honor, however, without objection on the part of the defendants, construed the contract to mean that the limitations should not extend beyond the wife and children of J. Mc. Price, and (509) adjudged that the lands devised to J. Mc. Price should be held by him during the term of his natural life, then by his wife and children during the life of widowhood of his wife, and, at her death or coverture, by his children in fee; and we do not understand that either of the parties except to this portion of the judgment. The contract made by the parties, having in view a family settlement of property and compromise of all matters in controversy, should receive a liberal construction and be sustained unless violence is done to some well-established principle of law. After a careful consideration of the entire record, I think the testator has substantially complied with the terms of the contract, and that his Honor's judgment in that respect was correct and should be affirmed.

If this will should be set aside and the contract rescinded, the result would be that the compromise of the original suit would also be rescinded, leaving the plaintiffs J. Mc. Price and J. R. Price litigants with their brothers and sisters, reviving the animosities and bitterness which it was the last will and desire of their father to bury. The result of again launching them upon this troublous and uncertain sea of litigation over the acts of their father and mother would be deplorable. We do not think that there is any principle of law controlling the construction of contracts which makers it our duty to set aside the will of the testator, convinced as we are that he, in good faith, dealt by his children in accordance with the spirit if not the letter of his contract. The judgment of this Court should leave them as he did in respect to their property rights.

Judgment affirmed.

APPEAL OF DEFENDANT JOHN C. PRICE

CONNOR, J.

In this case, on the suggestion of the plaintiff that J. C. Price did not have sufficient mental capacity to attend to his own business, a guardian ad litem was appointed for him by the court, and an answer filed for him by the guardian. Afterwards, (510) the other defendants suggested that J. C. Price had sufficient mental capacity to transact his own business, and by consent of all the parties to the action it was ordered by the court that the question of his mental capacity to transact his own business be inquired into, as is provided in section 1670 of The Code. In the same order it was directed that the answer which had been filed by the guardian ad litem should be temporarily withdrawn. The jury, for the trial of the issue as to mental capacity of J. C. Price, returned for their verdict that he was not competent to attend to his own business. Afterwards the court ordered a reference to ascertain which would be the more advantageous for said J. C. Price, to take under the will or under the contract; and it was adjudged further, that the said contract and will presented a proper case for the exercise of the doctrine of election.

We think there was error in the making of the order of reference. Election, in equity, is a choice which a party is compelled to make between accepting a benefit under an instrument and the retention of some property already his own which is attempted to be disposed of in favor of a third party by virtue of the same instrument.

The doctrine of election does not arise out of contract, and the rights which J. C. Price had in the premises grow out of the deed of settlement and J. W. Price's contract to devise the land as therein set forth. If the deed from the defendant's mother to his father, J. W. Price, had been set aside on the ground of fraud in the suit which was settled by compromise, and J. W. Price had then attempted by his will to devise J. C. Price's interest in the land which descended to him through his mother to another person, and also a portion of his own land to J. C. Price, then the doctrine of election might be invoked against J. C. Price. But there was no adjudication in the action between (511) the parties concerning the alleged fraud of J. W. Price in the suit which has been compromised. All the children, as we have seen, in the plaintiff's appeal, remised, released, and quitclaimed their interest in the land of their mother to their father, J. W. Price, and J. C. Price's rights growing out of that compromise and settlement are contained in the deed of settlement, and therefore rest upon contract.

Error.

PLAINTIFF'S APPEAL.