Mally v. Mally , 121 Iowa 169 ( 1903 )

Ladd, J.

Under the will the plaintiff took title to the land subject to the bequest of $1,500 to W. E. Mally. Immediately after testator’s death Emma Mally caused execution to be issued on a judgment previously obtained by her against W. E. Mally, and levied on this land. The plaintiff sought to enjoin the sale on the ground that in the lifetime of the testator W. E. Mally had orally assigned to him all of his possible or expectant interest in the testator’s estate in satisfaction of a debt due him. Appellant insists that under the evidence the court should have so held. This is the only point raised by him; and for this reason we do not pass upon the more difficult question as to whether the legacy under the will is a mere lien on the real estate or an interest in the land subject to execution. The current of authority is to the effect that an assignment of a naked possibility or expectancy of an heir apparent to an estate, if in good faith and for an adequate consideration, will be enforced in a court of equity after the death of the ancestor. See Jones v. Jones, 46 Iowa, 466, and decisions collected in 4 Cy. 15; exhaustive notes to McCall v. Hampton, in 33 L. R. A. 266, and to 56 Am. St. Rep. 339—a recent case to the contrary. As to whether it must also appear that the assignment was made with the ancestor’s knowledge and acquiescence, the authorities are in conflict. In the early case of Boynton v. Hubbard, 7 Mass. 112, this was held tobe essential, and that decision has been followed in McClure v. Raben, 125 Ind. 139 (25 N. E. Rep. 179, 9 L. R. A. 477), and 133 Ind. 507, 33 N E. Rep. 275, 36 Am. St. Rep. 558; to which some support is given by Alves v. Schlesinger, 81 Ky. 290. The reasons for the rule are tersely summarized in the first opinion in McClure v. Raben: “We regard such contracts and conveyances against public policy. The grantor at the time has no property or interest in the property of his father or ancestor which he can sell or convey, and none which the grantee can purchase. It is a mere gambling contract. It is wagering that the son or heir will survive tbs father or ancestor, and that the latter will not dispose of the property, and will die intestate, whereby the grantor will, some time in the future, inherit an interest which he can then convey. It operates as a fraud upon the ancestor, and diverts his bounty from a kin to a'stranger. It encourages extravagance, prodigality, and vice on behalf of the heir, and in some instances might create an anxiety on the part of an avaricious or vicious purchaser for the death of the ancestor.” On the other hand, the opposite view was taken in Mastin v. Marlow, 65 N. C. 695; and in an opinion exhibiting much research the Supreme Court of Texas, in Hale v. Hollon, 90 Tex. 427 (39 S. W. Rep. 287, 36 L. R. A. 75, 59 Am. St. Rep. 819), shows that want of the notice to and acquiescence by the ancestor has never been regarded by the English decisions as alone controlling. In that case, and also in Fuller v. Parmenter, 72 Vt. 362 (47 Atl. Rep. 1079), notice was held not to be essential where the ancestor was insane at the time of making the assignment. The question is one of much difficulty, and, while raised by the appellee, is not discussed in the brief of appellant. In these circumstances we deem it preferable to postpone decision of the point for full argument, as the case may be disposed of on the facts.

The evidence fails to show a present assignment. True, plaintiff testified as a conclusion that his brother W. E, Mally “made a verbal assignment to me of any interest he might have in his mother’s estate. ” But the language from which this conclusion was drawn was detailed by two other witnesses. Trent testified he heard “William say to Paul that he had no property, but that whatever interest would come to him from his mother’s estate should be Paul’s if he had to pay the sixteen hundred dollars. He stated that whatever interest he had in the estate of his mother should be Paul’s.” W. P. Mally testified: “I told him in the presence of Mr. Trent, ‘1 cannot pay you a penny, because I have not got a cent to pay you with, but, if mother ever leaves me anything, you shall-have it, and I won’t have anything to do with it in case you have to jjay the judgment. ’ * * * I made the statement to Paul that he should have what I might have in my mother’s estate in the summer of 1892.” Prom this it is manifest that William had-no thought of then transferring his expectancy in his mother’s estate. All that was said amounted to no more than a promise to turn over whatever his mother might leave him in event plaintiff should be compelled to pay the judgment. This promise he has never carried out, and for this reason no transfer was ever made to plaintiff. — Aepiemed.