Hoyt v. Hoyt.

In Carlton v. Leighton, 3 Merrivale, 667, the Lord Chancellor held that the expectancy of an heir presumptive or apparent (the fee simple being in the ancestor) was not an interest or a possibility, nor was it, capable of being made the subject of assignment or contract, and said that the cases cited in support of such contracts were cases of covenant to settle or assign property which should fall to the covenantor, when the interest which passed by the covenant was not an interest in the land, but a right under the contract.

It is to be expected that in England, where estates descend to the oldest son, the courts would be more inclined to hold such contracts void in order to prevent estates from falling into the hands of strangers, than the courts of this country, where estates fall to all the children alike; and yet the general current of the English equity cases is that these contracts, when fairly made, and for an adequate consideration, and the expectancy is not so remote and contingent that the contract becomes a mere wager, they will be sustained.

Chancellor Kent, 4 Com. 261, states the rule in this country as follows: "All contingent and executory interests are assignable in equity, and will be enforced if made for a valuable consideration; and it is settled that all contingent estates of inheritance, as well as springing and executory uses and possibilities coupled with an interest, when the person to take is certain, are transmissible by descent and are devisable and assignable. A mere naked possibility, without being coupled with an interest, cannot be assigned, but if the possibility be coupled with an interest, as when a person who is to take upon the happening of the contingency is ascertained and fixed, such a possibility may be released, devised or assigned, like any other estate in remainder." Jackson v. Waldron, 13 Wend. 178.

Judge Story, 2 Com. on Eq. s. 344, after a full discussion of this subject, says: "From what has been already said it fol

lows as a natural inference that contracts of this sort are not in all cases utterly void, but they are subject to all real and just equities between the parties, so that there shall be no inade

Hoyt v. Hoyt.

quacy of price and no inequality of advantages in the bargain. If in other respects these contracts are perfectly fair, courts of equity will permit them to have effect as securities for the sum to which ex æquo et bono the lender is entitled; for he who seeks equity must do equity, and, therefore, relief will not be granted upon securities except upon equitable terms.'

In s. 343, the learned author, after stating that such contracts are in general a fraud upon the ancestor, remarks: "It might be very different if there was a fair though a secret agreement among all the heirs to share the estate equally, for such an agreement would have a tendency to suppress all attempts of one or more to overreach the others, as well as to prevent all exertions of undue influence." This very nearly supposes the facts in the present case. The contractors knew that the estate of Orin Hoyt consisted of the amount of the annuity and the mortgage notes. If they had not made the agreement, each at Orin's decease would have been entitled to one-third of the estate, the defendant in his own, and the other two in their representative capacity. Each gave up a one-third interest in the estate and assumed one-third of Orin's support, the oratrix taking upon herself a burden that the law did not impose, and relieving the others of a portion of theirs. The bargain was a fair one and upon an adequate consideration; it was not a fraud upon Orin Hoyt, it in no way contravened public policy, and should be sustained.

It appears by the report that of the $220 received by the administrator from the sale of the ten acres of land, and the $521.16 collected by him of the defendant on the annuity, $660.36 was required to pay the debts against Orin's estate, leaving $80.80 in the administrator's hands for future expenses; therefore, the mortgaged premises contributed one-third part toward the payment of the debts.

One-half of the burden of Orin's support originally rested on the defendant and the oratrix relieved him of one-third of that burden, or one-sixth of the entire support. One-half of her charges was for her services and disbursements for the defendant's

Hoyt v. Hoyt.

benefit and relief. Those charges, with interest to February 1, 1889, according to the computation of her counsel, which we think equitable, amount to $750.42. One-half of that sum, $375.21, constitutes an equitable lien on the defendant's one-third of the premises, the value of which third is found to be $366.67. The decree of the Chancellor dismissing the bill is reversed and the cause remanded under a mandate that the defendant, within a time to be fixed by the Chancellor, pay to the oratrix the sum of $375.21, with interest from the first day of February, 1889, together with costs of this suit; or that he shall, within a certain other time thereafter, to be fixed by the Chancellor, convey all his right, title and interest in the premises to the oratrix, according to the prayer of the bill.

State v. Broderick.

STATE v. EDWARD BRODERICK.

Larceny. R. L. s. 4141. Cross-Examination of Respondent. 1. Under R. L. s. 4141, the respondent may be convicted of a felony and sentenced to the State prison, whatever the value of the property stolen.

2. When a respondent becomes a witness in his own behalf, he may on the cross-examination be discredited by injuring his character, but the evidence so elicited must be confined to this purpose alone, and cannot be generally considered by the jury in determining the question, guilty or not guilty, when the respondent has not put his character in issue. This was an indictment under R. L. s. 4141, for the larceny of a blanket of the value of two dollars, placed for use in traveling in the owner's carriage. Trial by jury at the December Term, 1888, Ross, J., presiding. Verdict, guilty.

The evidence on the part of the State tended to show that this blanket had been stolen from the carriage on the evening of August 27, 1887, and had been found Oct. 5, 1887, at the house of one Mrs. Lahey in the State of New York, where it had been left by the respondent in company with one Kelley. The respondent claimed that he had gone to the lake the night before with Kelley, and that he first saw the blanket in the possession. of Kelley while on the way there, and that he did not know where Kelley got the blanket; and it was for the purpose of showing the character of his connection with Kelley on the occasion of this trip that he offered the evidence in respect to his conversations with Kelley while on the way there.

The respondent requested the court to charge the jury that under the section on which the indictment was predicated no conviction could be had for larceny, other than petit larceny, unless the value of the property was seven dollars, and that he could only be convicted of petit larceny in this case since the alleged value of the property was only two dollars. But the court refused to so hold, and the respondent was convicted generally.

State v. Broderick.

The respondent was a witness on his own behalf, and on his cross-examination the State was permitted to show that he was intoxicated on the night in question; that he had served out part of a sentence in the Reform School, and two sentences in the House of Correction, and that on the evening of his trip to the lake he took his father's horse against his express command. The respondent did not in any way put in evidence his own character. Upon the subject of the presumption of innocence the court charged the jury as follows:

"This has not been pressed before you, but this respondent starts out with the presumption of innocence, and that is one reason why this measure of proof is required, and as I said to the other panel a few days ago, that presumption of his innocence is weighty or light in weight in proportion as you find from all the testimony and everything the character of the respondent to be. Some people have that character that the presumption of innocence is very strong, what is shown of their character, very great, and it takes a great deal of testimony to overcome it and establish the charge by this measure so you would not doubt it. Others less weighty, and it is for you toinquire into all this testimony as to what you believe in reference to this man, how much weight you will give this presumption of innocence in connection with the other proof, how much motive it would take to induce him to commit these acts, and you are to look all this through carefully.”

W. H. Bliss, for the respondent.

The testimony of Barnes should have been admitted to show the relation between respondent and Kelley, and as a part of the res gestæ. 2 Bish. Crim. Proc. (3d Ed.) 745; Engleman v. State, 2 Ind. 91; Commonwealth v. Bell, 102 Mass. 163; 1 Bish. Crim. Proc. (3d Ed.) ss. 1083 to 1087; State v. Goodrich, 19 Vt. 116; Danforth v. Streeter, 28 Vt. 490; State v. Howard, 32 Vt. 380; Eddy v. Davis, 34 Vt. 209; Doyle, 40 Vt. 96; State v. Daley, 53 Vt. 442.

Nash v.