#### COLIN McDONALD *against*DANIEL McDONALD.

Equity will give effect to the assignment of a mere expectancy or possibility, not as a grant, but as a contract, entitling the assignee to a specific per* formarme ¡as soon-as the assignor has acquired the power to perform it.

Cause removed from tbe Court of Equity of Cumberland ■county. _

Margaret McDonald, of Sampson county, died in the year 1855, without issue, leaving tbe plaintiff, Colin McDonald, her next of kin and heir-at-law. Letters of administration on her estate were granted to the defendant, Daniel McDonald, ¡at-Term, 1855, of Sampson County Court, and betook possession of her estate, consisting of eighteen negroes and $104,90, in good notes. In 1816, the defendant, as administrator, filed an inventory, in which he omitted to include the slaves, as property, for whio^ he was bound to account-, alleging, that he had purchased them from Colin McDonald, the sole distributee of the estate, and had taken a deed therefor 5 in the following words:

*“*Know all men by these presents, that I, Colin McDonald, of the county of Barbour, and State of Alabama, for and in consideration of the sum of one thousand dollars, to me in hand paid by Daniel McDonald, of the (county of Cumber* *212land, and State of North Carolina, have bargained, sold, transferred and conveyed, and by these presents do bargain, sell, transfer and convey, all the right, title and interest, both legal and equitable, which I now have, or may, at any time, hereafter have in and to the property, or estate, which Margaret McDonald, late of Sampson, but now of Cumberland county, has, that is to say, all the interest which I have, or may have, as one of the heirs-at-law and next of kin of Margaret McDonald; and the right, title and interest, which I have, or may have, in the property, which she now has, or which she may at her death; that is to say, all iny right, title and interest in the lands, which she owns, or may own ; all my right in the negroes which she now owns, or may hereafter have and own; all my interest in the bonds and notes that are now due, and that may be due and owing to her; all my interest in the money which she may have, and the interest which I may have as an heir-at-law, and as one of her next of kin, in any other property which she may own, it being to convey every thing I may be entitled to, to Daniel McDonald, of the county of Cumberland, and State of North Carolina, and I, Colin McDonald, of the county of Barbour, and State of Alabama, for and in consideration of the premises as above mentioned, do hereby relinquish and transfer my right, title and interest to him, the said Daniel McDonald, his heirs, executors, administrators, forever, free and discharged from any claim which I have or may have ; free and discharged also from the claim or claims of any other person or persons whatsoever. And for the better securing the right, title and interest, which I hereby convey, I, for myself, my heirs, executors and administrators, to and with-the said Daniel McDonald, his heirs, executors, administrators and assigns, covenant and forever defend from the lawful claims of any and all persons whatsover. In testimony whereof, I have hereunto set my hand and seal, this the 8th day of October, 1849, in presence of Wm. B. Wright.” (Signed,)

ColiN McDoNald, *[seal.']*

The nearest relations of the intestate, Margaret, at the time *213this deed was executed, were the plaintiff, Colin, and his brother, Neil McDonald, who were her cousins. Neil McDonald, who was the father of the defendant, died before the intestate, Margaret.

The bill alleges, that this deed was procured from the plaintiff by fraud and misrepresentation ; that plaintiff is a weak-minded old man; that the defendant proposed to purchase his interest in the property in dispute; and informed him that in the event of Margaret McDonald’s death, he would be entitled to only one-third of her property; that this interest in one-third, was all that the deed was intended to convey, and that it was so understood by both parties. This much, the bill acknowledges to belong to the defendant under the deed, and it prays an account and conveyance of the other two-thirds.

The defendant, in his answer, denies having exercised any undue influence in procuring the , deed above set out; he states that the plaintiff was then a resident of Alabama; that he came to this State in the year 1849, and applied to séveral persons proposing to sell his interest in the estate of Margaret McDonald ; that he, at length, applied to defendant, and offered to take one thousand dollars for said interest; that plaintiff gave as his reasons for selling it, that he lived at a distance ; that he was growing old, and it was uncertain whether he would out-live Margaret McDonald, and also his brother Neil. lie denies that the plaintiff is stupid, ignorant and illiterate, though getting old. He also denies that he and the plaintiff contracted with reference to any certain interest, but that he purchased at a venture ; that the property, independent'of debts, was worth six thousand dollars at the date of the deed, and that the price paid was a fair consideration, under the circumstances; that the deed was prepared by skillful counsel and read over to the plaintiff, and also explained to him, and he expressed his entire satisfaction with it; and that he had ample opportunity to inform himself of the condition of the estate before he executed this deed.

*Fowle, Kelly*and *Wm. McL. McKay,*for plaintiff.

*J. JEL. Bryan*and *K P.*Battle, for defendant.

*214Battle, J.

The proofs satisfy ns beyond a doubt, that the instrument which the plaintiff seeks to impeach was-obtained by the defendant fairly and without fraud, or the exercise of any under influence ; that the plaintiff was, at the- time when he executed it, entirely capable in law to do> so; that he fully understood it's import and meaning; and that the consideration which he received for it was under the circumstances, fair, if not fully adequate. It cannot, therefore, be set aside either upon the ground of fraud, undue influence, want of capacity in the assignor or for a defect of consideration. If, then, the plaintiff be entitled to the relief which he seeks, either in whole or in part, it must be because the instrument in question is inoperative, either because there was, at the time when it was executed, no interest in him upon which it could operate, or because it is illegal as being against the policy of the law; or, if neither'of these objections be good, that it does not convey or bind the whole of the plaintiff’s interest in the estate of the defendant’s-intestate.

It is. very clear that, at the time when the instrument was executed, it could not operate as a conveyance or assignment of what it purported to transfer. Margaret McDonald, the defendant’s intestate, was then living and the plaintiff had but a mere possibility or expectancy of an interest in her estate. He was at the time one of her nearest blood relations, and had a chance by out-living her, to become entitled to a part or to the whole of her estate as heir at law and next of kin, but. he had no interest, or possibility coupled with an interest in it. It follows as a matter of course, that he did not have any thing which lie could assign or transfer to another either at law or in equity. But he had a right to make a contract to convey whatever interest he might in future have in his cousins’s property, and such a contract, when fairly made upon a valuable consideration, the court of chancery will enforce whenever the property shall come into his possession. Thus it is said, and the assertion is well sustained by the authorities both in England and in this country, that “Chancery will give effect to the assignment of a mere expectancy or possibility,not *215as a grant, but as a contract entitling the assignee to a specific performance, as soon as the assignor has acquired the power to perform it.” See the American edition of White & Tudor’s Equity cases, 72 Law Lib. 202 and 224, which cites *Hobson v.*Trevor, 2 P. Will. 191; *Buckley*v. *Newland, Ibid.*182; *Wright*v. *Faucett,*1 Ves. Jun., 409; *Alston*v. *The Bank,*2 Hill, Ch. Cases 235; *Breckenridge*v. *Churchhill,*3 J. J. Marsh. Rep. 13; see also Smith on real and personal property 89 Law lib. 457, and Fry on the specific performance of contracts, 100 Law lib. 263, and the cases particularly of *Wiseman*v. *Roper,*1 Rep. in chan. 154; *Alexander*v. *Duke of Wellington,*2 Russ. & Myl. 35; *Persse*v. *Persse,*7 Clark and Fin. 279; *Hinde*v. *Blake,*3 Beavan 235, and *Meek*v. *Kettlewell,*1 Phil. Rep. 347.

It is true that the policy of giving effect to contracts of this kind against expectant heirs has been doubted by very eminent judges; and C. J. Parsons in *Boynton*v. *Hubbard,*7 Mass. Rep. 112, refused to sanction an assignment made by a nephew in the life-time of his uncle, of his expectant interest in that uncle’s estate. But the doctrine is now too well established to be disregarded, and the authorities to which they refer, fully sustain White & Tudor in saying that “ a mere expectancy, as that of an heir at law to the estate of his ancestor, or the interest which a person may take under the will of another then living, or the share to which such person may become entitled, under an appointment, or in personal estate as presumptive next of kin of a person then living, is assignable in equity for a valuable consideration ; and where the expectancy has fallen into possession, the assignment will be enforced.

Having decided that the instrument in question is binding upon the plaintiff, it only remains for ns to enquire what is the extent of the interest, upon which it operates ? It is contended by the plaintiff’s counsel that at most it can bind only the apparent expectant interest which the plaintiff had in his cousin’s estate at the time it was executed, which, as his brother Neil was then alive, was only one-half. The language of the instrument is as broad and extensive as it could well have *216been made, and embraces every thing which, in any possible contingencjq could accrue to the grantor from the estate to which it relates. It is quite probable that neither party fully considered what might eventually come within its operations, but they agree to take the chances and they must now abide by the result. Had the plaintiff died before his brother in the life-time of the intestate, or had they both died before her, then the defendant would have taken nothing by his contract. Had bo.th brothers out-lived their cousin, the defendant could have claimed, under the assignment, only one-half of the estate, blit as the events occurred which were most favorable to him, he gets all.

The result is, that the plaintiff has no equity in the claim which he prefers. If he had in any way obtained the possession of the property of the intestate, the court of equity would have compelled him to convey it to the defendant; and it follows, as a necessary consequence, that, as it is already in the hands of the latter, the Court will not aid the plaintiff in getting it from him.

Per CuRiam, Pill dismissed with costs.