*Camden.*

Heard by Chancellor James.

#### Barton Harris, appellant, *vs.*Gilbert Dinkins, Joseph Brown, John R. Carter, and wives, respondents.

Receipts given by heirs and distributees of an estate, to an administrator, for their shares of the estate, shall no'tbe presumed or construed to extend to their interests in the real estate, unless distinctly expressed ; especially where the money received is greatly inadequate to their chares.

Parol evidence not admissible to extend the meaning and operation of such receipts, by stating that it was the intention of the parties to re-, lease their interests in the real estate, particularly where the parol evil dence offered is dubious arid uncertain.

Gilbert Dirkirs, Joseph Brown anil John R., Carter, who bad married daughters of John Harris, deceased, filed their bill against Barton Harris, Son of the said John Harris, who has possessed himself Of bis father’s real estate, and has also administered On his father’s personal estate, for an account of the rents and profits of 1 he real estate, and for a partition and division thereof among the complainants, and the said Barton Harris.

The bill charged that John Hams was seized and "possessed of a real and personal estáte, and no will having been produced and established, the children of the said John Harris, were entitled *to*equal shares Of said estate under and by virtue of the act for abolishing the rights of primogeniture, enacted in February, 1791.

That John Harris, besides two tracts of land of which he liad the legal title, had contracted with John Abbot, for another tract of land, and paid hint part of the consideration money for the *same;*and John Abbot dying soon after, his son and heir, Hcm*3r Abbot, executed a bond oil 06th July, 1790, by which he bound hhnselfto make titles to the said John Harris. That Barton Harris hath since the death of his father John obtained conveyance of the said land .from the said Henry Abbot to himself, and in his own name, to the exclusion *61*jií*his sistcís $ and he refuses to account to them for the rents and profits of said real estate, and to divide the said estate according to law.

The defendant in his answer insisted that he had set-tied with the complainants for their respective shares in the real and personal estate of their father, John Harris, deceased ; and that he was not liable to their demand.

JUNE, 1809.

At the hearing of the cause, the defendant produced and relied «pon certain receipts given him by the complainants respectively for their several shares in the said estate, which are more particularly noticed in the decree.

The complainants insisted that these receipts related' only to the personal estate. The defendant then offered parol evidence to prove that though these receipts did not express to be in full for the share of the complainants in the real estate, yet it was intended to he so $ and that if the receipts were defective in expressing the real estate, the omission Was by mistake, and that the complainants had repeatedly made declarations to other persons that they had sold their shares in the real estate to the defendant, and that the receipts were intended to comprehend the same. The admission of this parol evidence was objected to as contrary to the statute of *frauds;*such evidence relating to their interests in real estate, and to an alleged release of their rights therein.

The judge permitted the evidence to be given, without prejudice, but afterwards decided that the same was not admissible, and could not be used in the cause.

It appeared at the hearing that the defendant had settled fully with J. R. Carter and his wife, for their sharo of the real and personal estate, and their names were struck out of the bill with their consent.

After the hearing judge James delivered the following decree:

In the investigation of the question arising out of the receipts alleged to have been given by the complainants-in full for all their claims and interest in the real, as well ns the personal estate, the court will consider first, whether sufficient appears upon the face of them to carry boih real and personal estate ? And secondly, if they are *62no{; sufficient for that purpose, whether parol evidence ¿(ui bo admitted to supply parts of them which were intended to be inserted as is alleged, but were mistaken or misapprehended by the drawers of them.

1st point. As to the construction. And as the receipt from Gilbert Dinkins was stated by defendant’s counsel, to be the most full and complete, we will first consider' that. It is as follows: “ Received 14th March, 1794* from Barton Harris, administrator of the estate of John Harris, his note of hand, for four likely cows and calves, which when paid, will be in full for my c lairn against the said estate, as heir and son-in-law to the said Job» Harris» deceased, and all other demands whatever, except a pair of side lines, borrowed by me, of Mr. Hooper, for the usd of the estate.”

The most comprehensive words in it, are, *“*will he *in*'full for my claim against the estate, and all other demands whatever.” Now if these words were to he taken in the. strict legal sense, unconnected with other words, there could be no doubt as contended by defendant’s counsel but that they would carry the real estate also. Th<v words *ie*in full of the estate,” signifying all that the re-leasor could possibly grant or was entitled to. Bui there are other words in the release, which must defeat their operation in the extent contended for; these arc, « Received from Barton Harris,” &c. as administrator of the estate; it is plain that Barton Harris the rclcs-see, had no power over the lands to do any legal and efficient act respecting them. Therefore the receipt must be confined to the extent of his powers as administrator, and in a strict legal' sense cannot be construed to include the real estate. The court, however, thinks the receipt from Joseph Brown more full and comprehensive, than the one from Gilbert Dinkins, • The words are “ Received, September 3d, 1798, Barton Harris twenty-five pounds sterling, it being in full for my share of the estate of John Harris, deceased, which I became entitled to in consequence of my marriage with Sarah Harris. Witness my hand and seal.

Joseph BeownJ1

*63Here it is to be observed that the release is not taken from tlie defendant as administrator, and that it is *“*in MI of bis share of the estate of John Harris, deceased, to which he became entitled in right of his wife/’ in a strict legal sense, therefore, this receipt would seem to include the real estate. But there are two circumstances ■which induce the court to think that the lands were not in the contemplation of the parties at the time of making tiie release. The first is to be collected from the face of the receipt, and, indeed, is applicable to both of them, it is the great inadequacy of the price contained in them. The second arises from matter extraneous, and is the meaning generally annexed to the word estate in common parlance. Inadequacy of price has not, indeed, been considered in equity, as a sufficient ground to set aside a contract, which otherwise has been fairly made ; but where a contract is uncertain as. to its extent, and may include one or the other of two subjects, there inadequacy of price is a strong ground to conclude that men ,of common sense would ever intend to part from the whole of their rights to both where the price was grossly inadequate. The lands in question contain 450 acres, and wore, as the evidence states, never worth less than seven shillings per aero, and are now said to be worth ten dollars per acre. Then it appears evident that the price contained in the receipts can bear no proportion to the real value of the lands and personalty both, at any given period. Those prices, however, do appear to ho proportioned to the personalty alone, which each complainant was entitled to, and therefore it may be reasonably concluded that the receipts were intended to extend no further. The other circumstance weighing somewhat with the court, arises from the use of the word estate, in common parlance $ and this, it is pretty well known, is not fixed and technical, but may mean real'or personal estate, or both together. These instruments were not drawn by legal men, and since, if they were to be extended to both real and personal estate, it would produce a gross inequality in the distribution of the property, it appears to bo most equitable to confine iheir *64construction to one ov the otiier. There is another rea'-son why it,should be confined to personal estate : The povvei’s vested ixx the relessee, by law as administrator,, relate to the personalty, and it is not to bo presumed that lie was acting beyond the. authority which was vested in him. In this point of view, whether the capacity in which he acted be expressed in'thebody of the receipt or not, it can make little difference, the presumption still is that ho acted as administrator. As to the form of these receipts, the court will observe, that although no exact form of words would have been necessary to carry the real estate,' yet it appears the receipts want substance. Had tiiey been made to defendant as heir, or contained flic words real and personal estate,' then there would have been little doubt.

Next as to the second question — whether parol evidence can be admitted to supply parts of these receipts which were mistaken or misapprehended by the drawers of them? On this ground the court is of opinion, that, in certain cases where the object is not to add to or vary the contract, such evidence might be admitted, but if the-evidence is to prove a mistake in the drawers, to avoid that perjury which the statute is so careful to prevent, it ought to be the highest the nature of the case would admit of, and confined to the drawers themselves or some other persons present when the instructions were given. It ought not to rest upon the vague declaration of the parties concerning the agreement that is to ho made, or has been ¡nade in writing," nor does it seem that it .should depend upon the vague recollection of witnesses, without some memorandum in writing. For to admit evidence so uncertain would be to encourage that perjury which the statute would guard so carefully against. Mr. Hor-an, one of the drawers, does indeed state, “ that he was under aix impression, that the claim to the real estate was included 5 but he'also states, that he has no particular recollection of the understanding between the parties.” This evidence thei’eforc is not conclusive, and Mr. Bay. who drew the other instrument, Isas xxot been examined, although it appears to be essential. For these rea’sonit *65therefore the court is of opinion, that the parol evidence now offered should not bo admitted, as tending to vary the contract, and not such as is admitted by law. The court likwisc thinks that defendant should be considered as a trustee for the complainants of the abbot tract, and that complainants are still entitled to their shares respectively of the other lands, notwithstanding the receipt. Therefore upon the complainant’s paying up the defendant one half the monies laid out by him in paying for the •abbot tract with interest, let him make them titles tí» their respective portions of the same in right of their wives, and also for the other lands: and let him pay up their proportions of the rents and profits of the whole lands — and also let it bo referred to the commissioners to report the sums to be paid by each respectively, and •to approve of said titles.

W.