dispose of her property, and was unaware of the extent, amount, or nature of her property, or of its value, and was obliged to rely entirely upon other persons for the management of her property and affairs"; and that during all that time the said Purrington and other persons unknown to petitioner were in constant intercourse with her, and exercised an actual authority and dominion over her mind, and said persons, for the purpose of preventing the petitioner, as heir and next of kin, from coming into any portion of her estate by succession, or under her will, “had, prior to the making of said will, poisoned the mind of said Catherine M. Garcelon against the petitioner, and so induced her to dispose of almost all her property in trust, and to appoint the said Stephen W. Purrington and others as trustees thereof." Immediately following this statement the petition alleges: "The said Catherine M. Garcelon obtained all of her said property from the estate of her brother, Dr. Samuel Merritt, who died on or about the 14th day of August, 1890, and prior to that date she had not been, and was not, possessed of any property, real or personal, but was dependent upon the said Samuel Merritt for her support and subsistence." The petition then proceeds to state certain alleged false representations which were made to the decedent for the purpose of injuring the petitioner in her estimation, and to cause her to make the will in question, and alleges "that the said Catherine M. Garcelon, being thereby influenced and not otherwise, and not of her own voluntary act or will, made the said purported will." The petition further states that the said Purrington and others, for the purpose of securing a great benefit to themselves, "coerced and caused" the said decedent to subscribe her name to said will, and finally avers that she, at the time the "said purported last will and testament was made, was mentally unable to resist the said dominion and controlling influence of said persons, and was unable to understand the contents of said document, and never did understand or know the same." The petition also alleges that the petitioner and his brother, Frederick A. Merritt, are the nephews and the only next of kin of said Catherine M. Garcelon, and this averment is not denied.

The executor and the administrator with the will annexed answer separately, but beth answers are in all respects the same, and deny that the said Catherine M. Garcelon was of unsound mind, or incompetent to make a will, or that the will probated as her last will and testament was executed under undue influence; and, in addition to these denials. state the following facts as a separate defense to the matters alleged in the petition: On or about August 17, 1890, one Samuel Merritt, a brother of Catherine M. Garcelon, died, leaving a large estate and a will by the terms of which the greater part of his estate was given to his said sister, and

only a small portion thereof to his nephews, the petitioner here and his brother, Frederick A. Merritt. This will was duly admitted to probate on September 15, 1890. The petitioner and his brother were dissatisfied with its terms, and threatened to contest the probate thereof, and employed a lawyer for that purpose; but a compromise was effected, and said Catherine M. Garcelon and the petitioner and his brother entered into a written contract, by the terms of which the former was to pay to her said two nephews the sum of $125,000, and also to convey certain real property to a trustee upon a certain condition subsequent, the trustee to collect and pay over the income to the nephews, and in consideration of which the latter were to release to their said aunt their claims as heirs of her brother, Samuel Merritt, and for that purpose were to execute to her a proper deed of conveyance of their interest in said estate; and it was further agreed that this deed should "contain such apt words of warranty and covenant as may be prescribed and approved by the counsel of the parties of the first and second parts, respectively, to the end of securing to the party of the first part full right and ample power to dispose of all of the property derived by her from the said Samuel Merritt, or by the deed of conveyance and transfer herein provided for; also of all the income to be derived therefrom, and of all the property, real and personal, which the party of the first part now owns or hereafter may acquire, either by deed or last will and testament, without any right, power, or au thority of the parties of the second part hereto, or either of them, or their respective heirs or assigns, to question, dispute, or contest the same in any manner or to any extent whatever." And it was further provided that said nephews should also execute any other separate agreements and covenants which might be deemed necessary to secure to the said Catherine M. Garcelon the right to dispose of the property mentioned in the deed, either by deed or will, free from any possibility of contest by them. On the same day the petitioner and his brother executed to the said Catherine M. Garcelon an agreement which, after referring to the death of Samuel Merritt, and the fact that he had left a large estate and a will by which the great bulk of it was devised and bequeathed to their aunt, and that they were dissatisfied with said will, and had threatened to con test the same, proceeded as follows: whereas, the undersigned and said Catherine M. Garcelon have mutually agreed upon a settlement and adjustment of their respective property rights and interests in the property and estate of which the said Samuel Merritt was seised or possessed, and in such settlement and adjustment the said Catherine M. Garcelon has made satisfactory provision for the undersigned; and, whereas, the said Catherine M. Garcelon has been induced to make such settlement and adjustment and

"And

such provision for the undersigned in reliance upon their respective promises and agreements that they, nor either of them, would never, at any time hereafter, in any manner, or to any extent, question, dispute, or contest, as her heirs at law or otherwise, any disposition which she may have made, or may hereafter make, by deed or will, of any or all of the property derived by her from the estate of the said Samuel Merritt: Now, therefore, for and in consideration of the premises, the undersigned do hereby promise, covenant, and agree to and with the said Catherine M. Garcelon, her devisees, legatees, and assigns, that they, nor either of them, nor their respective heirs, shall or will, at any time hereafter, assert any right, title, or interest, as the heir or heirs at law of the said Catherine M. Garcelon, to the property, real and personal, derived by her under the said last will and testament of the said Samuel Merritt." In addition to the foregoing agreement, the petitioner and his brother also executed to their aunt a deed purporting to convey and assign to her all their interest in the property of the estate of Samuel Merritt, real, personal or mixed, or in which they could have an interest as heirs at law of said Merritt. This deed also contained a covenant on their part whereby they agreed "with the said Catherine M. Garcelon, her heirs, devisees, legatees, executors, administrators, and assigus," not to question or contest any disposition of any of the property belonging to said estate which the said Catherine M. Garcelon "may have made, or may hereafter make, either by deed or by her last will and testament," and that neither of them would ever make any claim to any portion of the property derived by her under the will of Samuel Merritt, except such as he might be able to assert as a devisee or legatee under her last will and testament. The answers further aver that the said Catherine M. Garcelon fully complied with all the terms of the compromise agreement on her part to be kept and performed, and that all of the estate of which she died possessed was derived from her deceased brother, the said Samuel Merritt, and under the terms of his will. The genuineness and due execution of the several contracts and writings set out in the answer were not denied by the petitioner; but he moved to strike from the answers all the averments relating to the same as irrelevant and immaterial, and also demurred to the separate defense based upon the said alleged contracts. The motion to strike out was denied, and the demurrer overruled. The petitioner also filed in due time a written request that the issues of fact relating to the competency of the decedent and her freedom from undue in fluence be tried by a jury. This request was denied, and thereafter the case came on for trial before the court without a jury, and upon the hearing the defendants "offered in evidence" the original contracts and deeds

referred to in their answers, and also offered to prove the truth of the recitals therein contained, and that said terms were fully performed by the said Catherine M. Garcelon. The court ruled that none of said evidence was necessary or proper, the genuineness and due execution of said contracts and deeds being admitted; and thereupon the defendants moved to dismiss the petition of the appellant upon the ground that he was estopped by said contracts and deeds from questioning the validity of the will of said Catherine M. Garcelon, and upon the further ground that it appeared that he had no interest in the estate of said decedent. This motion was opposed by the petitioner upon certain specific grounds, which will be hereafter stated. The objections of petitioner were overruled, and the court made an order dismissing the petition upon the grounds stated in the motion of defendants.

Horace W. Philbrook and Alfred H. Cohen (J. C. Martin and A. A. Moore, of counsel), for appellant. H. C. Campbell, Warren Olney, E. Nusbaumer, and John Garber, for respondents.

DE HAVEN, J. (after stating the facts). 1. Notwithstanding the genuineness and due execution of the compromise agreement, as contained in the several instruments set out in the answers, were admitted by the failure of petitioner to file an affidavit denying the same (Code Civ. Proc. § 448), he still insists that the court erred in dismissing the petition without giving him an opportunity to show that such agreement was in fact without consideration, or that his consent thereto was obtained by fraud, or that it had been extinguished by rescission, or that performance thereof had been waived by the deceased. It is true that by the terms of section 462 of the Code of Civil Procedure new matter in an answer is deemed to be controverted without any special replication, and under that section a plaintiff has the right, while not denying the genuineness and due execution of an instrument set out in an answer, to show other matters in confession or avoidance thereof. But, unless he brings to the attention of the trial court his purpose to offer such evidence, that court cannot assume that he desires to make any such defense; and in this case the motion of defendants for a dismissal of the petition was not opposed upon the ground that the petitioner desired to offer any proof tending to show that the contracts and deeds set out in the answers were not freely entered into by the parties thereto, and for an adequate consideration, or that the same were superseded by any subsequent agreement, or that the said Catherine M. Garcelon had ever waived performance of the agreements therein contained. On the contrary, the motion was opposed upon the grounds-First, that the instruments set out in the answer con

tained no matter sufficient to estop the petitioner from maintaining this proceeding, or from showing that he has an interest in the estate of Catherine M. Garcelon; and, second, that no trial of the issues of fact tendered by the petition had been had, and that petitioner had been denied a trial of such issues by a jury. The court below, therefore, properly assumed that these were the only grounds upon which the petitioner opposed the motion, and it is too late to suggest here for the first time that he was entitled to make proof of other facts showing his right to contest the will of deceased, and which would have been sufficient to avoid the estoppel which the trial court held resulted from the compromise agreement.

2. The main question arising upon this appeal relates to the construction and effect of the compromise agreement set out in the answers. That agreement seems to have been prepared with great care, and there is no ambiguity in any of its provisions. By its terms the appellant and his brother waived their right as heirs of Dr. Merritt to contest the will left by him, or to claim any portion of the estate bequeathed and devised by him to their aunt, other than the portion thereof which she gave and relinquished to them by that agreement; and in consideration of the property thus secured to them they further agreed "that they, nor either of them, nor their respective heirs, shall or will at any time hereafter assert any right, title, or interest, as heirs or heirs at law of the said Catherine M. Garcelon, to the property, real and personal, derived by her under the said last will and testament of the said Samuel Merritt"; and, doubtless for the purpose of making the foregoing agreement upon their part more effectual, the appellant and his brother, in the deed executed by them for the purpose of carrying out the compromise agreement, and which is to be construed as a part of such agreement, covenanted "to and with the said Catherine M. Garcelon, her heirs, devisees, legatees, executors, administrators, and assigns," that they would not "in any manner, or to any extent, question, dispute, or contest any disposition of the property above mentioned or referred to, or any part thereof, or of any property which may be acquired therefrom or thereby which the said Catherine M. Garcelon may have made or may hereafter make by either deed or by her last will and testament." There is not the slightest contention that the parties to this agreement were not fully competent to contract in relation to their property rights, and the agreement itself recites that it was entered into "after full examination into the facts, and full and deliberate consideration of the premises"; and there is nothing upon its face to suggest that the differences thereby compromised were not settled upon fair and equitable terms, nor was there any offer to prove extrinsic facts for the purpose of imv.38p.no.7-27

peaching the agreement in this or any other respect. The questions for decision, therefore, are whether such an agreement, based upon a full and adequate consideration, and entered into with deliberation by parties in every way competent to contract, is valid and binding; and, if valid, is the petitioner thereby estopped from maintaining this proceeding to revoke the probate of the alleged will of his aunt? The agreement, as we have seen, in addition to his promise not to contest the will of his uncle, Dr. Merritt, contains two distinct covenants upon the part of the petitioner: First, that he would not thereafter, as an heir at law of his aunt, Mrs. Garcelon, assert any right to the property derived by her under the will of his said uncle; and, second, that he would never in any manner question or dispute any disposition which she might make of that property, by deed or will. The first of these covenants is in substance and effect an agreement upon the part of the petitioner to relinquish, as heir apparent, his expectancy in that portion of the estate of his aunt to which the agreement related. It is claimed by the petitioner that such an agreement is void under sections 700 and 1045 of the Civil Code of this state, the first of which provides that "a mere possibility, such as the expectancy of an heir apparent, is not to be deemed an interest of any kind," and the latter section declaring that "a mere possibility, not coupled with an interest, cannot be transferred."

These sections simply state the well-settled and well-understood rule of the common law upon the subject to which they relate. At common law, a mere possibility, such as the expectancy of an heir apparent, was not regarded as such an existing interest as to be the subject of a sale or capable of passing by assignment; but in equity the rule was different, and agreements for the sale or release of expectancies, if fairly made, and for an adequate consideration, were enforced upon the death of the ancestor; and it was not the intention of the legislature, in enacting the sections of the Code just referred to, to make any change in the rule by which courts of equity were theretofore governed in dealing with this class of contracts. This construction of these sections is in harmony with section 5 of the same Code, which declares that the provisions of that Code, "so far as they are substantially the same as existing statutes or the common law, must be construed as continuations thereof, and not as new enactments"; and also follows the presumption that the legislature, in the enactment of statutes, does not intend to overturn long-established principles of law unless such intention is made to clearly appear, either by express declaration or by necessary implication. Mr. Story, in section 1040c (volume 2) of his work on Equity Jurisprudence, states the equitable rule upon the subject of such agreements as the one before us as follows: "So, even the

naked possibility or expectancy of an heir to his ancestor's estate may become the subject of a contract of sale or settlement; and in such a case, if made bona fide for a valuable consideration, it will be enforced in equity after the death of the ancestor; not, indeed, as a trust attaching to the estate, but as a right of contract." And see, also, as sustaining the same proposition, Pom. Eq. Jur. (2d Ed.) §§ 168, 953; Bacon v. Bonham, 33 N. J. Eq. 614. In accordance with this principle, it has been held in many cases in which the question has arisen that an heir may release to the ancestor his expected share in the ancestor's estate. Thus in Havens v. Thompson, 26 N. J. Eq. 383, it was held that a son, by such release to his father, estopped himself from claiming as heir any portion of the father's estate. In that case it appeared that the father gave to the son the sum of $600, upon the condition that it should be accepted in full satisfaction of his interest in the father's estate, the son executing a receipt stating that the money was received "in full in lieu of dowry." The chancellor construed the receipt in view of the facts surrounding its execution as a release, and said: "I regard this instrument as an agreement by which Benjamin, in consideration of the money paid to him by his father, agreed with the latter that he would make no claim to a share of his father's estate, should the latter die intestate, but therefrom would be debarred by that instrument, made upon what was a satisfactory compensating consideration. Such an agreement may be made between a father and his child in regard to the interest of the latter in the estate of the former, and effect will be given to it in equity according to the intention of the parties." And the rule thus declared was afterwards approved in Brands v. De Witt, 44 N. J. Eq. 545, 10 Atl. 181, and 14 Atl. 894. In Bishop v. Davenport, 58 III. 105, it was shown that the father in his lifetime gave to certain of his children property, and took from them an instrument in writing in which they acknowledged that such property was received by them as their full share of his estate. The father died intestate, and the court, in passing upon the question, held that the transaction was not an advancement, and that the instrument signed by the children operated as a release by them of their expectancies in their father's estate, and should be upheld as such. So, also, in Kershaw v. Kershaw, 102 Ill. 307, a son accepted from his father a deed, the deed reciting that "said land is deeded as an advancement to said John W. Kershaw out of the estate of said Joseph Kershaw, and the deed is accepted by said John as his full share of his father's estate." The court in that case held that the acceptance of the deed bound the son to the same extent as if he had signed it, and that the conveyance did not constitute an advancement, but operated as "an executed con

tract whereby an heir released his expect. ancy in his father's estate in consideration of a present grant of real estate." And it was further there decided that the son was estopped from making any further claim as heir at law to any portion of his father's estate. In Crum v. Sawyer, 132 Ill. 443, 24 N. E. 956, the court in a well-considered opinion held that a husband might for an adequate consideration enter into a valid contract with his wife releasing all his interest as her heir in her lands and personal estate, saying: "There can be no question, then, that the complainant's contingent interest or expectancy, as the heir of his wife, in her real and personal estate, was a proper subject of contract; and, the contract in question having been made upon a valuable consideration by parties capable of contracting with each other, and, so far as the evidence shows, with entire fairness, it should, as to such contingent interest or expectancy, be enforced according to its terms." And in Powers' Appeal, 63 Pa. St. 443, it was decided that a father might make a contract with his child which would bar the latter as his heir at law, and that when property had been received by the son from the father, the son giving a receipt reciting that the same was received in full of his share as heir at law, he was thereby estopped, upon the death of the father, from claiming any further part of his estate. Without multiplying authorities upon this point, and many others might be cited to the same effect,-it is sufficient to say that we are entirely satisfied with the rule declared in the foregoing cases, and hold that it is competent for an heir, under the limitations stated in that rule, to relinquish to his ancestor all interest in the estate of the latter which might otherwise in the future vest in him as such heir. In Crum v. Sawyer, 132 Ill. 462, 24 N. E. 956, it was held that such a relinquishment would inure to the benefit of the other heirs, whether mentioned or not, and in all the cases we have cited the release so made to the ancestor was enforced in behalf of other heirs. In this case, however, it is claimed by the petitioner that the pleadings admit that he and his brother are the only heirs of Mrs. Garcelon; and it is thence argued-First, that, if in fact she died intestate, her property must, under the statutes of this state, be distributed to them, notwithstanding they may by the compromise agreement have relinquished to her their rights as such heirs; and, second, that the defendants are strangers, in no way in privity with that agreement, and therefore are not entitled to claim the benefits of its provisions. In the view we take of this case, it is not necessary to determine what force, if any, there might be in the first of these contentions, if Mrs. Garcelon had in fact died intestate, and the question arose upon the distribution of her estate as that of an intestate. It is

admitted that Mrs. Garcelon executed, apparently in due form of law, a document which upon its face purports to be her will, and which, if valid, disposed of all her estate, consisting of all the property referred to in the compromise agreement of which she died possessed, and the same has been duly admitted to probate as her last will and testament. So long as this judgment stands, it cannot be said that the deceased died intestate, and, unless the petitioner succeeds by this proceeding in annulling the said judgment of probate, the question as to what would have been his rights as her heir at law if she had died intestate can never arise. The court below held that the petitioner was estopped by the compromise agreement from attacking the validity of the alleged will of the deceased, and this was one of the grounds upon which the court based its judgment dismissing the present proceeding.

3. This conclusion of the learned judge of that court was doubtless based upon a consideration of that part of the compromise agreement in which the petitioner covenanted with Mrs. Garcelon, "her heirs, devisees, legatees, executors, and administrators," that he would "never, in any manner or to any extent, question, dispute, or contest any disposition of the property" mentioned in that agreement "which she may have made, or may hereafter make, by either deed or by her last will and testament." If this covenant is valid, and is sufficiently broad to apply to and include the will in controversy here, it is clear that the defendants, as executors of the disputed will, are in such privity with the alleged testator that they have the right, as against the petitioner, to invoke the benefit of this covenant not to contest (Dakin v. Dakin, 97 Mich. 289, 56 N. W. 562); and it would follow that the court below was correct in its ruling upon this point. This particular covenant was evidently introduced for the purpose of supplementing the other part of the compromise agreement, in which the petitioner relinquished to his aunt his expectancy as her heir at law, and was intended by him as a complete relinquishment or release of all right to contest any will which his aunt might in fact sign, and purporting to be executed in due form, and which right of contest might otherwise, as a matter of possibility, come to him in the future as her heir at law; and the covenant is not to be construed as applying solely to such a will as the petitioner might deem valid, or which might be adjudged valid after a long and tedious litigation of the question of its validity. To place such a construction upon the agreement would deprive it of all practical meaning and effect. The agreement not to contest was made in view of the fact that under the law an heir is given the right to contest, upon various grounds, the validity of the document which may have been intended by the ancestor as

his last will and testament, some of these grounds often involving doubtful questions of law and fact, the latter, perhaps, depending for their decision upon the conflicting evidence of witnesses, and also upon the verdict of a jury which may be more or less influenced by sympathy or caprice; and the covenant of the petitioner was that he would not bring such questions concerning any will made by his aunt into dispute or litigation. Such being its true construction, we are brought to the consideration of the question, is such an agreement upon the part of an heir binding upon him? The covenant not to sue for a breach or for the enforcement of an existing obligation operates as a release of such obligation; and, unless void as against public policy (a point to be hereafter noticed), this covenant not to contest the will of Mrs. Garcelon should be given effect as a release by the petitioner of his right to make such contest. It is true that at common law a mere possibility was not the subject of release, and that a release was held to operate only upon a present interest. Pierce v. Parker, 4 Metc. (Mass.) 80; Reed v. Tarbell, Id. 93. A covenant made by one person not to sue another for or in respect to any matter arising out of future contracts between them, or by reason of any future tort, would of course be utterly void, as the parties to such contract could not have in view any particular subject-matter, or have any conception of the amount which might be involved in the causes of action upon which the covenant was to operate. But in this case the subject-matter of the covenant was in the mind of the contracting parties, and was in its nature no more fleeting and unsubstantial than the assignment of an expectancy; and the same principle upon which courts of equity uphold such assignments will sustain the proposition that a release by an heir apparent of his contingent right to contest the will of his ancestor may also be enforced when fairly obtained, and for an adequate consideration. The two contracts stand upon the same basis. Both relate to possibilities, and both concern the same subject-matter,-the expectancy of the heir; the purpose of the latter agreement being to take away from the heir any right to assert any claim to such expectancy, in the face of a will bequeathing or devising it to another, and both are equally entitled to enforcement.

4. It is argued, however, in behalf of petitioner, that such an agrement is void because against public policy; and in support of this contention the case of Insurance Co. v. Morse, 20 Wall. 451, is cited. In that case it was held that an agreement by an insurance company, in its contract of insurance, not to litigate in the federal courts any claim arising upon the contract, was void; and in Nute v. Insurance Co., 6 Gray, 174, a similar question was decided in the same way, and the reasons for such a conclusion were very