says: "Let us now pass to the consideration of the third class of constructive frauds, combining in some degree the ingredients of the others, but prohibited mainly because they unconscientiously compromit or injuriously affect the private rights, interests, or duties of the parties themselves, or operate substantially as frauds upon the private rights, interests, duties, or intentions of third persons." Again it is said (section 333): “But the great class of cases in which relief is granted under this third head of constructive fraud is that where the contract or other act is substantially a fraud upon the rights, interests, duties, or intentions of third persons. And here the general rule is, that particular persons in contracts and other acts shall not only transact bona fide between themselves, but shall not transact mala fide in respect to other persons who stand in such a relation to either as to be affected by the contract or the consequences of it. And as the rest of mankind besides the parties contracting are concerned, the rule is properly said to be governed by public utility." Section 334: "It is upon this ground that relief has been constantly granted in what are called 'catching bargains' with heirs, reversioners, and expectants during the life of their parents, or other ancestors. Many, and indeed most, of these cases, as has been pointedly remarked by Lord Hardwicke, have been mixed cases, compounded of almost every species of fraud, there being sometimes proof of actual fraud, which is always decisive. There is always fraud presumed or inferred from the circumstances or conditions of the parties contracting, from weakness on one side and usury on the other, or extortion or advantage taken of that weakness. There has always been an appearance of fraud from the nature of the bargain, even if there be no proof of any circumvention, but merely from intrinsic unconscionableness of the bargain. In most of these cases have concurred deceit and illusion on other persons not privy to the fraudulent agreement. The father, ancestor, or relation from whom was the expectation of the estate, has been kept in the dark. The heir or expectant has been kept from disclosing his circumstances, and from resorting to them for advice, which might have tended to his relief and also reformation. This misleads the ancestor who has been seduced to leave his estate, not to his heir or family, but to a set of artful persons who have divided the spoils beforehand." See, also, sections 335, 336. It is laid down as a rule that "it will be sufficient to make the purchase unimpeachable, if a fair price, or the fair market price, be given there for at the time of the dealing." Section 336.

In treating of this subject, Pomeroy, in his work on Equity Jurisprudence (volume 2, pp. 473, 474, § 953), says: "Equity, therefore, treats such dealings with expectant interests as a possible fraud upon the heirs and reversioners who are immediate parties to the transaction, and as a virtual fraud upon their ancestors, life tenants, and other present owners." And it is further said: "But in every such conveyance or contract with an heir, reversioner, or expectant, a pre

sumption of invalidity arises from the transaction itself, and the burden of proof rests upon the purchaser or other party claiming the benefit of the contract to show affirmatively its perfect fairness, and that a full and adequate consideration was paid—that is, the fair market value of the property, and not necessarily the value as shown by the life tables." The same rule is applied to this class of cases whether the grantor be an infant or an adult.

From the rule as laid down by Story and Pomeroy, and which we have quoted, it will be seen that such contracts are looked upon with suspicion, and that they are presumed fraudulent, and will not be enforced except it be clearly made to appear to be a perfectly fair transaction, and that the actual, full, and fair market value was paid for the property; and, indeed, before such a sale will be enforced, we think it also within the rule, and necessary to the enforcement of such a contract, to allege and prove that such contract and sale were made known to the ancestor or person from whom the estate is expected, and he put in full possession of the facts concerning such transaction, and his consent obtained to such contract, sale, or conveyance; that if not made known to him, it operates as a fraud upon him. 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 the father or ancestor, and that the latter will not dispose of the property, and will die intestate, whereby the grantor will at some time in the future inherit an interest which he can then convey. It operates as a fraud upon the ancestor, and divests his bounty from the 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.

We are not prepared to say that some case might not arise in which it would be inequitable not to enforce a contract made with an heir for his future prospective inheritance in the estate of his ancestor, but we do not think the facts alleged in the cross-complaint present a case entitling the cross-complainant to relief. It must, at least, be necessary in such a pleading to allege the facts showing the amount and value of the estate purchased, and the amount of the purchase money paid, and that such purchase money was the full and fair market value of the property at the time of the purchase. The crosscomplaint is defective in that respect. We think it further necessary to the validity of such conveyance that it was made known to, and that the ancestor acquiesced in such sale and conveyance.

Judgment reversed, at costs of appellee, with instructions to sustain the demurrer to the cross-complaint, and for further proceedings in accordance with this opinion.

ELLIOTT, J. I concur in the conclusion that the cross-complaint is bad, but I do not fully assent to some of the propositions stated by the court, nor to all of the reasoning of the opinion. In my judgment, an heir apparent may convey an estate in expectancy, but, in order to enforce the conveyance, the purchaser must show good faith, and that he paid the fair value of the property conveyed. It is not enough to show that he paid the value of the estate considered as an estate in expectancy, but he must show that he paid the value of the property without reference to the uncertainty of the estate ever vesting. In other words, he must show that he paid the full value of the property, estimated as if the estate were absolute and fully vested, and without regard to any hazard resulting from the uncertain nature of the expectant estate. It is the value of the property, and not the value of the expectant estate, which the purchaser must pay. I think, too, that this rule applies where there is a warranty deed, or where the estate conveyed is specifically described, but that it does not apply where there is nothing more than a mere quitclaim deed.

It seems to me that the requirement of the law that the full value of the property shall be paid is a check so full and strong as to prevent fraud, and that an heir who secures the full worth of the property, valued as an absolute and vested estate, cannot avoid his conveyance, made when he was an heir presumptive.*

• See McCall v. Hampton, 98 Ky. 166, 32 S. W. 406, 33 L. R. A. 266, 56 Am. St. Rep. 335 (1895) (assignment held void at law and in equity). But see Steele v. Frierson, 85 Tenn. 430, 434, 435, 3 S. W. 649, 651 (1887), where Lurton, J., for the court, said: "Even at law the sale of an interest in the lands of an ancestor living has been enforced, but generally by aid of the operation of the doctrine of estoppel springing from the covenants in the deed. The argument that the assignment now under discussion [made in part payment of an antecedent debt] contains no covenants might be effective in a court of law; but, regardless of the doctrine of estoppel, such an assignment or sale is operative in equity as an equitable assignment of a future interest, and upon the expectancy being converted into a vested interest will be enforced by courts of equity." See, also, Clendening v. Wyatt, 54 Kan. 523, 38 Pac. 792, 33 L. R. A. 278 (1895); Crum v. Sawyer, 132 Ill. 443, 24 N. E. 956 (1890); Fritz's Appeal, 160 Pa. 156, 28 Atl. 642 (1894); McDonald v. McDonald, 58 N. C. 211, 75 Am. Dec. 434 (1859).

A conveyance to a stranger, made by the prospective heir while the ancestor is alive, is held by some courts to be a fraud on the ancestor, if the latter is ignorant of the conveyance.

"The ancestor, having no knowledge of the existence of the contract, is induced to submit his estate to the disposition of the law, which had designated the defendant as an heir. The defendant's agreement with the plaintiff is to substitute him as a coheir with himself to his uncle's estate. The uncle is thus made to leave a portion of his estate to Boynton, a stranger, without his knowledge, and consequently without any such intention. This Lord Hardwicke calls a deceit on the ancestor. And what is the consequence of deceits of this kind upon the public? Heirs, who ought to be under the reasonable advice and direction of their ancestor, who has no other influence over them than what arises from a fear of his displeasure, from which fear the heirs may be induced to live industriously, virtuously, and prudently, are, with the aid of money speculators, let loose from this salutary control, and may indulge in prodigality, idleness, and vice; and taking care,

by hypocritically preserving appearances, not to alarm their ancestor, may go on trafficking with his expected bounty, making it a fund to supply the waste of dissipation and extravagance. Certainly the policy of the law will not sanction a transaction of this kind, from a regard to the moral habits of the citizens. But when it is considered that a contract of this kind is a mere wager, in a case where there are no principles by which the value of the chances may be estimated, so as to ascertain whether it be unconscionable or reasonable, and therefore, if valid in any case, it may be valid in all cases, public policy has additional inducements to discountenance it, as dangerous to faith and fair dealing." Parsons, C. J., in Boynton v. Hubbard, 7 Mass. 112, 121, 122 (1810).

See, also, Gilpin v. Williams, 25 Ohio St. 283 (1874). The assent of the ancestor (Fitch v. Fitch, 8 Pick. [Mass.] 480 [1829]; Jenkins v. Stetson, 9 Allen [Mass.] 128 [1864]; Curtis v. Curtis, 40 Me. 24, 63 Am. Dec. 651 [1855]), or notice to him without objection on his part (Fuller v. Parmenter, 72 Vt. 362, 47 Atl. 1079 [1900]), dispenses with this objection; and in Hale v. Hollon, 90 Tex. 427, 39 S. W. 287, 36 L. R. A. 75, 59 Am. St. Rep. 819 (1897), the knowledge and assent of the ancestor, who was insane, was held to be unnecessary. On the validity of a sale of an expectancy by a prospective heir, see 33 L. R. A. 266, note; 56 Am. St. Rep. 339, note.

PART III

THE PROBATE OF WILLS AND THE ADMINISTRATION OF ESTATES

CHAPTER 1

THE GRANT AND REVOCATION OF PROBATE AND OF ADMINISTRATION

SECTION 1.—THE JURISDICTION TO ISSUE LETTERS

In re ZEPH'S ESTATE.

(Supreme Court, General Term, Third Department, 1888. 50 Hun, 523, 3 N. Y. Supp. 460.)

INGALLS, J. In November, 1887, Edward Zeph was an inhabitant of Schenectady county, in this state. He was indicted, tried, and convicted of the crime of murder in the second degree, and sentenced to the state-prison for life, and is now in prison under such sentence. Fidel Zeph, the only brother of such convicted person, applied to such surrogate for letters of administration upon the estate of such prisoner, which were denied by the surrogate, upon the ground that he possessed no jurisdiction to grant such letters, as the said Edward Zeph was still living. We are convinced that the decision of the surrogate was correct.

The contention of the counsel for the appellant is that by force of such conviction and judgment thereon the said Edward Zeph became and is civilly dead, and that his estate became the subject of administration, the same as though he were actually dead. We are satisfied that the provisions of the Code of Civil Procedure, from which surrogates derive their authority to grant letters of administration, have no application to a case of civil death, but apply only to cases of actual death. It will be perceived by referring to section 2660 of the Code of Civil Procedure, and the following sections upon that subject, that whenever mention is made of the estate upon which ad

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