¶1The opinion of the court was delivered by
¶2David Brands died intestate in January, 1883, seized- in fee-of a farm, containing about one hundred and seventeen acres of land, and some personal estate. His seven children survived him.
¶3Isaac, one of his sons, administered upon the personal estate . and sold it.
¶4In November, 1883, it was agreed that the real estate should be sold at public sale, and that all the children would join in making a conveyance of it to the purchaser. The farm, at that sale, was struck off to Abram Brands for $38 per acre, and he signed the conditions of sale. On the day of the sale, and after the sale, Isaac, as he alleged, discovered in an old desk, which he had purchased at the sale of the intestate’s goods, three releases to the intestate, one executed by his son Jacob, one by his son Abram and one by James.
¶5Two of the releases purported 'to be in consideration of land conveyed to them by their father in his lifetime, and the third in consideration of the sum of $2,500.
¶6In the releasing part, each one
“Releases, discharges and forever quit claims all right, title, interest or claim whatsoever to him the said David Brands, and to his other children and heirs-at-law of all the estate, both real and personal, that may be left at the decease of said David, the releasor being fully satisfied and content on the reception of the above-mentioned deed for all the legacies that now or ever liereafter might descend to him from the estate of said David, and that all of the estate of said David, at the time of his decease, may be divided among his other children and heirs-at-law, or otherwise, without any claim or demand either by himself, his heirs, executors or administrators.”
¶7Upon bthe production of these releases, the other children claimed that Jacob, James and Abram were thereby excluded from any share in the intestate’s estate, and thereupon James and Jacob refused to execute the deed of conveyance for the *551farm sold to Abram. The other children executed a conveyance to Abram, but he refused to accept it because all had not joined in it.
¶8On the 24th of May, 1884, James filed a bill in chancery for the partition of said lands, to which all the heirs-at-law were parties. After the defendants to said bill had filed their answers an agreement in writing, dated September 6th, 1884, was entered into by all the children, except Mrs. DeWitt, by the terms of which the intestate’s estate was to be equally divided among all the children of decedent, notwithstanding said releases. In consideration thereof Abram signed an agreement to take the farm at $38 per acre, which it was then understood among them was a larger price than could otherwise have been obtained for it.
¶9Thereupon, in accordance with said agreement, the partition suit, by consent of all parties, was discontinued; costs were paid to Mrs. DeWitt; and James Brands, for himself and Jacob Brands, executed the conveyance for the farm and delivered it to Abram, who accepted it and gave his obligations for the purchase-money.
¶10In the court below the validity of the releases was upheld, and a decree made that Mrs. DeWitt, Isaac Brands, Catharine Green and Hannah Reed were each entitled to one-fourth of the estate, to the exclusion of the three who had released. Costs were allowed to the several parties out of the proceeds of sale of the land.
¶11James Brands and Abram Brands appealed from this decree because they were denied a share of'the estate, and Mrs. DeWitt appealed because costs were decreed out of the fund.
¶12I agree with the "Vice-Chancellor, that an heir-at-law may, for a sufficient consideration, release to his father the share which he might have at the parent’s decease in his estate, either real or personal, so that he will be thereby estopped from establishing any claim thereto as one of his heirs-at-law or next of kin.
¶13In Havens v. Thompson, 8 C. E. Gr. 321, Chancellor Zabriskie, in commenting on the case of Quarels v. Quarels, 4 Mass. 680, and Kenney v. Tucker, 8 Mass. 143, in which such *552releases were held to be binding, said : “ That whether an agreement by parol, or in writing without seal by a son to his father, on receiving advancement in money, that it shall be in full of the son’s share of the father’s real estate at his death, can have any effect, was questionable.”
¶14He hesitated to adopt a rule which would give effect to parol testimony in cases of such importance, and he reserved the question until the final hearing of the case.
¶15Chancellor Runyon decided the case on final hearing, and gave full effect to the agreement to release. Havens v. Thompson, 11 C. E. Gr. 383.
¶16Vice-Chancellor Van Fleet, i*n Green v. Hathaway, 9 Stew. Eq. 471, says: “The justice of this doctrinéis obvious; it is designed,, in the first place, to compel a child to abide by its promise, and thus prevent the expectation of the father from being disappointed, who, but for his trust in the promise, would have made a will; and, in the second place, to secure equality among those who have equality of right. But such agreements, when they concern lands, are like others, subject to the statute of frauds, and unless they are in writing cannot be enforced.” This we consider to be the correct rule, and the reason for it. The English cases support this view. Hancock v. Hancock, 2 Vern. 665; Lockyer v. Savage, 2 Strange 947; Medcalf v. Ives, 1 Atk. 63; Heron v. Heron, 2 Atk. 160.
¶17I think the preponderance of evidence is against the contention on behalf of Isaac, Catharine and Hannah, that the agreement to make an equal division was executed by them, on condition that it was not to be effective until it was signed by Mrs. DeWitt.
¶18It was very soon thereafter performed, on the part of Abram and James, who represented the share of Jacob.
¶19The deed was executed and delivered to Abram, and the partition suit of James was discontinued, with costs to Mrs. DeWitt.
¶20The evidence of Mr. Angle, the solicitor for Abram Brands, is, that he drew the agreement and was present at the execution of it; that it was expressly stated, and understood by all who signed it, that Mrs. DeWitt would not sign it, and that Abram said, in the presence of all of them at that time, that he *553would settle with Mrs. DeWitt himself. This is not denied by Abram, who was called as a witness after this testimony was given.
¶21The agreement should be enforced as against those who executed it, but it cannot affect the rights of Mrs. DeWitt.
¶22The result will be that' Mrs. DeWitt is entitled to one-fourth of the estate, and the other children to one-seventh each.
¶23The difference between the one-fourth and the one-seventh must be taken out of the one-seventh to which Abram is entitled, and paid to Mrs. DeWitt. This is in accordance with the obligation which Abram assumed at the settlement.
¶24In estimating the sevenths, the payments provided for in the agreement of September 6th, 1884, and also the costs in the court below, and the costs of the appellants, Abram, James and Jacob, in this court, must first be deducted from the fund.
¶25In estimating the one-fourth to which Mrs. DeWitt is entitled, only the costs in the court below, and the costs of said appellants in this court, must first be deducted from the fund. The appellants, Abram, James and Jacob, are entitled to costs in this court, to be paid out of the fund. The appeal of Mrs. DeWitt is dismissed, without costs. The decree should be reversed and the case remitted, that an account may be taken as hereinbefore directed.
¶26For affirmance — Garrison, Brown, Clement, Whitaker —4.
¶27For reversal — Depue, Dixon, Knapp, Magie, Scudder, Yan Syckel, Cole, McGregor, Paterson — 9.