EXPECTANCY. Contingency as to pos session. That which is expected or hoped for. Frequently used to imply an estate in expectancy.
Estates are said to be in possession when the per son having the estate is in actual enjoyment of that in which layi _estate subsists,,or ewpectiincy,, when the enjoyment is postponed, although the es tate or interest has a present iegal existence.
A bargain in relation to an expectancy is, in general, considered invalid, unless the proof of good faith is strong; 2 Ves. 157; 1 Bro. C. C. 10 ; Jeremy, Eq. Jur. 397; Mc Call's Adni'r v. Hampton, 98 Ky. 166, 32 S. W. 406, 33 L. R. A. 266, 56 Am. St. Rep. 335.
But it is well settled in equity that a deed which purports to convey property, which is in expectancy or to be subsequently ac cluired, or which is not the subject of grant at law, though inoperative as a grant or con veyance, will be upheld as an executory agreement, and enforced according to its in tent, if supported by a valid consideration, whenever the grantor is in a condition to give it effect ; per Strong, J., in Bayler v. Com., 40 Pa. 37, 43, 80 Am. Dec. 551; Varick v. Edwards, 11 Paige (N. Y.) 290; McWilliams v. Nisly, 2 S. & R. (Pa.) 507, 7 Am. Dec. 654; Bailey v. Hoppin, 12 R. I. 560, 568; 10 H. L. Cas. 1$9, 211; East Lewis burg Lumber & Mfg. Co. v. Marsh, 91 Pa. 96; Ruple v. Bindley, id. 296; Fritz's Estate, 160 Pa. 156, 28 Atl. 642 ; Hudson v. Hudson, 222 Ill. 527, 78 N. E. 917 ; Hale v. Hollon, 90 Tex. 427, 39 S. W. 287, 36 L. R. A. 75, 59 Am. St. Rep. 819; Betts v. Harding, 133 Ia. 7, 109 N. W. 1074 ; Johnson v. Johnson, 170 Mo. 34, 70 S. W. 241, 59 L, R. A. 748. So it is said that an estate in expectancy, though contin gent, is a fair subject of contract, and an agreement by an expectant heir in respect thereto, fairly made upon valuable consider ations, will be enforced in equity ; Parsons v. Ely; 45 Ill. 232; Varick v. Edwards, 1 Hoffm. Ch. (N. Y.) 382; McDonald v. Mc Donald, 58 N. C. 211, 75 Am. Dec. 434; a mere agreement to appropriate the money when received from a legacy will not operate as an assignment 'of it; Appeal of Wylie, 92 Pa. 196. An executory agreement between
the husbands of two expectant legatees to divide equally what should be left to either of them has been enforced ; 2 P. Wms. 182 ; 2 Sim. 183. Such assignments are prohibited by statute in California ; Cal. Civ. Code 700, 1045 ; In re Wickersham's Estate, 138 Cal. 355, 70 Pac. 1076, 71 Pac. 437; and in Louisi ana ; Succession of Jacobs, 104 La. 447, 29 South. 241; and in some states have been held unenforceable ; thus an attempted con veyance by heirs-apparent of their interest in the property of an ancestor, even with the latter's consent, has been held void ; Wheeler's Ex'rs v. Wheeler, 2 Mete. (Ky.) 474, 74 Am. Dec. 421; McCall's Adm'r v. Hampton, 98 Ky. 166, 32 S. W. 406, 33 L. R. A. 266, 56 Am. St. Rep. 335 ; on the ground that it is essential to the legal validity of the thing sold that it have an actual or poten tial existence, and that a mere possibility or contingency, not founded on a right or cou pled with an interest, cannot be the subject of sale or assignment ; Spears v. Spaw, 1,18 S. W. 275, 25 L. R. A. (N. S.) 436; and on the ground that, as no one 'can be the heir of a living person, a transaction based on the idea of a future right to the succes sion of a living person is devoid of consid eration and can have no effect, notwithstand ing the agreement is valid under the law of a foreign state where it was made; Cox v. Von Ahlefeldt, 105 La. 543, 30 South. 175.
An assignment without consideration by a married woman of an expectant interest in her father-in-law's estate, which was con tingent upon her surviving her husband, in order to secure her husband's indebtedness, is not valid at law, although, when based upon a sufficient consideration, it might be enforced in equity when the interest became vested in the assignor ; In re Baeder's Es tate, 224 Pa. 452, 73 Atl. 915 ; and see, to the same effect, Bayler v. Coro., 40 Pa. 37, 80 Am. Dec. 551.