Thomas W. Robbins et al. v. Dugald McMillan, Administrator, &c., 26 Miss. 434

Mr. Justice Handy delivered the opinion of the court. This was a petition filed in the probate court by the appellants against the appellee as administrator of Thaddeus J. Maxwell, deceased, claiming distribution of his estate. The appellants claim as the next of kin of the intestate, alleging that they are the children of William C. Maxwell, deceased, an uncle of the intestate, and that there are no persons having priority of right of distribution over them, under the provisions of our statute, and that the intestate was the son of James J. Maxwell, the brother of the father of appellants.

The administrator filed a plea of estoppel to the petition, averring that the father of appellants, in his lifetime, executed a deed, conveying his interest in the estate of James J. Maxwell, the alleged father of the intestate, to his brother Thomas S. Maxwell, which deed contained this recital, “ that, whereas, the said William C. Maxwell is by law entitled to a share of the estate of James J. Maxwell, deceased, as next of kin to said James J. Maxwell, who died without lawful issue,” &c., which recital is alleged to estop the appellants from claiming that the intestate was the son of James J.

Maxwell, or that their father, who was the brother of James J. Maxwell, was the uncle of the intestate, and so, that they are not entitled to claim as next of kin of the intestate. To this plea, the appellants filed a demurrer, which was overruled, and hence the case is brought here. We have heretofore held in the case of Handy v. Gholson at this term, that it is improper practice to file a demurrer to a plea in the probate court, and that the proper course is to set down the plea for argument, according to the practice in chancery.

But, considering the demurrer as raising the same question as if the plea had been set down for argument, the question is, whether the facts stated in the plea are a sufficient answer to the petition. The deed was executed by the father of the appellants and under whom they claimed. The petition is based on the fact that the intestate was the son of James J. Maxwell, a brother of appellants’ father, who is, therefore, alleged to be the uncle of the intestate. The deed recites a fact wholly inconsistent with this claim, to wit, that James J.

Maxwell “ died without lawful issue.” The rule is well settled, that all parties to a deed are bound by the recitals in it legitimately appertaining to the subject-matter of it. It applies not only to the parties immediately, but to those claiming under them, to privies in blood, privies in estate, and privies in law. Trevinian v. Lawrence, Salk. 276; 1 Greenl. Ev. § 23-26. Here the matter recited was a material thing connected with the act done. William C. Maxwell was conveying his alleged interest as next of kin in his brother’s estate, who is averred to have died without lawful issue.

If that fact were not true, he would not have been entitled as next of kin to his brother’s estate, for it would have descended to his lawful issue. The averment, therefore, necessarily precludes the fact, that the intestate was the son or lawful issue of James J. Maxwell, and being an admission of that fact by the ancestor of the appellants, and’ under whom they claim, they are estopped as privies in blood to deny it. The judgment of the probate court is, therefore, affirmed, and the ease remanded, to be proceeded with upon the matter set up in the appellee’s plea.

If the deed was duly executed and delivered by the appellant’s ancestor, and is in all respects valid, as it purports on its face, it precludes the appellants’ claim, and unless it be impeached and be proved to be invalid, the petition will of course be dismissed in the probate court.