R. W. WALKER, J,
1. Admitting all the facts which the evidence offered by the plaintiffs tended to establish, there was no suit pending when the promise sued on was made. True, the defendants had propounded the will for probate, notices had been served upon the plaintiffs, and they had employed counsel to contest the will; but they had not, in the only mode authorized by law, made themselves parties to the proceeding, and could not have been held responsible for the costs. Unless they came forward, and became parties in the manner provided bylaw, the proceeding was simply in rent, and not a suit inter partes. — Code, § 1634; Blakey’s Heirs v. Blakey’s Distributees, 33 Ala. 611" court="Ala." date_filed="1859-01-15" href="https://app.midpage.ai/document/blakeys-heirs-v-blakeys-6506429?utm_source=webapp" opinion_id="6506429">33 Ala. 611.
*1742. The mere existence of a controversy, which has not assumed the form of a pending suit, is not, without more, a sufficient consideration to support a verbal promise made in settlement of it. To sustain such a promise, there must be some reasonable ground for the controversy. Allen v. Prater, 30 Ala. 459 ; Prater v. Miller, 25 Ala. 320" court="Ala." date_filed="1854-06-15" href="https://app.midpage.ai/document/prater-v-miller-6505378?utm_source=webapp" opinion_id="6505378">25 Ala. 320. The promise of the defendants was, therefore, void, unless there wra3 some reasonable ground for the existence of the controversy in the settlement of which it was made.' Hence, any evidence, which tended to show'that there was in fact no reasonable ground of controversy, was competent testimony for the defendants.,
3. Por the purpose of rebutting the evidence of a consideration for the promise, introduced by the plaintiffs, the defendants had the -right to show, if they could, that the provisions of the will were just and reasonable, consonant with the state of the testator’s family relations, and such as afforded no well-founded cause of complaint. This, if proved, would be a circumstance conducing, in some degree, to establish the capacity of the testator, and the absence of fraud or undue influence in the execution of the will. Such testimony was, therefore, pertinent to the inquiry, whether the plaintiffs had any reasonable ground for their controversy with the defendants; or, in other words, whether there was any contest or dispute, of which the issue might fairly be considered by both parties as doubtful. — Parsons’ Contr. 364. Por these reasons, it was proper that the will itself should be before the jury, together with proof of the value of the different legacies and devises contained in it, and of the’ amount and value o'f the advancements made by the testator in his life-time to any of his children. There was no error in allowing the defendants, for the purpose here mentioned, to prove the value of the slaves given by the testator in his life-time to the plaintiff Elizabeth, and the amounts received by his grand-children under his will.
4. ’We must construe the charges of the court in connection with the evidence, and apply then to the contract which, as the record informs us, the proof tended to establish. This contract was, that “ defendants would pay to *175plaintiffs a sum of money sufficient to make them equal to the share that defendants each received under the will, less §100.” Now, although the value of the negroes given by the testator in his life-time to the plaintiff Elizabeth, as well as the amounts received by his grand-children under the will, were, as we have seen, proper to be considered by the jury, in determining whether there ■was a sufficient consideration for the promise made by the defendants; yet, we think that the court erred in deciding that they should be estimated against the plaintiff's, in ascertaining the amount which would be sufficient to make them equal, less §100, to the shares of the defendants. If the facts were such as the bill of exceptions shows the proof tended to establish, it is plain that the negroes Mary and Daniel were not, at the time the will was executed, the property, or in the possession of-the testator; that they could not, therefore, be disposed of by his will; and that in fact they did not, either when the will was executed, or when the promise of the defendants was made, belong to the plaintiffs, or to either of them. Upon the hypothesis that the contract and the facts were such as the evidence conduced to establish, we do not perceive upon what principle the value of these negroes can be taken into the estimate, in determining the amount which, by the contract, the defendants agreed to pay the plantiffs. To justify this, we must incorporate into the contract an additional stipulation, reasonable enough, perhaps, in itself, but of which no mention whatever is made in the evidence ; and we should thus assume the function of modifying, instead of merely construing and enforcing, agreements entered into by persons competent to make their own bargains. It maybe that, under the circumstances, slight evidence would be sufficient to show that it was the intention of the parties that the value of these negroes should be considered, in determining the amount which the defendants were to pay the plaintiffs. Our decision is made upon the record as it is presented to us.
The case is still plainer with regard to the amounts received by the children of Mrs. Allen, by her first husband, *176Lively, as legatees under tbe will. The plaintiffs had no right or interest in these legacies, and unless there was some stipulation in the agreement which would authorize it, or some evidence from which it could reasonably be inferred that such was the intention of the parties, the value of these legacies ought not to enter into the computation necessary to be made in ascertaining tbe amount to which the plaintiffs are entitled. The promise was to make the plaintiffs — not the plaintiffs and the children of one of them by a former marriage, together — equal to the defendants.
Eor the errors indicated, the judgment is reversed, and the canse remanded.
A. J. Walker, C. J., not sitting.