65 Vt. 431 | Vt. | 1893
The opinion of the court was delivered by
It is claimed that the declaration does not show a cause of action. It sets forth a bond with its condition and a breach thereof. The bond is under seal and im
It was not necessary to allege that a will was made by Abigail L. Carden, or that the plaintiff was a beneficiary under it, or that the defendant had a right to waive it. The defendant obligated himself to abide by, accept of and not waive the provisions of the last will of Abigail L. Carden, made on the 30th day of April, 1891. The declaration alleges that Abigail L. Carden deceased in the summer of 1891 ; that her said will was duly probated on the 25th day of July, 1891, and that on the nth day of February, 1892, the defendant waived its provisions. From these allegations the condition and breach of the bond sufficiently appear without setting forth the defendant’s right to waive the provisions of the will or the plaintiff’s rights under it. The defendant’s undertaking was to accept of, and not waive its provisions. The question of whether he had a right to waive it is immaterial. He has done so and thereby subjected him-' self to an action on the bond for a breach of its express condition. The extent of the plaintiff’s’ interest in the estate under the will or otherwise is material only upon the measure of damages, and this question is not now before us. The defendant had a right to give and the plaintiff to take the bond; the performance of its condition is in no way dependent upon the plaintiff’s interest in the estate, and for a breach thereof the plaintiff is entitled to recover at least nominal damages.
The defendant insists that the alleged undertaking of the defendant is contrary to public policy, and that for this reason the bond should be declared void. Courts will not declare contracts void on grounds of public policy except in cases free from doubt, and prejudice to the public interest must clearly appear before a courtis justified in pronouncing
This case is distinguishable from those where bonds are given or other agreements made, as a reward for using influence and power over another person to induce him to make a will in favor of the obligor, for all such contracts tend to deceive and injure third persons and encourage artifice and improper attempts to control the exercise of free judgment. In this case there was no intent to defraud, deceive or influence any one. The defendant did not undertake to do an act prohibited by the common law or by stat
Judgment affirmed and cause remanded.