Bellows v. Sowles, 55 Vt. 391

Bellows v. Sowles

55 Vt. 391 | Vt. | 1883

The opinion of the court was delivered by

■ Ross, J.

The exceptions taken on the trial, as well in regard to the defendant’s motion for a verdict, as in regard to the refusal of the court to charge as requested, relate mainly to the subject of the consideration for the defendant’s promise. This subject, and the particular phase of it involved in this case, was under consideration in Ormsbee v. Howe, 54 Vt. 182. It is there said : “ The compromise of a doubtful right is a sufficient consideration for a promise, and it does not matter on whose side the right ultimately turns out to be.” The soundness of this proposition is not fairly open for debate. It is elementary. The plaintiff was heir at law of Hiram Bellows. He was interested in whatever disposition he made of his property. He had the right to oppose the establishment of any will made by him when offered for probate. Not being a legatee or devisee in the will of Hiram Bellows, it was for the plaintiff’s interest to prevent the establishment of the will. The defendant was named executor in the will, and *398his wife and daughter were special legatees, and his wife the residuary legatee. He was, therefore, interested in the establishment of the will. Hence, if the plaintiff had any reasonable, bona-fide ground to oppose the establishment of the will, and forbore to exercise such right at the request, and because of the promise of the defendant, such promise would be founded upon a good consideration. There was evidence tending to show such forbearance and promise. By such forbearance the defendant gained what was of value to him, the establishment of the will without delay or opposition, and at less expense, and the plaintiff lost what might be of value to him, the opportunity to oppose its establishment, either of which was a good consideration for the promise. It was not necessary for the plaintiff to allege and prove that his ground of opposition to the will would have been found sufficient to have defeated its establishment. It was enough if he had an honest, reasonable ground of opposition and intended to use it, and forbore to do so on account of the defendant’s promise. Hence the defendant was not entitled to have his motion to have a verdict ordered by the court in his favor complied with. The plaintiff was neither bound to allege nor prove that undue influence had been used to procure the making of the will. But he was, when that was brought in question, bound to show that he honestly thought he had good and reasonable ground for making the claim that the will so far as it related to him was the production of undue influence, and for that reason he honestly intended to oppose its establishment. Whether the plaintiff acting as a reasonable, prudent and conscientious man, had good ground to believe undue influence had been used, and for that cause he had good reason to doubt the validity of the will, and therefore honestly proposed to oppose its establishment, or whether he had no good ground to believe undue influence had been used, and so had no good reason to doubt the validity of the will, and dishonestly put the same forth as a ground of opposition to the establishment of the will, makes a very material difference in regard to the consideration his action would afford to support the defendant’s promise to pay him five thousand dollars for forbearing to oppose the establishment of the will. On the first sup*399position his forbearance would be the yielding of a right which he honestly upon reasonable grounds supposed existed and intended to assert, and would furnish ample consideration for the defendant’s promise. On the latter hypothesis, his opposition to the will was dishonest, unfounded, factitious, and set up to extort money from the defendant. In short, his opposition to the will, if successful, would be a blackmailing operation. There is no essential conflict in the authorities produced by the parties on this subject. Cases can be found where no claim is made but that the compromised right was an honest one, honestly entertained and asserted, and in which no reference is made to the bona-fide character of the transaction. The doubtful right compromised, to be a good consideration for a promise, must upon reasonable grounds be honestly entertained by the person proposing to assert it. It is neither necessary to allege nor prove that the right actually existed. The case of Ormsbee v. Howe, supra, is in point. If money has been actually paid in compromise of a false and fraudulent claim dishonestly made and asserted, it may be recovered back as held in Hoyt v. Dewey, 50 Vt. 465. Upon these views of the law the defendant’s first and third requests were properly refused; but his fourth request should have been substantially complied with. It is, however, claimed that if the plaintiff yielded no right, the defendant gained by the compromise in that he avoided delay and expense in the establishment of the will, and for this reason he should be held to perform his promise. But if the plaintiff’s opposition to the establishment of the will was fraudulent and put forth to extort money, he would not only yield nothing, but the defendant would gain nothing, by the compromise ; that is, there would be no compromise, because nothing on one side of it. A compromise is the yielding of something by each of two parties, and can only exist when something is yielded by each party to it. Besides, fraud in the foundation of a claim permeates the whole superstructure, taints and vitiates the entire transaction. Ormsbee v. Howe, supra. It is probable the plaintiff in such a case would be liable for whatever expense he should cause the defendant by *the dishonest assertion of a false claim to extort* money. Hoyt v. Dewey, supra. The defendant’s motion *400in arrest of judgment, on these views, was properly overruled.

The other questions arising on the motion for a new trial in regard to the disqualification of the juror Hibbard, will never arise again probably in the new trial of this case, and need not be considered. It presents some nice questions in regard to presumptions which are not altogether free from difficulty. On the exceptions the judgment of the County Court is reversed, and- cause remanded for. a new trial.

The petition for a new trial is not sustained. The alleged matter is so far collateral to the main issue that the court cannot say it would, if established, avail to change the result if a new trial should be granted thereon. The same is dismissed with costs to the petitionee.