57 Vt. 164 | Vt. | 1884
Counsel for the defendant have demurred to the declaration in this case upon two grounds; first, that the consideration alleged is insufficient; secondly, that the promise not being in writing comes within, and is therefore not enforceable under, the Statute of Frauds.
It has been so often held that forbearance of a legal right affords a sufficient consideration upon which to found a valid contract, and that the consideration required by the Statute of Frauds does not differ from that required by the common law, it does not appear to us to be necessary to review the authorities, or discuss the principle. As to the second point urged in behalf of the defendant, this case presents greater difficulties. Although the Statute of Frauds was enacted two centuries ago, and even then was little more than a reenactment of the pre-existing common law, and though cases have continually arisen under it, both in England and America, yet so confusing and at times inconsistent are the decisions, that its consideration is always attended with difficulty and embarrassment.
The best understanding of the statute is derived from the language itself, viewed in the light of the authorities which seem to us to interpret its meaning as best to attain its object. That clause of the statute under which this case falls, reads: “No action at law or in equity shall be brought * * * upon a special promise of an executor or administrator to answer damages out of his own estate.”
This special promise referred to is, in short, any actual promise made by an executor or administrator, in distinction from promises implied by law, which are held not within the statute.
The promise must be “to answer damages out of his own estate.” This phraseology clearly implies an obligation, duty, or liability on the part of the testator’s estate, for which the executor promises to, pay damages out of his own estate. The statute, then, was enacted to prevent executors
We believe this view to be well supported by the authorities. Browne, in his work on the Statute of Frauds, p. 150, says: “In the fourth section of the Statute of Frauds, special promises of executors and administrators to answer damages out of their own estates appear to be spoken of as one class of that large body of contracts known as guaranties.” And so on page 184, he interprets “ to answer damages ” as equivalent to to pay debts of the decedent. This seems to be the construction given to the statute by Chief Justice Redeield, in his work on Wills. Vol. II. p. 290, et seq.
The Revised Statutes of New York, Vol. II. p. 113, have improved upon the phraseology of the old statute as we have adopted it, by adding, or to pay the debts of the testator or intestate out of his own estate.
If we are correct in this view of the relation between these two clauses, the solution of the question presented by this case is comparatively easy.
It has been held in this State, that when the contract is founded upon a new and distinct consideration moving between the parties, the undertaking is original and independent, and not within the statute. Templeton v. Bascom,
Pierpoint, J., in delivering the opinion of the court in Cross v. Richardson, supra, says: “The consideration must be not only sufficient to support the promise, but of such a nature as to take the promise out of the statute; and that requisite, we think, is to be found in the fact’ that it operates to the advantage of the promisor, and places him under a pecuniary obligation to the promisee, entirely independent of the original debt.”
Apply this rule to this case. Here the main purpose of this promise was, not to answer damages (for the testator) out of his own estate, but was entirely to subserve some purpose of the defendant. The consideration did not affect the estate, but was a matter purely personal to the defendant. Here there was no liability or obligation on the part of the estate to be answered for in damages. It could make no difference to the execittor of that estate whether it was to be divided according to the will, or by the law of descent. If the subject matter of this contract had been something entirely foreign to this estate, no one would maintain that the defendant was not bound by it, because he happened to be named executor in this will. Here the subject matter of the contract was connected with the estate, but in such a way that it was practically immaterial to the estate which way the question was decided. There exists, therefore, in
The judgment of the County Court overruling the demurrer and adjudging the declaration sufficient is affirmed, and case remanded with leave to the defendant to replead on the usual terms.
