78 N.J.L. 186 | N.J. | 1909
The opinion of the court was delivered by
The plaintiffs are children of Oscar Y. Holcombe, who was a son of Lucilla A. Holcombe, deceased, and as such represented their father as heirs-at-law of said Lucilla. The defendant is executor of Mary E. Holcombe, who was a sister of Oscar Y. Holcombe and who survived her mother, Lucilla. Oscar, however, predeceased his mother.
The declaration sets forth that after the death of Lucilla A. Holcombe, who died seized of an estate of several thousand dollars, a document purporting to be her last will and testament gave by its terms to Mary E. Holcombe all her silverware, horses, cattle, phaiton, carriage and harness, and all
It goes on to say that the plaintiffs, relying on said promise and in consideration thereof, refrained from contesting the probate of said will and did permit tbe same to go to probate and abandoned their claims as heirs-at-law and next of kin, and that the will was afterwards probated and letters testamentary issued thereon, and that Mary E. Holcombe received and enjoyed the property loft to her thereby; that afterwards Mary E. Holcombe died at Somerville, leaving personal properly of the value of $5,000 and upwards above her debts, and that she failed to carry out her promise to devise and bequeath all her property to the plaintiffs, but on the contrary
So far as concerns the contract itself we think it is definite and sufficient, and that there was a breach; that an agreement to leave property by will, if made on sufficient consideration, is valid and will be enforced is well settled. Johnson v. Hubbell, 2 Stock. 332; VanDuyne v. Vreeland, 1 Beas. 142; Winfield v. Bowen, 20 Dick. Ch. Rep. 636. Recovery may be had by a suit for damages in a court of law. Stone v. Todd, 20 Vroom 274.
The contract is set out with sufficient definiteness in the declaration, which avers in substance that Mary E. Holcombe proposed to the plaintiffs that if they would refrain from a contest of the will in her favor, she in her turn would leave them her property, and that the plaintiffs agreed to this and performed their part of the agreement.
In Grandin v. Grandin, 20 Vroom 508, plaintiff had filed a caveat and was induced to withdraw it and to assign an interest in the estate in consideration of defendant’s promise. It was held that while the withdrawal of the caveat might not have been a sufficient consideration because its filing had commenced a litigation which must then go on in the Orphans Court, the further action by way of assignment disabled plaintiff from claiming any share in the estate except under the will, even barring an action of ejectment.
Rue v. Meirs, 16 Stew. Eq. 377, is more like the present case. No caveat had been filed, and the father of infant heirs “expressed his dissatisfaction with the provisions of the will and protested against its admission to probate”' (p. 378). The defendants made a promise in writing to pay $4,000 if complainant would abstain from contesting the probate and present the will to be proved. This he did. It was claimed
We think the declaration somewhat loosely but still sufficiently sets up that plaintiffs believed they had a valid ground of contest and threatened to make such contest and that in view of such threat Mary made the agreement with them which is now sued on. If such a consideration would support a promise to pay $4,000 at once in cash, as in Rue v. Meirs, supra, it may well be held adequate to support a promise to leave one’s property at death, retaining the benefit of it during life.
Our only difficulty in the case has been the question whether the intention “evidenced” by the plaintiffs of contesting the probate of the will was brought home sufficiently to Mary E. Holcombe to indicate that this was a moving consideration for her promise, but we conclude that this is sufficiently apparent on the face of the declaration, for it says “that thereupon a family settlement was agreed upon,” and this can mean nothing else than that the promise of Mary was part of the family settlement, and that the family settlement was in view of the indication by the plaintiffs of their intention to contest the will.
•Judgment will be entered for the plaintiffs on the demurrer.