129 N.Y.S. 873 | N.Y. App. Div. | 1911
Eliza Bagley and James, her husband, in 1902, executed mutual wills, each making the other sole devisee and legatee. James died in March, 1905, and Eliza became the owner of a. farm and some personal property. The plaintiff was her cousin, and after the death of her husband, Eliza proposed . to make her home with the plaintiff.
The plaintiff claims that in consideration of providing ahorne and caring for her Eliza agreed to make a will giving her all of her property at her death. Eliza spent a portion of her time at plaintiff’s house and certain things were done for her comfort and welfare for about a year when she died. .
Immediately on her death the defendant, who was her only
The version of the defendant as to how this agreement came to be executed differs somewhat from that of the plaintiff, and
Eliza had not made any other will than the one which was inoperative because of her husband’s death prior to her own decease, and her property passed to the defendant as sole heir and next of kin, but the defendant refused to. surrender any part of the property to the plaintiff. This action was brought to compel the defendant to turn over one-half the personal property to the plaintiff and to execute a deed of an undivided half of the real property and for a partition, and resulted in a dismissal of the complaint on the ground that the agreement above set forth was void because it was without consideration. ,
We are of opinion the contract was a -valid one, and that upon the evidence adduced the learned trial court erroneously dismissed the plaintiff’s complaint.
It is difficult to see why the agreement does not come within the principle laid down in Briggs v. Tillotson (8 Johns. 304); Coleman v. Eyre (45 N. Y. 38), and Smith v. Smith (36 Ga. 184), and why it is not a valid one because the promise of the one made a good consideration for the promise of the other.
But it is unnecessary to place our decision upon this narrow ground because the extrinsic facts show that the agreement was one of compromise of conflicting claims.
The plaintiff gave proof tending to show that Eliza Bagley had agreed to will her all of her property in consideration of giving her such board and care as she should desire-during her lifetime, and that plaintiff had performed her part' of the bargain. Whether such contract was sufficiently specific to warrant a decree of specific performance, or whether the plaintiff had simply a claim for the value of services performed is unimportant.
.It does not appear that the plaintiff explained to the defendant the contract which she claimed to have had with Eliza, but it is apparent that the defendant believed that plaintiff had some
Such claim being a bona fide one, so far as consideration for the compromise is concerned, it does not matter whether the claim was much or little, or for that matter good or bad. It is not necessary, in order to uphold a compromise agreement based upon a surrender or composition or compromise of a claim, that the - claim should he a valid one, ,ór one that. can be enforced at law,' provided it he made in good faith. A promise made upon a settlement of disputes and to prevent litigation is made upon a good consideration, and the settlement of a doubtful claim will uphold a promise to pay a stiprdated sum or do any other lawful act. (White v. Hoyt, 73 N. Y. 505, 514.) Courts from the earliest times have favored compromises of bona fide disputes and have held agreements therefor to he founded upon good consideration irrespective of the validity of the claim, which Was compromised. (Goilmere v. Battison, 1 Vern. 48; Cann v. Cann, 1 Williams, 723; Penn v. Lord Baltimore, 1 Ves. Sr. 444; Russell v. Cook, 3 Hill, 504; Hogue v. Hogue, 1 Watts, 163, 216; Leach v. Fobes, 11 Gray, 568; Sears v. Grand Lodge A. O. U. W., 163 N. Y. 374.) Judges- have stated the rule in various language, all, however, to the same tenor. In Russell v. Cook (supra) Cowen, J., says: “ In such cases it inatters not on which side the right ultimately turns out to be. The court will not look behind the compromise J’ In speaking of a contract of compromise under a will contest, Bigelow, J., in Leach v. Fobes (supra) says: “As they (such contracts) contribute to the peace' and harmony .of families and to the prevention of litigation, they will he supported in equity without an inquiry into the adequacy of the consideration on which
There is no proof that 'the plaintiff: was guilty of any misrepresentation or deceived the defendant in any way. On the contrary it appears that although the defendant is now loath to perform the agreement, she was the one who was most anxious to enter into it. It is true that neither knew what her absolute rights were. The defendant knew, however, that if there was a will giving the property to the plaintiff she could get nothing, and the plaintiff realized that if there was no will the defendant would take all of the property, subject to whatever rights she might have under the agreement which she claimed to have made with the deceased. To avoid litigation and controversy, the parties, without fully realizing perhaps how commendable their action was, entered into an agreement for equal division no matter what the situation might be. ■ On the death of Eliza the title to the property was in the defendant as heir and next of ■ kin if there was no will, and if there was a will in plaintiff’s favor it was in her and the parties were not dealing with a mere expectancy or concerning property in which neither had any interest.
The contract was not a wager as to whether or not the deceased had left a will in the plaintiff’s favor, as the defendant insists. Nor will the plaintiff retain her claim if the defendant shall transfer to her one-half the estate of the deceased, as the respondent fears. ' The effect of the agreement, if valid, is to wipe out the plaintiff’s claim, whatever it may be. The complaint is framed in a two-fold aspect, and asks if there should be no division of the property that the plaintiff’s claim be enforced.
@uch services as the plaintiff rendered and such board as she may have furnished did not necessarily belong to the plaintiff’s husband, as the. defendant urges. The husband was present
If we are right in our conclusion that the agreement was one of compromise and that it was founded upon a sufficient consideration, it follows that the judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.