Palmer v. North

35 Barb. 282 | N.Y. Sup. Ct. | 1861

By the Court, Bockes, J.

Edwin Stafford was made a beneficiary under his father’s will, to a large amount, compared with the amount of property left by the testator. His sisters, Sarah, Mary and Atlanta, were, by the will, each given five dollars. On the decease of the testator, these legatees prepared and threatened to oppose the probate of the will; whereupon Edwin promised and agreed with them, that in case they would sign an admission of service of the citation and not contest the proof of the will, he would pay them each the sum of $200. They signed the citation and fore-bore all opposition to the will. Edwin having died, this action is brought against his administrator by the plaintiff, as assignee of those claims.

The principal questions discussed on this appeal are, first, whether the agreement counted on is established by proof, and secondly, whether, if proved, it is a valid and binding agreement in law.

The referee has found and certifies the fact that Edwin promised his three sisters that if they would not oppose the probate of the will, and would give an admission of the service of the citation, he would pay them two hundred dollars each; that they each accepted the offer, and agreed in consideration thereof to sign an admission of service of the citation and not to contest the proof of the will—and that they observed and fulfilled the agreement on their part. This is a question of fact on which, the finding of the referee is conclusive, if there is any sufficient evidence in the case to give it support.

Without referring to all the evidence hearing on this point, it is enough to allude to the testimony of Mary Stafford, the widow of Stephen and executrix of the will. She says that on her objecting that the will was unfair to the girls, and that it ought to be broken up if it could be, he said he would give them $200 apiece, if they would go on and sign the citation and make no trouble about it; that he did not want the will broken up; that he wanted her to talk with them, and she did talk with them and informed them of his offer ; that they said they would take up with $200, to save trouble, though they thought it was not enough. Thereupon they signed the admission of service of the citation, and the will was proved without opposition. There was also evidence going to show that there was some understanding between the testator and Edwin, at or about the time of the making of the will, by which Edwin was to pay the girls something.

If the evidence above briefly stated is credible, it fully sustains the finding of the referee. Edwin made the girls a clear and distinct proposition, which they as distinctly accepted. It thus became an agreement between them, good in form, and it appears that the sisters faithfully in all things performed it on their part. Hot only is there some evidence of the agreement as found by the referee, but his conclusion in that regard is well sustained; indeed, a different conclusion would, in my judgment, have been directly against the evidence.

Secondly. Was the agreement valid and binding on the defendant’s intestate ? It is urged that the agreement was without consideration and void. The consideration was that the sisters should sign admission of service of the citation, and forego all opposition to the probate of the will. They had a right, being heirs at law and next of kin of testator, to appear before the surrogate and oppose the probate. They and their mother, the executrix, deemed the will unjust to them, and an effort to prevent its establishment as a last will and testament was in contemplation, to be urged and maintained by the sisters, if possible. It was not yet established as a valid instrument—and its rejection would be greatly to Edwin’s detriment—and there was at least a possibility that it might be rejected by the surrogate. Besides, its proof and establishment as a valid will, if opposed, would involve considerable trouble and expense—much greater than if aE opposition were withdrawn. Under these circumstances, the agreement between the parties was entered into and was kept and performed by the sisters, by which they lost their right to oppose the probate, with the chance of bettering their condition by a possible successful opposition. It was held in Seaman v. Seaman, (12 Wend. 381,) that the withdrawing of a caveat by an heir at law, to the proving of the will of his ancestor, is a sufficient consideration to support a promise by the assignees for the payment of a specific sum of money to the heir; and the court say, “ whether he would have succeeded in the litigation, is not the test—it is enough that he yielded to his adversaries the right he possessed to contest the will; that he has done, and the compromise itself proves prima facie an acknowledgment by the defendant that there was color for his objection.”

This decision covers the case, completely, on the question of consideration. (See also 21 Eng. L. and Eg. 199.) It has often been held that a compromise of a doubtful claim wEl support a. promise to pay, and it has been said that it need not be a valid claim. Judge Bronson remarks in Stewart v. Ahrenfeldt, (4 Denio, 189,) that where an action is brought upon such promise, it is no answer to show that the first suit could not have been maintained, or that the claim was a vahd one. Judge Cowen, in Russell v. Cook, (3 Hill, 504,) says—In such cases it matters not on which side the right ultimately turns out to be. The court wiE not look behind the compromise. (See also 8 Barb. 653, 4.) These remarks, however, were made in regard to doubtful claims. So, too, the settlement of a suit is good consideration for a promise, even though no recovery could be had. In the absence of fraud, a very slight consideration is sufficient to uphold a promise. In this case there seems great propriety ' in the arrangement, which amounted to a compromise of a ' family difficulty, by the surrender of a substantial right given by law—fraught with danger to- the promissor, and involving trouble and expense to the parties, with possible advantage to the promisees. There was clearly a good consideration for the promise.

[St. Lawrence General Term, October 1, 1861.

Nor was the agreement void because made with married women. The contract had reference to their separate property. If the will had been invalid, for any reason, they would have taken an interest in the property left by their father^ free of any claim by their husbands. .

The referee was authorized to allow interest from the datp of the establishment of the will before the surrogate as a valid instrument. The strength of the evidence is in favor of the conclusion that the money fell due at that time. There is nothing fixing definitely any other period, and the evidence points to that as the time when the duty to pay should be deemed fixed and absolute.

No point is made in the appellant’s brief as to the admissibility of evidence. Nor do I discover on perusal of the case any ground of error in that regard. On the whole, I think the referee has done substantial justice between the parties.

The judgment should be affirmed.

Rosekrans, Potter and Bockes, Justices.]