| NY | Apr 22, 1913
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *212
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *213 There can be no doubt that there was sufficient consideration to support the agreement. The *214 defendants' testator was one of the proponents of the will, and as legatee was entitled to virtually one-fourth of the estate. As next of kin he would have received the same as the plaintiff, one-eighth. He wished to avoid the con test, and the plaintiff's agreement to stop the contest, not to bring any other actions, and to allow him to settle the estate in Delaware county was quite sufficient to support his agreement that the plaintiff should receive the share of the estate which he would have been entitled to in case of intestacy. The agreement was not one to answer for the debt or default of another, as is said by the respondent, but was an original promise. Language used by laymen is not to be interpreted according to its strict legal meaning. It is suggested that the agreement was void as against public policy, but we know of no rule of public policy which prevents those interested in an estate from agreeing upon the manner of its distribution so as to avoid the expense and trouble of litigation.
The real question in the case was whether the agreement was made on the assumption by the parties to it that the surrogate would refuse probate of the will on the writing which had been signed by them, and we are of the opinion that that was a question of fact for the jury. Standing alone, the conversation relied upon was sufficient to establish a valid agreement supported by a sufficient consideration. But, of course, it is to be construed not as an isolated transaction, but as a part of what had preceded it. Thus construed, we think that two possible inferences are permissible, 1, that the promise was exacted and given on the assumption that the surrogate would deny probate on the writing previously signed by the parties, and for the purpose of assuring the plaintiff that the defendants' testator would not, if the plaintiff did not appear on the adjourned day, undertake to prove the will regardless of the writing; 2, that the parties, being uncertain whether the writing would prove effectual, the plaintiff exacted, and the defendants' testator gave, the further *215 promise as an assurance that in any event the plaintiff should receive his distributive share of the estate, the same as in case of intestacy. Of course, on the first inference, there was no breach of contract on the part of the defendants' testator, as performance was prevented by an for which he was not responsible. But on the second reference he was answerable to the plaintiff for the latter's distributive share of the estate as in case of intestacy, whether the writing was approved and acted upon by the surrogate or not. It was for the jury to say which inference was justified by the evidence.
The judgment of the Appellate Division and of the trial court should be reversed and a new trial granted, with costs to abide the event.
CULLEN, Ch. J., WILLARD BARTLETT, HISCOCK, CHASE, CUDDEBACK and HOGAN, JJ., concur.
Judgment reversed, etc.