164 Ky. 458 | Ky. Ct. App. | 1915
Opinion ok the Court- by
Affirming.
In the year 1914 James Sellars, a resident of Graves County, died, leaving a last will and testament, by which he devised and bequeathed to his nephew, R. L. Sellars, all of his estate, consisting of land, cash and other items of personal property of the value of about $5,000.00. James Sellars had never been married and had he died intestate his estate would have been inherited by all of his nephews and nieces, being seven in number. The testator’s nephews and nieces, with the exception of Jemima Jones and R. L. Sellars, contested the will. The will'was sustained.
Plaintiff, Jemima Jones, brought this action to recover her portion of her uncle’s estate. The basis of her action is an agreement on the part of defendant, R. L. Sellars, to pay her her portion of the estate if she would refrain from taking any part in the proposed contest and the will should be sustained. Defendant denied the agreement relied on and pleaded a counter-claim for $300.00. The trial before a jury resulted in a verdict and judgment for plaintiff. Defendant appeals.
Plaintiff testified that before the contest was filed her brother, the defendant, stated to her that if she would not join in the contest and the will was broken, she would get her part anyhow. On the other hand, if she would not join in the contest and the will was sustained, he would see that she got her part of the estate if it took every foot of land he got. She consented to this arrangement and refused to have anything to do with the contest. Plaintiff’s children, who claim to have been present when the conversation took place, testified to the same effect. Annie Gossett says that defendant,
It is well settled that forbearance to sue is a sufficient consideration to support a promise. However, a mere forbearance to sue is not enough in the absence of circumstances from which an agreement to forbear may be inferred. But an actual forbearance to sue may often, in connection with other circumstances, sometimes slight, be evidence of an implied agreement to forbear and thus form a consideration for a promise. Forbearance to sue on a claim clearly groundless is not a sufficient consideration for the reason that the promotion of such suit would be either fraudulent or wanting in good faith, but, short of that, - forbearance to sue is a good consideration for a promise founded thereon. It is only essential that the claim be doubtful either in law or equity and asserted in good faith. Elliott on Contracts, Section 235; Robinson v. Gould, 11 Cush. (Mass.), 55; Steadman v. Guthrie, 4 Metc., 147; Cline v. Templeton, 78 Ky., 550; Matthews v. Morris, 31 Ark., 222; Macklin v. Dwyer (Mass.), 91 N. E., 893; Rue v. Meirs, 43 N. J. Eq., 377, 12 Atl., 369; Longridge v. Dorville, 5 B. & Ald., 117, 7 E. C. L., 74. In the case of Palmer v. North, 35 Barb., 282, certain heirs of the testator complained of provisions in the will, and threatened to oppose its probate, an agreement by one interested in its probate to pay such heirs a sum of money if they would refrain from taking steps to oppose its probate was held to be a valid and enforceable agreement. In the case of Clark v. Lyons, 38 Misc., 516, 77 N. Y. Supp., 967, affirmed without opinion in 76 App. Div., 622, 79 N. Y. Supp., 1129, the court; in considering the validity of a promise by an heir not to oppose the probate of a' will, made in reliance upon an agreement on the part of
In the case under consideration plaintiff would have inherited a portion of the devised estate if the will had been broken. Other relatives of the testator instituted a contest. According’ to her evidence, the defendant made an agreement with her that if she would not unite in the contest he would pay her her share of the estate if the will was sustained. The agreement was not without consideration or contrary to public policy, and the evidence, we think, was not only sufficient to take the case to the jury, but to sustain the verdict.
By instruction No. 1 the court told the jury that if they believed from the evidence that the defendant approached plaintiff and prevailed upon her not to join ■the contestants of the will of James Sellars or take any action in connection with such proposed contest, and that defendant promised and agreed with plaintiff that if she would refrain from so doing and withhold her consent and take no action towards contesting said will, he, the defendant, would, in the event same was sustained and admitted to probate, pay and deliver to her the distributable share of such estate which she would receive but for such will, and they further believed from the evidence that by reason of any such promise, and agree
Defendant complains of the failure of the court to give an offered instruction to the effect that if the jury believed from the evidence that plaintiff refrained from joining in said contest proceedings, if she did refrain, on account of thinking it should not be broken, or because of her kind feelings for defendant, or on account of his assisting her and her family financially, and not because she was obligated by contract not to do so, they shonld find for the defendant. In view of the fact that under the given instructions plaintiff was not entitled to recover unless there was an agreement on her part to refrain from the contest, and becansé of the agreement she did refrain, we are not disposed to hold that the refusal of the offered instruction, which merely told the jury that if plaintiff refrained from the contest for certain particular reasons other than the agreement to refrain, was prejudicial error.
Judgment affirmed.