111 Minn. 449 | Minn. | 1910
Lead Opinion
Samuel Pray made a will, leaving his property to his widow, Frances J. Pray, and other trustees. The widow, an old lady, and one Mealey, acted as trustees throughout the administration of the estate. The will provided for a number of legacies, including one
This action was brought against her estate to recover upon the-contract. The district court, to which an appeal had been taken from the probate court, granted a motion to dismiss, and affirmed the order of the probate court, denying the claim which plaintiff had filed against the estate under the contract previously stated.. The plaintiff moved to set aside the verdict and decision and for a new trial. This appeal was taken from the order denying that, motion.
The defendant properly insists that the plaintiff must show that, she had an actual, valid claim against the estate, which she refrained from prosecuting, so that she suffered a loss, or Mrs. Pray,, deceased, gained an advantage. This, we think, the record conclusively establishes she did show. She had a valid claim. That claim was based upon an unpaid legacy of $5,000. Defendant admitted that the claim was valid, and paid it to the extent of $2,724.90. The fact is unquestioned that plaintiff refrained from prosecuting her investigation into the affairs of the estate and its management by the trustees. Frances J. .Pray derived such an advantage there
The authorities to which defendant refers us are entirely consistent with this view of the law. Anderson v. Nystrom, 103 Minn. 168, 114 N. W. 742, 13 L. R. A. (N. S.) 1141, 123 Am. St. 320, indeed, necessitates this conclusion.' It was there held that “to constitute a mere promise to refrain from doing an act a consideration sufficient to support a contract, an advantage must accrue therefrom to the promisee or a loss or disadvantage be sustained by the promisor. * * * A promise to make the estate of ■ a deceased person no trouble in the matter of attempting to enforce claims against it, where the claims are barred by the statute of limitations and the estate of the deceased person is insolvent, does not constitute a sufficient consideration for a promissory note given by the heirs of the deceased person.”
That is, a promise to refrain from attempting to enforce a claim barred by the statute of limitations is not a sufficient consideration for a promise to pay money, made by the heirs. In the case at bar the plaintiff’s claim was not barred by the statute of limitations, but was valid and subsisting. In that case, neither party lost or gained by the promise to abstain. In the case at bar, the plaintiff suffered a loss and the defendant gained an advantage. The court in that case, per Brown, J., said: “A promise to refrain from resorting to legal means to enforce a valid obligation might in a proper case furnish a valid consideration for a promise by a third person to pay the same.” Within this obviously sound rule, the promise of Frances J. Pray to pay the balance of the legacy to the plaintiff was a valid contract.
Reversed.
Rehearing
On July 29, 1910, the following opinion was filed:
Defendant in its motion for reargument insists there is a difference between a contest or claim by a legatee concerning a deficiency
Motion denied.