Stone v. Gilman

Bingham, J. The excluded evidence tended to prove an agreement of the defendant and his wife not to oppose the probate of the father’s will, as a consideration for the promise of the plaintiff to consider as paid the note in suit, and deliver it to Mrs. Gilman as her share. Such a promise by the defendant and his wife would be a sufficient consideration for the alleged promise of the plaintiff. Hall v. Buckminster, 5 Pick. 393; Met. Con. 163, 172, 173; Templeton v. Bascom, 33 Vt. 132; Farmer v. Stewart, 2 N. H. 97; Stebbins v. Smith, 4 Pick. 97; 1 Pars. Con. 444; Burnham v. Dunn, 35 N. H. 556, 560. The evidence also tended to prove that the defendant and his wife, on account of the plaintiff’s promise, did not oppose the probate of the will, and thus changed their position. We see no reason why the ordinary doctrine of estoppel should not apply, and the plaintiff be estopped from maintaining the suit on the evidence offered. Lyman v. Littleton, 50 N. H. 42. The verdict is not now set aside, but a trial is granted of the question of estoppel. The presiding justice at the trial will determine how much of the case it is necessary to try, to correct the error. Doe, C. J., did not sit.