Bellows v. Sowles

[169] The opinion of the court was delivered, by Powers, J. Counsel for the defendant have demurred to the declaration in this case upon two grounds; first, that the consideration alleged is insufficient; secondly, that the promise not being in writing comes within, and is therefore not enforceable under, the Statute of Frauds. It has been so often held that forbearance of a legal right affords a sufficient consideration upon which to found a valid contract, and that the consideration required by the Statute of Frauds does not differ from that required by the common law, it does not appear to us to be necessary to review the authorities, or discuss the principle. As to the second point urged in behalf of the defendant, this case presents greater difficulties. Although the Statute of Frauds was enacted two centuries ago, and even then was little more than a reenactment of the pre-existing common law, and though cases have continually arisen under it, both in England and America, yet so confusing and at times inconsistent are the decisions, that its consideration is always attended with difficulty and embarrassment. The best understanding of the statute is derived from the language itself, viewed in the light of the authorities which seem to us to interpret its meaning as best to attain its object. That clause of the statute under which this case falls, reads: “No action at law or in equity shall be brought * * * upon a special promise of an executor or administrator to answer damages out of his own estate.” This special promise referred to is, in short, any actual promise made by an executor or administrator, in distinction from promises implied by law, which are held not within the statute. The promise must be “to answer damages out of his own estate.” This phraseology clearly implies an obligation, duty, or liability on the part of the testator’s estate, for which the executor promises to, pay damages out of his own estate. The statute, then, was enacted to prevent executors [170] or administrators from being fraudulently held for the debts or liabilities of the estates upon which they were called to administer. In this view of the case, this clause of the statute is closely allied, if not identical in principle, with the following clause, namely: “ No action, etc., upon a special promise to answer for the debt, default or misdoings of another.” And so Judge Royce, in delivering the opinion of the court in Harrington v. Rich, 6 Vt. 666, declares these two classes of undertakings to be “very nearly allied,” and considers them together. This seems to us to be the true idea of this clause of the statute: — that the undertaking contemplated by it, like that contemplated by the next clause, is in the nature of a guaranty; and that reasoning applicable to the latter is equally applicable to the former. We believe this view to be well supported by the authorities. Browne, in his work on the Statute of Frauds, p. 150, says: “In the fourth section of the Statute of Frauds, special promises of executors and administrators to answer damages out of their own estates appear to be spoken of as one class of that large body of contracts known as guaranties.” And so on page 184, he interprets “ to answer damages ” as equivalent to to pay debts of the decedent. This seems to be the construction given to the statute by Chief Justice Redeield, in his work on Wills. Vol. II. p. 290, et seq. The Revised Statutes of New York, Vol. II. p. 113, have improved upon the phraseology of the old statute as we have adopted it, by adding, or to pay the debts of the testator or intestate out of his own estate. If we are correct in this view of the relation between these two clauses, the solution of the question presented by this case is comparatively easy. It has been held in this State, that when the contract is founded upon a new and distinct consideration moving between the parties, the undertaking is original and independent, and not within the statute. Templeton v. Bascom, [171] 33 Vt. 132; Cross v. Richardson, 30 Vt. 641; Lampson v. Hobart, 28 Vt. 697. Whether or not it would be safe to announce this as a general rule of universal application, |it is a principle of law well fortified by authority, that where the principal or immediate object of the promisor is not to pay the debt of another, but to subserve some purpose of his own, the promise is original and independent, and not within the statute. Brandt Sur. 72; 3 Par. Cont. 24; Rob. Fr. 232; Emerson v. Slater, 22 How. 28. And this seems to be the real ground of the decisions above cited in the 28th and 30th Vt., in which the court seems to blend the two rules just laid down. Pierpoint, J., in delivering the opinion of the court in Cross v. Richardson, supra, says: “The consideration must be not only sufficient to support the promise, but of such a nature as to take the promise out of the statute; and that requisite, we think, is to be found in the fact’ that it operates to the advantage of the promisor, and places him under a pecuniary obligation to the promisee, entirely independent of the original debt.” Apply this rule to this case. Here the main purpose of this promise was, not to answer damages (for the testator) out of his own estate, but was entirely to subserve some purpose of the defendant. The consideration did not affect the estate, but was a matter purely personal to the defendant. Here there was no liability or obligation on the part of the estate to be answered for in damages. It could make no difference to the execittor of that estate whether it was to be divided according to the will, or by the law of descent. If the subject matter of this contract had been something entirely foreign to this estate, no one would maintain that the defendant was not bound by it, because he happened to be named executor in this will. Here the subject matter of the contract was connected with the estate, but in such a way that it was practically immaterial to the estate which way the question was decided. There exists, therefore, in [172] this case, no sufficient, actual, primary liability to which this promise could be collateral. This .seems to us to be the fairest interpretation of the law. The statute was passed for the benefit of executors and administrators; but it might be said of it, as has been said of the protection afforded to an infant by the law of contracts, that “ it is a shield to protect, not a sword to destroy.” If this class of contracts was allowed to be avoided under it, instead of being a prevention of frauds, it would become a powerful instrument for fraud. As in this case the plaintiff would be deprived of his legal right to contest the will, by a party who has reaped all the benefit of the transaction, and is shielded from responsibility by a technicality. We do not believe this was the result contemplated by the statute. The judgment of the County Court overruling the demurrer and adjudging the declaration sufficient is affirmed, and case remanded with leave to the defendant to replead on the usual terms.