Busby v. Conoway

Eccleston, J., delivered the opinion of this court. The case of Seaman vs. Seaman, 12 Wend., 381, is very similar to the present in several important particulars. There the nar alleged that the father of the plaintiff and of the defendants left a will, in which he gave to the defendants and others a large amount of property, real and personal; that after death of the father and before the will was proved, the plaintiff became dissatisfied with its provisions, and entertaining doubts in regard to the sanity of the testator at die time of the execution of the will, he filed a caveat against its being admitted to probate. That subsequenfiy, in consideration that the plaintiff would withhold all opposition to the proving of the will, the defendants promised, in case the will should be proved and allowed, to pay to the plaintiff $500. The plaintiff also averred, that in consideration of the promise of the defendants, he promised to wifiihold all opposition to the probate of the will, and that he made no further opposition thereto, and that the will was thereupon duly proved and allowed, and letters testamentary were issued thereon to the defendants, who were named as executors in the will. Upon a demurrer to the nar judgment was given in favor of the defendants. And Justice Nelson, speaking for the court, says: “As, however, it does not sufficiently appear in the declaration that the plaintiff was particularly interested in setting aside the will -of his father, and without this he could have no interest in contesting it before the surrogate, and of course lost nothing by the agreement, I think the demurrer well taken. ’ ’ In the particular which rendered that nar defective, the one before us is certainly quite as defective. In Edwards vs. Baugh, 11 Mees. & Weis., 646, the allega [61] tion being that, certain disputes and controversies were pending between the plaintiff and defendant, whether the defendant was indebted to the plaintiff in the sum of 173J?, 2s, 3d, and that in consideration of the plaintiff’s promise not to sue, the defendant promised to pay him lOO.J’, the nar was held bad, as not showing a sufficient consideration, there being no allegation of any debt being due, but simply that a dispute and controversy existed respecting it. Lord Abinger thought there was nothing in the word “controversy” to render the alleged consideration a good one, and that the controversy merely was, that the plaintiff claimed the debt and the other denied it. See the cases referred to in the note on page 647. Also 4 East, 455, 463, Jones vs. Ashburnham; 2 Man., Gran. & Scott, 548, in 52 Eng. C. L. Rep., 546, Wade vs. Simeon, and 1 Parsons on Cont., 365 to 367. In Jones vs. Ashburnham, the nar was held bad, because it did not show that at the time of the promise made by the defendant there was any administration upon the estate of the deceased original debtor, or that he left any assets. In regard to the rule that “ any damage to another, or suspension or forbearance of his right, is a foundation for an undertaking,” &c., as laid down by Mr. Justice Yates, in Pillans vs. Van Mierop, 3 Burr., 1673, when considering how that rule would apply to the case as stated by the nar, in Jones vs. Ashburnham, Lord Ellcnborough says: “Now how does the plaintiff show any damage to himself by forbearing to sue, rvhen there was no fund which could be the object of suit; where it does not appear that any person in rerum natura was liable to be sued by him? No right can exist in this vague, abstract and indefinite way.” And again he says: “But here, whether there were any representative, or any funds of the original debtor, does not appear.” Grose, J., also refers to the defect in the nar for want of averring the existence of assets and an administration. Rolfe, B., in Edwards vs. Baugh, denies the correctness of the proposition laid down by Mr. Henderson, in argument that forbearance would be a good consideration for a promise; so that, if it had appeared on the face of the declaration that [62] nothing was due to the plaintiff, his forbearance to sue would even then' be a consideration. The Baron says: “I cannot subscribe to that. I think the plaintiff is bound to show a consideration, in the shape of something, either beneficial to the opposite party or detrimental to himself.” The present nar contains no allegation that Zachariah Oonoway, the testator, left any assets, either real or personal, after payment of his debts. Nothing is said having the slightest relation to the subject of assets, except simply that by the will, amongst other things, the testator devised and bequeathed to the defendant “real and personal property and estate of a large value, to wit, of the value of $5000.” The nar therefore does not sufficiently show that the forbearance promised by the plaintiff was either a detriment to him or a benefit to the defendant, which we consider necessary in a suit based upon forbearance. The statement here made in reference to the gift of property by the will, is very similar to that in Seaman vs. Seaman, where the averment is, that “the father of the plaintiff and of the defendants, in his lifetime, made and published his last will and testament, whereby he devised and bequeathed to the defendants and others a large amount of property, real and personal.” There is no proof before us except what was given by the plaintiff. And although its truth, in every particular; be admitted, and the declaration be assumed to contain the statement of a sufficient consideration for the alleged promise of the defendant, nevertheless we do not think the proof sustains the contract as laid. An affirmance of the judgment must therefore follow. Judgment affirmed.