Vreeland v. Turner

Montgomery, J. This is an action of assumpsit. At the close of the testimony, the circuit judge directed a verdict for the defendant, and plaintiff brings error. The cause of action stated in the declaration is that plaintiff “had a valid claim against the estate of David Wallace, an incompetent, which he forebore to press upon the express promise of Robert Turner to pay the same to him, said claim being otherwise good, and a valid and legal claim.” On the trial the following facts appeared: Plaintiff had a claim of $230 against the estate of David Wallace, deceased. David Wallace had in his lifetime conveyed all of his property to his wife, Harriet J. Wallace, who died before her husband. Defendant was executor of the estate of Harriet J. Wallace. The administrator of the estate of David Wallace, George McDon [367] aid, had filed a bill to set aside the conveyance from David Wallace to Harriet J. Wallace in the interest of creditors of David Wallace’s estate. On the filing of this bill in the interest of these creditors, a bond was executed by the administrator of the David Wallace estate and four of the creditors of said estate, of whom plaintiff was one, as security for costs. Plaintiff’s counsel states in his brief his inference from the testimony, as follows : “That plaintiff went upon said bond, and furnished the co-security, so that he could get what was coming to him; when the defendant came to plaintiff, and asked him to get off the bond, and withdraw his aid from the suit, in consideration of which action defendant promised plaintiff to pay him a certain sum of money, agreed, as plaintiff claims, to be the sum of $230; that this proposition, which plaintiff claims defendant accepted, was greatly to defendant’s personal profit.” The questions raised by defendant’s counsel are whether this alleged promise was an original promise or a collateral promise. It appears that the plaintiff received from the estate of David Wallace 57 per cent, of his claim later on, and it does not appear affirmatively that the estate of David Wallace was discharged of any obligation to plaintiff. The circuit judge held that the agreement, as testified to by plaintiff, was, under the circumstances disclosed, against public policy. We are cited to no case directly in point, but we think, on principle, the ruling of the circuit judge should be sustained. The proceeding instituted was in the interest of the several creditors of the David Wallace estate. By the agreement made, one of these creditors sought to secure an advantage over the other creditors by a secret arrangement, which the law does not favor. The case is in principle like that of Adams v. Outhouse, 45 N. Y. 318. In that case several of the next of kin were-about to take proceedings against the administrator to oppose his account of the estate, and to compel him to account for other personal property claimed to have been appropriated by him. He secretly promised two of them that, if they would acquiesce in [368] his account, he would pay them a certain sum. They acquiesced, and the others ceased opposition, and came to a settlement. The promise was held void. In the present case the plaintiff and the other creditors of the David Wallace estate were seeking to reach a fund in which they had a common interest. It was bad faith in the plaintiff to seek to divert any portion of that fund, and the contract must be held to be against public policy. See Greenh. Pub. Pol. 136. Judgment will be affirmed, with costs. The other Justices concurred.