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