Hartle v. Stahl

Bartol, J.,. delivered the opinion of this Court. The appellees were plaintiffs below, and brought this-suit upon an alleged promise made by the appellant to Mary, one of the plaintiffs, while she was sole, to pay her and each of'hef sisters $1,000 in addition to-the legacies bequeathed to them by their father’s will, in° consideration that they would forbear and desist from instituting legal proceedings to test the validity of the will, which they had determined to do. The main question presented by the appeal is, whether in the appellees’ prayer, which was granted, there is a sufficient legal consideration stated to support the promise of the appellant. The will of John Hartle, offered in evidence and incorporated in the prayer, shows that the testator devised to the defendant and his brother Frederick the farm on which the testator resided, containing 203 acres of land, together with all his real and personal estate, subject to the payment of certain pecuniary legacies to the widow and his son Jacob and the several daughters, and appointed the defendant sole executor. ¹⁷¹ The hypothesis of the prayer is, that if the plaintiff was one of the daughters and heirs at law of John Hurtle, the testator, that she and her sisters were dissatisfied with the will and determined to take legal proceedings to test its validity, and to vacate the same, and the defendant, in consideration that she and her sisters would forbear and desist from instituting such legal proceedings, promised to pay to her and each of her sisters one thousand dollars in addition to the legacies given them by the will, and in consequence of such promise and undertaking of the defendant, the plaintiff and her sisters did desist and refrain from taking’ any legal proceedings in the premises, and the said will was then admitted to probate, and letters testamentary were granted thereon to the defendant; then a right of action hath accrued to the plaintiffs on and in respect of said promises of the defendant for the recovery of said sum of one thousand dollars.

The objection taken to this prayer is, that it does not affirmatively state that the testator left any assets after the payment of his debts, or show that the plaintiffs would have derived any l^nefit from setting the will aside, or that there was any sufficient or probable ground for impeaching its validity; and therefore it is contended that the promise of the defendant was without any legal or valid consideration to support it. It is well settled that where an action is brought upon a promise made in consideration of forbearance to sue, it must appear that there was some one in esse liable to be sued, and something in relation to which suit could be brought. Jones vs. Ashburnham, 4 East., 456. And it is also settled that if in such case it appear that there existed no probable ground upon which such suit could be maintained, the consideration of the promise fails and no action can be maintained thereon.

Edwards vs. Baugh, 11 Mees. & W., 639 ; Wade vs. Simeon, 2 Man., G. & S., 548 ; (52 E. C. L. R., 546.) Those cases have been cited and relied on by the appel ¹⁷² lant as conclusive of this; hut it does not seem to us to fall within the same principle. The promise sued on here was not made in consideration of the forbearance by the plaintiffs to sue for the recovery from the defendant of a sum of money or any specific thing, hut was a promise or agreement for the compromise or settlement of a controversy in relation to a matter in which both parties were interested. In Stoddard vs. Mix, 14 Con., 22, the rule of law is correctly stated thus : “ The mere forbearance of a claim or demand before suit brought, which is not in fact a legal demand, is not of itself a sufficient consideration to support a promise. But either the compromise of a doubtful claim, or the relinquishment of a pending suit, is a good consideration for a promise,” and for this are cited, Bidwell vs. Catton, Hob., 216 ; Longridge et al. vs. Dorville et al., 5 Barn. & Ald., 117 ; Thornton vs. Fairlie, 8 Taunt., 354 ; Union Bank of Georgetown vs. Geary, 5 Peters, 99 ; Pow. on Con., 346, 354 ; Chitty on Con. 9. “ The prevention of litigation is a valid and sufficient consideration; for the law favors tl^ settlement of disputes.” Parsons on Con., 363. “To support a compromise it is sufficient that the parties entering into it thought, at the time, there was a bona fide question between them, though it may eventually turn out there was in fact no such question.

Ex parte Lucy, &c., 21 E. L. & E. R., 199. The same principle was recognized hy the Supreme Court in Union Bank of Georgetown vs. Geary, 5 Peters, 98 . In Stapilton vs. Stapilton, 1 Atkyns, 10, Lord Hardwicke (referring to Cann vs. Cann, 1 Peere. Wm.’s, 727,) says, “it was laid down that an agreement entered into upon supposition of a-right, or of a. doubtful right; though it