Grandin v. Grandin

• Decision Date: 10 June 1887
• Citation: 9 A. 756,49 N.J.L. 508
• Parties: GRANDIN v. GRANDIN.
• Court: New Jersey Supreme Court

9 A. 756

49 N.J.L. 508

GRANDIN

v. GRANDIN.

Supreme Court of New Jersey.

June 10, 1887.

(Syllabus by the Court.)

On demurrer to the declaration.

Voorhees & Cotter, for plaintiff.

H. A. Fluck and J. A. Bullock, for defendant.

DEPUE, J. The parties to this suit are children and heirs at law, and of the next of kin of John Grandin, deceased. The agreement sued on was made on the settlement of a dispute over the probate of the will of the deceased. The declaration alleged, in substance, that the plaintiff and defendant were children of John Grandin, deceased; that the deceased died seized and possessed of real and personal estate; that the deceased, by his will, made some provision for the plaintiff, and made the defendant a residuary legatee; that the plaintiff filed a caveat against the probate of the will; that in consideration that the plaintiff would withdraw the caveat, and make no further opposition thereunder to the probate of the will, and would also assign to the defendant and one J. F. G. all his (the plaintiff's) right, title, and interest in the real and personal estate of the deceased other than the interests the plaintiff had under the will, the defendant promised and agreed to pay plaintiff the sum of $300, and also to assign to the plaintiff 200 shares of the capital stock of the Lehigh Valley Railroad Company. The declaration avers that the plaintiff withdrew the caveat, and made no further opposition thereunder to the probate of the will, and assigned his right, title, and interest in the real and personal estate of the deceased in conformity with his agreement; and that the defendant paid the $300, but refuses to assign the plaintiff the said stock. Breach, refusal to assign, etc. The ground of demurrer is that the declaration does not contain a sufficient allegation of consideration to support the promise.

The compromise of a doubtful claim actually in suit is in law a sufficient consideration to support a promise if the agreement to compromise operates as an extinguishment of the claim of the promisee. The extinguishment of the promisee's rights in the premises, by force of the compromise, is in such cases the benefit to the promisor, which gives it the effect of a consideration. Conover v. Stillwell, 34 N. J. Law, 54-58. This general rule is admitted. The contention is that the declaration fails to aver such substance in the plaintiff's rights in the premises as will bring this case within the operation of the rule. The filing of a caveat by the plaintiff in the surrogate's office was the commencement of a judicial contest over the will in the orphans' court. It was therefore the commencement of a suit by the plaintiff to contest the defendant's right as residuary legatee. The plaintiff's rights in the property of the deceased as an heir at law and one of the next of kin gave him a standing in court to litigate the will. The withdrawal of the caveat did not restore the jurisdiction of the surrogate to admit the will to probate, and litigation over the will might, notwithstanding the plaintiff's act, be resumed in the orphans' court by other persons interested. Slocum v. Grandin, 38 N. J. Eq. 485, and 40 N. J. Eq. 342. But the declaration avers that, in addition to withdrawing the caveat, the plaintiff did, in conformity with the agreement, assign all his right, title, and interest in the real and personal estate of the deceased other than the interest the plaintiff had under said will. By the assignment, the plaintiff divested himself of the interest which would give him a standing to litigate the will in the probate court, whose judgment, upon the validity of the will, as a disposition of personalty, unreversed on appeal, would be a finality; and he also divested himself of the right to contest the will as a demise of lands by action of ejectment. By the agreement of compromise, and the execution of it, plaintiff not only deprived himself of the ability to litigate the probate of the will, but also conferred upon the defendant find his associates an indefeasible title to all the estate, real and personal, of the deceased which would have come to the plaintiff as one of the heirs at law and next of kin other than the portion he would take under the will. This assignment of the plaintiff's interest in his father's property would stand, although the will should be set aside at the instance of other persons interested. To this extent, the defendant must be regarded as a purchaser of a contingent interest in the estate of the deceased.

But it is insisted that the declaration is defective, in that it contains no averment that the portion given to the plaintiff by the will, and which by the agreement he retained, was not equal to the share the plaintiff would have taken in case the deceased had died intestate. Seaman v. Seaman, 12 Wend 381, was relied on to support this contention. In that case it was held that the withdrawal of a caveat by an heir at law was a sufficient consideration for a promise by the devisees to pay the heir a specific sum, but that the declaration on the promise must aver that provision was not made for the plaintiff by the will equal to that which he would have taken as heir if there had been no will; for without such an averment, as was said by the court, it would not sufficiently appear that the plaintiff was particularly interested in setting aside the will; and, without this, he could have no interest in contesting it before the surrogate. This decision was followed and applied in Busby v. Conoway, 8 Md. 55, to the extent of holding that it was a fatal objection to a declaration, in such a suit, that it failed to allege that the testator left assets after the payment of debts in which the plaintiff would have had an interest.

It is conceded that where the transaction is simply between an heir and devisees, and there is no contingency which might affect the quantum of the estate to be divided,—as the court seems to have regarded the...