Grochowski v. Grochowski

• Decision Date: 10 November 1906
• Citation: 109 N.W. 742,77 Neb. 506
• Parties: GROCHOWSKI v. GROCHOWSKI ET AL.
• Court: Nebraska Supreme Court

77 Neb. 506

109 N.W. 742

GROCHOWSKI

v.GROCHOWSKI ET AL.

Supreme Court of Nebraska.

Nov. 10, 1906.

Syllabus by the Court.

A promise made in consideration of an agreement to refrain from resisting the probate of a will is not void as against public policy where no persons or interests other than the persons and interests of the contracting parties are prejudicially affected thereby.

Such a promise is not without consideration, and will be enforced.

Commissioners' Opinion. Department No. 2. Appeal from District Court, Cuming County; Graves, Judge.

Action by Thomas Grochowski against Michael Grochowski and others. Judgment for plaintiff, and defendants appeal. Affirmed.R. E. Evans, for appellants.

A. R. Oleson, for appellee.

JACKSON, C.

On February 25, 1897, John Grochowski died leaving a will, by the terms of which he bequeathed $100 to St. Mary's Catholic Church at West Point, $15 to his son Thomas Grochowski, $200 to each of the five children of Thomas Grochowski, $1,000 to his grandson, Mike Grochowski, $1,500 to his daughter, Mary, and the remainder of his estate, including a farm of 160 acres, to his son, Michael Grochowski, on the condition that the son Michael provide for the widow of the deceased during her lifetime. The son Michael Grochowski was appointed executor of the will. The will was proposed for probate in the county court of Cuming county, and the son Thomas appeared with his attorney for the purpose of contesting the will. Negotiations between the brothers, Michael and Thomas Grochowski, led to the following written contract: “Whereas, John Grochowski, in the seventh item of his last will and testament, bequeathed his farm, consisting of 160 acres to his son Mike Grochowski upon certain conditions therein stated, and, Whereas, said will was on this day offered for probate in the county court of Cuming county, Nebraska, and, Whereas, Thomas Grochowski objected to the probate of the said will, Now, therefore, for the purpose of avoiding litigation it is hereby agreed by and between the said Mike Grochowski and Thomas Grochowski that the said Thomas Grochowski withdraw all objections to the probating of said will, and in consideration thereof that said Mike Grochowski hereby agrees with the said Thomas Grochowski that he will fulfill all the conditions and stipulations contained in the said seventh item in the last will and testament of the said John Grochowski, and after the death of their mother named in said item, he will divide whatever is left of the farm named in said item or from the proceeds of the sale thereof with the said Thomas Grochowski, but said property is not to be sold by the said Mike Grochowski, unless it is necessary to do so for the purpose of supporting their mother in the manner provided in said seventh item of said will, unless with the consent of said Thomas Grochowski. Dated at West Point, April 5th, 1897. Chas. McDermott. P. F. O'Sullivan. Peter Hasler. Mike Grochowski. Thomas Grochowski.” The widow of John Grochowski died in 1902 and on February 24, 1903, this action was instituted by the plaintiff to enforce a specific performance of the contract with his brother Michael.

In the petition it was alleged that the contract, as agreed upon between the parties,...