Krell v. Codman

• Decision Date: 24 October 1891
• Citation: 28 N.E. 578,154 Mass. 454
• Parties: KRELL et al. v. CODMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 454

28 N.E. 578

KRELL et al. v. CODMAN.

Supreme Judicial Court of Massachusetts, Suffolk.

October 24, 1891

COUNSEL

C.K. Codman, for plaintiffs.

R Codman, Jr., for defendant.

OPINION

HOLMES J.

This is an action on a voluntary covenant executed by the defendant's testatrix, in England, that her executors within six months after her death should pay to the plaintiffs upon certain trusts the sum of £ 2, 500, with interest at 4 per cent. from the day of her death.

It is agreed that by the law of England such a covenant constitutes a debt of the covenantor legally chargeable upon his or her estate, ranking after debts for value, but before legacies but it is contended by the defendant that a similar instrument executed here would be void. The testatrix died domiciled in Massachusetts, and the only question is whether the covenant can be enforced here. If a similar covenant made here would be enforced in our courts, the plaintiffs are entitled to recover; and, in the view which we take on that question, it is needless to examine with nicety how far the case is to be governed by the English law as to domestic covenants, and how far by that of Massachusetts.

In our opinion, such a covenant as the present is not contrary to the policy of our laws, and could be enforced here if made in this state. If it were a contract upon valuable consideration, there is no doubt it would be binding. Parker v. Coburn, 10 Allen, 82. We presume that, in the absence of fraud, oppression, or unconscionableness, the courts would not inquire into the amount of such consideration. Parish v. Stone, 14 Pick. 198, 207. This being so, consideration is as much a form as a seal. It would be anomalous to say that a covenant, in all other respects unquestionably valid and binding,--Comstock v. Son (Mass.) 28 N.E. 296; Mather v. Corliss, 103 Mass. 568, 571,--was void as contravening the policy of our statute of wills, but that a parol contract to do the same thing in consideration of a bushel of wheat was good. So, again, until lately an oral contract founded on a sufficient consideration to make a certain provision by will for a particular person was valid. Wellington v. Apthorp, 145 Mass. 69, 13 N.E. 10. Now, by statute, no agreement of that sort shall be binding unless such agreement is in writing, signed by the party whose executor is sought to be charged, or by an authorized agent. St.1888, c. 372. Again, it would be going a good way to say, by construction, that a covenant did not satisfy this statute.

The truth is that the policy of the law requiring three witnesses to a will has little application to a contract. A will is an ambulatory instrument, the contents of which are not necessarily communicated to any one before the testator's death. It is this fact which makes witnesses peculiarly necessary to establish that the document offered for probate was executed by the testator as a final disposition of his property. But a contract which is put into the hands of the adverse party, and from which the contractor cannot withdraw stands differently. See Perry v. Cross, 132 Mass. 454, 456, 457. The moment it is admitted that some contracts which are to be performed after the testator's death are valid without three...