Sellars v. Jones

• Citation: 175 S.W. 1002,164 Ky. 458
• Parties: SELLARS v. JONES.
• Decision Date: 04 May 1915
• Court: Court of Appeals of Kentucky

175 S.W. 1002

164 Ky. 458

SELLARS v. JONES.

Court of Appeals of Kentucky.

May 4, 1915

Appeal from Circuit Court, Graves County.

Action by Jemima Jones against R. L. Sellars. Judgment for plaintiff, and defendant appeals. Affirmed.

Hester & Hester, of Mayfield, for appellant.

Moorman & Warren, of Mayfield, for appellee.

CLAY C.

In the year 1914 James Sellars, a resident of Graves county, died leaving a last will and testament by which he devised and bequeathed to his nephew, R. L. Sellars, all of his estate consisting of land, cash, and other items of personal property of the value of about $5,000. James Sellars had never been married, and, had he died intestate, his estate would have been inherited by all of his nephews and nieces being seven in number. The testator's nephews and nieces, with the exception of Jemima Jones and R. L. Sellars, contested the will. The will was sustained.

Plaintiff, Jemima Jones, brought this action to recover her portion of her uncle's estate. The basis of her action is an agreement on the part of defendant, R. L. Sellars, to pay her her portion of the estate if she would refrain from taking any part in the proposed contest and the will should be sustained. Defendant denied the agreement relied on, and pleaded a counterclaim for $300. The trial before a jury resulted in a verdict and judgment for plaintiff. Defendant appeals.

Plaintiff testified that before the contest was filed her brother, the defendant, stated to her that if she would not join in the contest, and the will was broken, she would get her part anyhow. On the other hand, if she would not join in the contest, and the will was sustained, he would see that she got her part of the estate, if it took every foot of land he got. She consented to this arrangement, and refused to have anything to do with the contest. Plaintiff's children, who claim to have been present when the conversation took place, testified to the same effect. Annie Gossett says that defendant in her presence stated that he had promised plaintiff her share if she would not join in the contest. Other witnesses testified that plaintiff refused to join in the contest. On the other hand, the defendant testified, in substance, that he had been assisting Mrs. Jones and her husband. When the question of contest came up he advised her to stay out of it. He told her that if the will was broken she would get her part anyway, and he would see that she got it. He admits, however, that he told her he would help her, and he did help her. Mrs. James Rogers testified that plaintiff, in a conversation with her, said that she felt like she almost had had her part, as Bob had been so good to her.

It is well settled that forbearance to sue is a sufficient consideration to support a promise. However, a mere forbearance to sue is not enough in the absence of circumstances from which an agreement to forbear may be inferred. But an actual forbearance to sue may often, in connection with other circumstances, sometimes slight, be evidence of an implied agreement to forbear, and thus form a consideration for a promise. Forbearance to sue on a claim clearly groundless is not a sufficient consideration, for the reason that the promotion of such suit would be either fraudulent or wanting in good faith; but, short of that, forbearance to sue is a good consideration for a promise founded thereon. It is only essential that the claim be doubtful either in law or equity and asserted in good faith. Elliott on Contracts, § 235; Robinson v. Gould, 11 Cush. (Mass.) 55; Steadman v. Guthrie, 4 Metc. 147; Cline v. Templeton, 78 Ky. 550; Matthews v. Morris, 31 Ark. 222; Mackin v. Dwyer, 205 Mass. 472, 91 N.E. 893; Rue v. Meirs, 43 N.J.Eq. 377, 12 A. 369; Longridge v. Dorville, 5 B. & Ald. 117, 7 E. C. L. 74. In the case of Palmer v. North, 35 Barb. (N. Y.) 282, where certain heirs of the testator complained of provisions in the will, and threatened to oppose its probate, an agreement by one interested in its probate to pay such heirs a sum of money if they would refrain from taking steps to oppose its probate was held to be a valid and enforceable agreement. In the case of Clark v. Lyons, 38 Misc. 516, 77 N.Y.S. 967, affirmed without opinion in 76 A.D. 622, 79 N.Y.S. 1129, the court, in considering the validity of a promise by an heir not to oppose the probate of a will, made in reliance upon an agreement on the part of the promisee to pay her a sum of money, said:

"I think the evidence clearly shows that the agreement is a personal undertaking on the part of the defendant, based upon a good and valuable consideration moving from the plaintiff to the defendant, and that the recovery is correct in law and in equity. The defendant is a legatee and also a devisee under his father's will. The plaintiff's right and power to protect her interest, by a contest of the codicils under which the defendant received this property, has been annulled and destroyed by relying on the promise so made. The defendant has failed to keep that agreement, and I think he should respond in damages."

In the case of Fain, etc., v. Turner's Administrator, 96 Ky. 634, 29 S.W. 629, 16 Ky. Law Rep. 719, a father had advanced to each of his other children $1,000 more than he had advanced to each of his daughters. After the father's death the mother promised the daughters to pay them $1,000 each if they would not bring suit and would allow the father's estate to be distributed without regard to advancements, which was done. The agreement not to sue or present their claims was held a sufficient consideration for the mother's promise. In the case of Gaither v Bland, 7 Ky. Law Rep. 518, it was held that an agreement by one interested in the estate not to oppose the probate of a will was sufficient consideration to support the promise. In Sprigg v. Sprigg, 90 S.W. 985, 28 Ky. Law Rep. 944, an agreement by a legatee in her own behalf, and in behalf of her sister, who was mentally incompetent, and who was also a legatee, by which they were each to pay from their legacies to certain heirs of the testator a sum of money in consideration of the withdrawal on the part of such heirs of proceedings taken by them to contest the probate of testator's will, was sustained as to both the legatee who was...