Sheppey v. Stevens

• Decision Date: 26 January 1911
• Citation: 185 F. 147
• Parties: SHEPPEY v. STEVENS.
• Court: U.S. District Court — Northern District of New York

185 F. 147

SHEPPEY v. STEVENS.

United States Circuit Court, N.D. New York.

January 26, 1911

Sidney A. Hungerford and H. & W. A. Hendrickson(Geo. M. Palmer, of counsel), for plaintiff.

Fowler & Schenck(Randall J. Le Boeuf, of counsel), for defendant.

RAYDistrict Judge.

The amended complaint presents two questions:

First.Is an agreement valid which is made by two of the heirs at law and next of kin of a living person, he having no wife without his knowledge or consent, the one with the other, to render services and use efforts whereby certain improper and disgraceful relations of such person with others (not marital or relating to prospective marital relations), and which not only disgrace the said third person but said heirs at law and next of kin, and also deprive such third person of his money and property, if possible, are to be broken up and discontinued, or caused to be discontinued, and which services are to be paid for as follows, that if either of said parties should receive less than the other party under and by the last will and testament of said third person the one of said parties receiving the most under said last will and testament of said person would pay to the other an amount so that the one receiving the least, or nothing, under the will of said person, on his death should be paid and receive an amount equal to one-half of the legacies devised and bequeathed by said third person by his will, if any, to the said parties making such agreement, or to either of them?

Second.Does a complaint state a cause of action which alleges that a person, the plaintiff, being one of the heirs at law and next of kin of and to a deceased person leaving a large estate and no widow or descendant, and entitled to share in such estate in case said deceased person had left no valid will, and being 'prepared to contest' the alleged will of said deceased person on the ground that in the making of the will the testator had 'been influenced' by the one named as executor and principal legatee and by others, agreed with the one named as executor in said alleged will and also as principal legatee, the defendant, that he would not contest such will on such grounds and would allow it to go to probate, the said person named as executor and principal legatee agreeing on his part that he would pay to him, the intending objector, the one-half of his legacy on the settlement of his accounts if he would not file objections and contest said alleged will on such named grounds, and which complaint also alleges that the plaintiff in execution of such agreement, and because thereof, and relying thereon, did not contest the said will but allowed it to go to probate without objection, and that the accounts of the said executor have been settled, and that he as legatee has received his legacy but refuses to pay, as per the said agreement?

The defendant insists that the agreement first referred to is void on its face as contrary to public policy, and that the second agreement shows no valid consideration, as it does not appear the proposed contestant, plaintiff here, had any ground for making a contest, but that it appears he had no valid ground, as his proposition was to contest on the ground the defendant here, the one making the agreement to pay, and others 'had influenced' the testator in making the will; there being no charge of 'undue' influence.It is of course well known that 'undue influence' will invalidate a will, while mere 'influence' will not.Must the party proposing to contest a will in good faith, to file objections, allege good and sufficient grounds or that he proposes to object, on good and sufficient grounds, in order to make the agreement to pay money if such objections are not filed, valid and binding?Forbearance to do a thing which a party has the legal and moral right to do, and the doing of which would injure another pecuniarily or cause him trouble and expense, is usually a sufficient consideration for an agreement to pay money or for the payment of money in the absence of threats or duress.It is not alleged that this agreement was made with the defendant as executor, but with him as a principal legatee.It is not alleged that the proposed contest would in any way have affected the amount the defendant was to receive as legatee under the will.It is not alleged directly that a contest would have affected the defendant in any way.It is implied, however, that a contest would have somewhat depleted and delayed the administration and division of the estate and the payment of legacies.

In Prater v. Miller,25 Ala. 320, 60 Am.Dec. 521, it was held that it is no valid consideration to forbear to contest the probate of a will, when there are no reasonable grounds on which to base a contest.If this be the law, it would seem that the complaint should allege that the one agreeing to forbear to contest, or to file objections and contest, had reasonable ground to contest the probate of the will.Assuming then that this defendant and others had in fact 'influenced' the testator in making his will, there existed no reasonable ground for a contest, as there was no claim of the exercise of 'undue influence,' and this complaint does not allege that the plaintiff had reasonable grounds upon which to base a contest of the will.

But here it is alleged that the plaintiff and defendant were and are heirs at law and next of kin of the testator, and that he left no widow, father, mother, children, or lineal descendants, and 'had he died intestate this plaintiff, as one of his heirs at law and next of kin, would have been entitled to a share of the real estate and personal property left by him. ' I think this allegation sufficient to show a particular interest of the plaintiff in the estate of the testator and a right to contest the proof and probate of his will.Those interested in its probate were compelled under the probate laws of New York to go into court, and, on notice to all heirs at law and next of kin, to show, prima facie, that the testator was of sound disposing mind and not under restraint, etc., and each and every of the heirs at law and next of kin had the right to appear and file objections and contest.This contest, if made, involved delay, expense, and possibly unpleasant disclosures.I do not think it was necessary to allege the particular relationship of the plaintiff to the testator; in other words, I do not think that in a case like this it was necessary to state the names of the brothers and sisters of the testator and the names of their children and show by such prolixity and precision of pleading that plaintiff was one of the heirs at law and next of kin to the testator.I do not think the allegation made is a mere conclusion, but the allegation of an issuable fact.

The failure to state to the defendant that the proposed contest was based on 'undue influence,' or would be, is not, in my judgment, fatal to the agreement to pay a sum of money as a consideration for not filing objections and contesting the will.The right to file objections and contest existed, whether or not the plaintiff had just and legal grounds on which to base the contest.It was a benefit to the defendant here, the other party to the alleged agreement, that no contest be made.It avoided delay, and the exploitation in court by evidence, or at least by the filing of allegations of 'influence' in making the will used by the defendant of facts showing possible mental weakness of the testator and the exercise of influence by the defendant on the testator, and possibly by his friends and others, not pleasant to have divulged.A contest was imminent and threatened, and the defendant, the executor named in such will and also a principal legatee, had the right to prevent it if he could by the payment of money, or an agreement to pay money, in case the plaintiff would forego and abandon his right to contest and allow the will to go to probate without question.This the complaint alleges the defendant did because of and relying on the agreement of the defendant to pay money.That is, the complaint alleges full performance by the plaintiff, the forbearance and abandonment of his legal right to contest.

In New York the legality of an agreement to pay money for the forbearance of the right to contest a will which the forbearing party has the legal right to contest is well settled.Seaman v. Seaman,12 Wend. (N.Y.) 382;Palmer v. North,35 Barb.(N.Y.) 282;Clark v. Lyons,38 Misc.Rep. 516, 77 N.Y.Supp. 967;Rector v. Teed,120 N.Y. 583, 24 N.E. 1014.

In the last-mentioned case the Court of Appeals said: 'The withdrawal of the objections to probate of the will, therefore, at the special request of the defendant, was the forbearance of a legal right and constituted a consideration sufficient to support a promise by him, even if he was to receive no benefit whatever.Whether he would have succeeded in the litigation, as was said in the Seaman Case, is not the test.* * * It is enough that he yielded to his adversaries the right he possessed to contest the will.That he has done, and the compromise itself proves prima facie an acknowledgment by the defendant that there was color for his objection.The court will not ask which party would have succeeded, for that would involve the trial of the issue that was compromised and the object of the law in encouraging compromises would thus be defeated.The consideration did not rest upon any advantage to the defendant, but upon the abandonment by Thomas Wright of his position as a contestant.By discontinuing his effort to overthrow the will, he relinquished a right secured to him by law and lost his chance of inheriting the estate.He did this at the request of the defendant who promised to pay for it.'

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