Warner v. Warner

• Decision Date: 14 October 1938
• Citation: 124 Conn. 625,1 A.2d 911
• Court: Connecticut Supreme Court
• Parties: WARNER v. WARNER et al.

1 A.2d 911

124 Conn. 625

WARNER v. WARNER et al.

Supreme Court of Errors of Connecticut.

October 14, 1938

Appeal from Superior Court, Fairfield County; Edward J. Quinlan Judge.

Suit by Flora Warner against DeVer C. Warner and others to cancel an agreement in which certain property was conveyed in return for a promise not to contest the probate of a will and for a reconveyance of the property. From a judgment for defendants plaintiff appeals.

New trial ordered.

Hugh M. Alcorn, Howard W. Alcorn, Harold E Mitchell, and Henry P. Bakewell, all of Hartford, for appellant.

William H. Comley and William Reeves, both of Bridgeport, for appellees named defendant et al.

Jonathan Grout, of Bridgeport, for appellee defendant Bridgeport-City Trust Co., executor and trustee.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS, JJ.

HINMAN, Judge.

The plaintiff is the widow of DeVer H. Warner late of Fairfield, they having been married November 23d, 1931, and the defendants DeVer H. Warner, Bradford G. Warner and Margaret W. Field are his children by a former marriage. Prior to their marriage Mr. Warner and the plaintiff had entered into an ante nuptial agreement by which, if they should marry, each relinquished any claim to any statutory share in the estate of the other, but providing that either might devise or bequeath to the other by will any portion of his or her estate. Mr. Warner died September 23d, 1934. On October 3d, 1934, his last will, executed May 15th, 1934, was presented for probate. It bequeaths to the plaintiff all of his personal effects, $25,000 in cash payable as soon as possible after the qualification of the executor, devised to her the Burr Homestead in which they had resided, and directed that there be set up a trust fund of $550,000 from which she should receive the income during her life or so long as she remained unmarried, with a further provision that if the income should be less than $20,000 annually the trustee should make up the deficiency out of principal. The remainder was bequeathed and devised to the testator's three children, above mentioned, in equal shares, including all the testator's rights and interest in a trust fund provided for in the will of his father, I. DeVer Warner, for Eva Follette Warner, and in his father's estate. The defendant The Bridgeport-City Trust Company was named as executor.

Thereafter and before hearing on the admission of the will to probate, as a result of conferences between the plaintiff, the Warner children and attorneys acting in their behalf, respectively, an agreement was entered into between them, dated November 13th, 1934, which contained the following provisions: That the Warner children ‘ waive and release any grounds of objection which they have or might have’ to the probate of the will and consent that it be admitted to probate; that upon the probate of the will the executor may at once pay to Mrs. Warner the $25,000 bequeathed her by the will, and $5000 to her attorney as counsel fees, may allow and pay her claim upon two notes given to her by her husband, one for $50,000 and one for $25,000, with interest, and may release and discharge her from all claims against her by reason of any payments appearing as having been made by her husband to or for her or on her account; that the executor may pay to her income up to the amount of $13,000 per annum pending the setting up of the trust created by the will for her benefit and thereafter the trustee may pay to her income from the principal of the trust, and make up any deficiency from principal so as to secure to her the full payment of $13,000 per annum; that she execute and deliver a quitclaim deed to the Warner children of an undivided one-half interest in the Burr Homestead property with a reservation to herself of the right to occupy it, an agreement to save the estate harmless from any claim pertaining to certain mortgages on real estate owned by her, and an instrument assigning to the Warner children all income in excess of $13,000 from the estate directed by the will to be paid to her pending the setting up of the trust for her benefit and thereafter arising from the trust. These instruments were executed by her, and the will was admitted to probate without opposition.

The plaintiff alleged in the first count of her complaint that her execution of the agreement and other papers was induced by representations of the attorneys for the children that the total estate of the decedent would be insufficient to yield the annual income of $20,000 provided for her by the will, that the amount of the trust fund provided for her would exceed the total assets of the estate, leaving nothing available for the children during the continuance of the trust, that they were in immediate need of money, and that they would contest the admission of the will to probate on the ground of undue influence. The first count alleged, further, that the representations were untrue and that her agreements were procured by misrepresentations and duress and thereby the Warner children were justly enriched at the expense of the plaintiff. The second count alleged that the plaintiff executed all of the instruments under mistake and that she received no consideration therefor. The prayers for relief were that the instruments be declared void and cancelled, and that a reconveyance to the plaintiff of the real estate be directed. As it is regarding the last mentioned issue, lack of consideration, that the record develops what we are constrained to find reversible error, we confine any extended discussion thereto.

In the course of the trial the plaintiff proffered evidence, which the court excluded, the declared purpose of which was as tending to prove that there was no ground for a reasonable belief by the defendants that the provisions for her in the will were obtained by undue influence. She also made ‘ claims of law’, which were inferentially overruled, that there was no reasonable belief on the part of the Warner children or their attorneys that the plaintiff had exercised undue influence upon the testator, and that there was no bona fide intention on their part to contest the will upon that or any other ground. Error is assigned as to these rulings, also as to the conclusion that ‘ there was ample consideration to support the settlement made by the plaintiff.’ The plaintiff also requested a finding that there was no reasonable basis for a claim that Mr. Warner had been unduly influenced by the plaintiff, but beyond the declared intention to contest the will on that ground there are no facts found which appear to be addressed to the existence of grounds for such opposition or otherwise to the good faith of that intention. Indeed, the finding includes a statement that at the time the will and other wills which preceded it were executed the attorney (Mr. Day) who drew them and who also was, with Mr. Marsh, acting for the children in the present matter, ‘ had no reason to believe and did not believe that any of said wills were procured by undue influence.’ There is no finding, direct or indirect, that a contest was intended in good faith and on reasonable grounds. In is evident, therefore, that the rule adopted by the trial court was that forbearance of the right to contest a will which the forbearing party has the legal right to contest is sufficient to constitute consideration for such an agreement as is here involved, irrespective not only of whether or not he could succeed but also of whether or not there were reasonable grounds for such a contest or whether or not he had reason to so believe in good faith. In other words, as is one of the defendants' contentions, that forbearance to contest was the abandonment of a legal right and a sufficient consideration for the agreement. Sheppey v. Stevens, C.C., 185 F. 147, 150; Seaman v. Seaman, 12 Wend., N.Y., 381, 382; LaRocque v. Keigher, 219 Ill.App. 74, 76; Fairfax State Savings Bank v. Coligan, 211 Iowa 670, 676, 234 N.W. 537; note, 25 L.R.A.N.S., p. 302; 12 C.J. p. 327.

However, the rule supported by the great weight of authority and in our opinion the better one is that in order to furnish a consideration for a compromisc agreement the contest must be instituted or intended in good faith and based upon reasonable grounds for inducing a belief that it is sustainable. ‘ With no basis in fact for a contest, and no reasonable ground for believing that a contest might rightfully be instituted and maintained, the agreement to refrain from doing so furnishes * * * no sufficient consideration for the promise * * *.’ Montgomery v. Grenier, 117 Minn. 416, 420, 136 N.W. 9, 11; Hardin's Adm'rs v. Hardin, 201 Ky. 310, 312, 256 S.W. 417, 38 A.L.R. 756; 12 Am.Jur., Contracts, §§ 85, 86, 87. The settlement by compromise of will contests and family disputes, being calculated to avert contentions, adjust doubtful rights, contribute to peace and harmony, protect the honor of the family, and avoid litigation, is not in contravention of public policy, and, when fairly arrived at, is favored both in law and in equity. Cummings v. Weaver, 114 Conn. 325, 331, 158 A. 812; Nichols v. Nichols, 79 Conn. 644, 655, 66 A. 161; Hurlbut v. Phelps, 30 Conn. 42, 50; Leach v. Fobes, 11 Gray 506,77 Mass. 506, 509,71 Am.Dec. 732; Barrett v. Carden, 65 Vt. 431, 435, 26 A. 530,36 Am.St.Rep. 876; LaRocque v. Keigher, supra, page 76, note 38 A.L.R. 742; 11 Am.Jur., p. 253; 12 C.J., p. 362. ‘ It is well settled that in equity the termination of family controversies affords a consideration which is sufficient to support a contract made for such purpose. * * * In order to render valid the compromise agreement, it is not essential that the matter should be really in doubt; but it is sufficient if ...