Wolfe v. Breman

• Citation: 26 S.E.2d 633,69 Ga.App. 813
• Decision Date: 05 July 1943
• Docket Number: 29939.
• Parties: WOLFE v. BREMAN.
• Court: Georgia Court of Appeals

26 S.E.2d 633

69 Ga.App. 813

WOLFE v. BREMAN.

No. 29939.

Court of Appeals of Georgia, Division No. 1.

July 5, 1943

Rehearing Granted July 22, 1943.

Judgment Adhered to July 31, 1943.

Syllabus by the Court. [Copyrighted Material Omitted]

The petition of Mrs. Breman alleged that her husband died leaving a will, one of the provisions of which (item 2 of the codicil) was as follows: "So long as my wife survives me and remains a widow it is my will and desire that she have the benefit of the installments arising from the conversion of $30,000 of my life insurance into 20 installments certain." She also alleged that she was orally advised by the executors of said will that they were unable to convert the $30,000 of the testator's life insurance in accordance with the provisions of Item 2 of the codicil to said will, and in lieu thereof intended to purchase an annuity, and that she was at that time advised by her counsel that the purchase of an annuity, not being in compliance with the terms of said will, could be blocked or prevented by her should she so desire; "that if any such annuity was to be purchased it was the desire of petitioner that the same be obtained and purchased in and from the Mutual Life Insurance Company of New York with whom petitioner had been associated for over 16 years; that said defendant stated to petitioner that he was most desirous that said annuity be purchased from his Company by and through his agency's office, in order that his office might thereby become qualified to attend the national convention of said company that the purchase of said annuity in said company through defendant's office would bring their required quota of sale to the amount necessary to warrant the qualification and invitation to said convention; that defendant further stated that if petitioner would not object or oppose the purchase of said annuity from said company through defendant's agency, and if petitioner would not oppose, block nor prevent the purchase of said annuity, and would forego her insistence or desire that said annuity be purchased from the Mutual Life Insurance Company of New York, then, and in consideration of same, defendant would pay to petitioner the sum of $600; that relying upon said promise to pay petitioner said sum of money, petitioner did not attempt to block, prevent or in any manner interfere with the purchase of said annuity by the executors, as was her right to do, nor did petitioner oppose the purchase of said annuity from the Union Central Life Insurance Company through defendant's agency, nor did she insist that such annuity be purchased from the Mutual Life Insurance Company of New York, as was her foremost desire that since the original petition of the executors for direction was filed, Mrs. Blanche S. Breman, the widow of Max L. Breman, deceased, has filed an answer and cross-bill in said cause, and her contentions are more fully set out in the cross-bill which is a part of the record in this case; that said annuity contract was finally and fully approved by a court order and decree signed in open court, on March 30, 1942, by A. L. Etheridge, Judge of the Fulton superior court, and the same being done at the instance of the executors of the estate of Max L. Breman, and the same being in settlement of certain claims and misunderstandings between petitioner [the widow] and said executors, and that Judge Etheridge approved the settlement and the following is quoted from his court order and decree: 'It is found, considered, ordered, adjudged and decreed: (1) That the executors are authorized and empowered to make the compromise and settlement set forth by the amendment to their petition. (2) That said settlement and compromise has been agreed upon by the executors and the said Mrs. Blanche S. Breman and her counsel, subject to the approval of the court; and it is hereby approved;' that one of the principal issues raised in the cross-bill referred to in the amendment was whether or not the executors were authorized to purchase the annuity in question, this issue being presented by petitioner's allegation in her cross-bill '(10) Cross-petitioner is informed that the monthly payment of $137.60 is not the result of a conversion of $30,000 of insurance but results from the purchase of an annuity. Cross-petitioner says that she is entitled to receive of the proceeds of said life insurance the amount that would yield the annual payment contemplated had $30,000 of the insurance been converted in accordance with Item 2 of the codicil.' In their answer to petitioner's cross-bill the executors denied this allegation. Their answer, being a general denial, is on record in the superior court clerk's office. Petitioner further alleges that the final settlement and compromise of her claim against the executors included her oral assent to continue receiving and accepting the monthly payments of $137.60 resulting from the purchase of said annuity, and that this being a part of and included in the compromise and settlement, was therefore finally and fully approved by the court order heretofore set forth. Petitioner shows further that she has been and still is receiving and accepting said monthly payment of $137.60, and will continue to do so until her remarriage, or death, as provided for in said annuity, final settlement and compromise, and court order. That after the purchase of said annuity in said company through defendant's agency, defendant acknowledged his previous promise to pay petitioner the sum of $600, as aforesaid, by entering into a written agreement, duly executed and witnessed, providing for the payment thereof when said annuity was approved by a superior court order. This agreement was executed on the 1st day of May, 1941, and a copy thereof is hereto attached and marked Exhibit 'A', and reads as follows: 'When the annuity No. 1365543 payable to Blanche Stegerman Breman is finally and fully approved by a satisfactory court order I agree to make her a payment of six hundred dollars as a settlement at rate of one hundred per month of any and all amounts I may be due her."'

A. S. Grove, of Atlanta, for plaintiff in error.

MacDougald, Troutman & Arkwright and W. H. Schroder, all of Atlanta, for defendant in error.

MACINTYRE Judge.

1. The defendant contends that there was no consideration for his agreement to pay the plaintiff the $600 in question. "Slight consideration is sufficient to sustain a contract, and Courts of Law will not look closely into its adequacy. Forbearance to prosecute a legal claim, and the compromise of a doubtful right, are both sufficient considerations to support a contract." Austell v. Rice, 5 Ga. 472 (2) (3).

It is not essential that the person to whom the consideration moves should be benefited, provided the person from whom it moves is in a legal sense injured. The injuries may consist of a compromise of a disputed claim which is not necessarily a valid claim, but a compromise of a bona fide controversy (the good faith is generally a question for the jury), or forbearance to exercise a legal right; the alteration in position being regarded as a detriment that forms a consideration independent of the actual value of the right forborne. Hume v. Davison-Paxon Co. 57 Ga.App. 289, 292, 195 S.E. 318.

The widow, Mrs. Breman, alleges that the final settlement and compromise by which she withdrew her objections in her intervention, in which she contended that the annuity during her life, or so long as she remained a widow, was not in compliance with her husband's will that she was to have "installments arising from the conversion of $30,000 of life insurance into 20 installments certain," was done at the request of the defendant, and that she did not seek to have the executors purchase the annuity in the Mutual Life Insurance Company of New York, which she was very anxious for them to do because she had been associated with that company for over 16 years; that she did not oppose the executors purchasing from the defendant, as agent of the Union Central Life Insurance Company, which was, in so far as she was concerned, an annuity during her life or so long as she remained a widow. All of which was done at the request of the defendant.

She further alleged that said annuity was accordingly purchased from the Union Central Life Insurance Company through the defendant's agency. The defendant acknowledged in writing his previous promise to pay petitioner $600. All of this together, we think, was a forbearance of a legal right by the widow, and constituted a consideration to support the promise by him to pay the $600. Rector, etc., of St. Mark's Church v. Teed, 120 N.Y. 583, 24 N.E. 1014, 1015. The consideration consisted in the forbearance of the widow to exercise a legal right, or at least what she bona fide believed to be a legal right, to insist that the executors purchase for her the "20 installments certain," as directed in her husband's will and accept instead an annuity for life, or widowhood. And we might say that the alteration in position of the widow, by accepting as a compromise said annuity having in effect been alleged as a detriment, would form a consideration independent of the actual value of the right forborne. Rector, etc., of St. Mark's Church v. Teed, supra. Whether the widow would have succeeded in the litigation by having her intervention sustained is not the test. It is enough that she yielded the right she had to contest the right to receive from her husband's estate "the 20 installments certain" as directed in his will. The consideration, even if it did not rest upon any advantage to the defendant, but only upon the abandonment by the widow of her position as a contestant, would, nevertheless, be sufficient, for she had relinquished what s...