Seaman v. Seaman

By the Court, Nelson, J.

The only important question arising upon the demurrer in this case, is, whether a sufficient consideration appears in the declaration to sustain the as-sumpsit of the defendants. If the declaration distinctly shows that the plaintiff would have derived a benefit resulting from the avoidance of the will of his father, I think there can be no doubt he has suffered damage or detriment, though the defendants have not received a benefit sufficient to create a good consideration. He had filed a caveat with the surrogate, and was entitled thereby to contest the validity of the will in due form of law. 1 R. L. 446, § 9. Laws of 1823, p. 63, § 3. This right, secured to him by law, he gave up in consideration of the agreement upon which the suit is brought. Whether he would have succeeded in the litigation is not the test; if this were so, there would be no security nor any thing gained by compromising a doubtful or litigated claim by stipulation to be afterwards fulfilled ; for, then, to procure a fulfilment of it, the party would be obliged to show he gave up a right or claim which he could have enforced at law, and the old controversy must be litigated- over again. 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 defendants that there was color for his objections. The following cases contain principles applicable to this point: 3 Burr. 1673, per Yates. J.: Any damage to another,or suspension, or forbear- *383 anee of his right, is a foundation for an understanding, and will make it binding, though no actual benefit accrues to the party undertaking. If it be a departure from any right, it will be sufficient to graft a verbal promise upon — Wilmot,J. p. 1672: The compromise of a doubtful right is a sufficient foundation for an agreement. Newl. on Con. 78. 1 Atk. 10. 1 Ves. 450. Powell on Con. 356. Comyn on Con. p. 12, note 13, and cases. We can perceive nothing exceptionable in this agreement on the score of public policy, beyond that of settling any claim which a party has a right tó litigate in a court of law. The plaintiff had a perfect right to contest the will, or to compromise the difference. As a general rule, any right that may be litigated, may be settled by the parties. As, however, it does not sufficiently appear in the declaration that the plaintiff was particularly interested in setting aside the will of his father, and without this he could have no interest in contesting it before the surrogate, and of course lost nothing by the agreement, I think the demurrer well taken.

Judgment for defendants, leave to amend on payment of costs.