
    Daniel and Wife v. Maclins.
    Decided Jan. 7th, 1818.
    i. Compromise — Validity— Case at Bar. — A Widow, (being entitled, under the Will oí her husband, to make' a crop on his home plantation, in conj unction with one of his sons, and to a sufficiency ot corn and pork, with necessa'ry working utensils, for her support and that of her family, the ilrst year, on a plantation directed to be purchased for her,) agreed to give up, to two ol the persons named as executors, (one of whom only, with a third person, administered.) her part of the crop, then growing, upon condition that they should purchase as much corn and provisions, the ensuing winter, as herself and a friend of her’s should judge sufficient to settle her on the said plantation ; which was accordingly done. This was held a binding compromise of her right to the share of the crop.
    In assumpsit, by James Daniel, and Anne his wife, against John D. Maclin, and William W. Maclin, the declaration charged, that the defendants were indebted to the plaintiff Anne while sole, in the sum of $336 SO cents, for 4934 barrels of corn, (being the proportion of corn, belonging to the said Anne while sole, of a certain crop made, in pursuance of the last Will of her first husband William Maclin, upon the plantation whereon he resided at the time of his death,) which corn was by the defendants applied to their own use; and, being so indebted, they assumed, &c., in the usual form. Plea non assumpsit. *At the trial, the plaintiffs introduced testimony in support of their claim, and, among other things, the Will of William Maclin, whereby the testator directed that his executors should purchase a plantation for his widow, and furnish the same with a sufficient quantity of corn and pork, and necessarj* working utensils, for her support and that of her family the first year; and, also, that, until the said land should be purchased, she should continue to reside on the home plantation, and work her hands with those of his son William W. Maclin. It was admitted that, during the said year, when the said Anne and William W. Maclin worked their hands together on the said plantation, the said 4934 barrels of corn were made. It appeared that both the defendants, together with Joseph Wilkins and the said Anne, were named executors in the said Will; but one of them only, with the said Wilkins, administered. The defendants proved, by a witness, that the plaintiff Anne, in the fall of the year 1806, agreed with the defendants, to give up her proportion of the corn, then growing and making by her hands and those of William W. Maclin, if they would purchase as much corn and provisions, in the ensuing winter as herself and a Mr. James Lewis should judge sufficient, to settle her on the plantation which had been purchased agreeably to the said Will. They also proved that the corn last mentioned, was purchased for her by the defendants. It was admitted, that the said provisions were furnished agreeably to the contract stated by the witness; and that the defendants divided between them, and applied to their own use, the said 4934 barrels of corn.
    The plaintiffs demurred to the Evidence, and the Superior Court gave judgment for the defendants.
    Bouldin for the appellants. Under the circumstances of this case, the law raised an assumpsit, without proof of an express promise. The slightest appearance of contract will change the action of trover or trespass for taking goods, into assumpsit for their value, at the election of the plaintiff. The declaration charges a promise to pay for the corn of the plaintiff used by the defendants; and the question is, whether bjr law such contract ^results from the evidence. The proof is, that the plaintiff promised to give the defendants the corn, if they would give her what was already her own I they used her corn, and paid her only what they before were bound by the Will to pay. Does not the law imply a promise to pay the value of the property thus improperly received by them?
    Mrs. Maclin was not by law compelled, nor in conscience any way bound by her consent, to relinquish the 4934 barrels of corn, in consideration of the executors’ giving her the provisions, to which by the Will she was entitled. It was a mere naked agreement, which gave no right to the party claiming under it, and ought not to defeat the claims of the plaintiffs.
    May for the appellees.
    Wherever the presumption of a contract is expressly excluded, assumpsit will not lie. — Instead of a promise to pay for the 4934 barrels of corn, there was an express agreement between the parties, that it was not to be paid for. This agreement was binding on Mrs. Maclin; for William W. Maclin one of the defendants was not executor, and there might not have been assets if he had qualified. This was surely not nudum pactum. The contract was with him and the other defendant as individuals. They actually paid and advanced the “corn and provisions,” a broader word than “pork.” She gained another advantage by it: she was to have as much corn and other provisions, as she and her friend Lewis should judge sufficient. Besides, she was named in the Will as one of the Executors, and fully acquainted with all it’s provisions, 
    
    Bouldin in reply.
    This is a plain attempt on the part of the defendants to cheat the widow out of the corn. — They used it under a contract, and not tortiously. The question is, whether that contract may not, for purposes of justice, be extended a little, to imply a promise to pay in their property, instead of her own, which would be ridiculous and absurd.
    William W. Maclin was named an Executor in the Will. So far as he acted in this case, it was as Executor; — in his own wrong, if you please. His acting with his ^'brother who had qualified, does not make it the less nudum pactum. They did not in the slightest degree overstep the allowance by the Will, which is evidence in this cause.
    
      
       Bennett v. Francis, 2 Bos. and Pul. 553.
    
    
      
       Bilbie v. Lumley and others, 3 Bast 469.
    
   JUDGE ROANE

pronounced the Court’s opinion.

The Court is of opinion, that, although the appellants may have been entitled to the corn, in the declaration mentioned, and for the value of which this action was brought, under the true construction of the Will of W. Maclin deceased, yet the female appellant having compromised her rights accruing under the said Will, by relinquishing this claim, and that with a full knowledge of all the circumstances, it was not competent to the appellants to set up the said claim thereafter; and that the law upon the demurrer to evidence is with the appellees. On this ground, the judgment is affirmed.  