
    The Rector, Churchwardens and Vestrymen of St. Mark’s Church, in the Town of Newcastle, Appl’ts, v. Charles G. Teed, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 9,1887.)
    
    Contract—Consideration—What sufficient—Who can enforce.
    One Wright, who was the sole heir-at-law of a certain testator filed objections to the will of said testator when it was offered for probate by the defendant, who was the executor named in said will. The said defendant made a written agreement to pay the plaintiff herein, a certain amount in consideration of the said Wright’s withdrawing his objections to the probate of the will. Held, that the agreement was based upon a good consideration between the parties thereto. That it could be enforced by the plaintiff for whose benefit it was made.
    
      Appeal from a judgment rendered by Dykman, J., without a jury.
    The action was brought upon a written promise or undertaking to pay to the plaintiff $500.
    The defense was that the undertaking was without consideration and void.
    The facts were undisputed and were found by the court as follows:
    The defendant was the executor of the will of Lewis T. Wright, who died in or about 1875, and as such executor he propounded said will for probate before the surrogate of Westchester county.
    Plaintiff is a religious corporation duly organized and existing under the laws of New York, and is the payee in the written undertaking or promise, sued upon in this action.
    Thomas Wright, the only brother, heir-at-law and next of kin of said testator, had filed objections to the probate of said will. The legatees under said will were near relatives of the defendant, and for their sake, defendant was anxious that the contest should be withdrawn and the will .admitted to probate. Thomas Wright was a churchwarden of the plaintiff and he insisted that the testator had agreed to give $500 to the plaintiff. On April 14, 1875, the said contest respecting Lewis Wright’s will was on trial before the surrogate of Westchester county, the parties being present with their counsel; the defendant desired that the contest be withdrawn, and a compromise was arranged by which Thomas Wright agreed to withdraw his opposition to the probate of the will upon condition that the defendant would pay to the plaintiff $500, in the manner, at the time, on the condition and for the purpose expressed in the obligation sued upon; to this the defendant agreed and immediately executed and delivered his written obligation upon which this suit wss brought. Thereupon Thomas Wright withdrew his opposition, the will was immediately admitted to probate and letters testamentary thereon were issued to defendant. The written undertaking of defendant passed and delivered to the plaintiff, who now owns and holds it. Thomas Wright died September 20, 1882, and no agreement or instrument of any kind had been executed by the legatees of Lewis Wright to bind them to the performance of said agreement instead of the defendant.
    
      Edwards & Odell, for app’lt; Close & Robertson, for resp’t.
   Barnard, P. J.

The question so often made of a privity of contract between the promisor and the promisee is absent from this case. The promise is made by the defendant to the plaintiff. Even if the promise had been made to Wright for the benefit of the plaintiff, an action would lie upon the promise, if founded upon a good consideration between the parties to the promise. Todd v. Weber et al., Executors, 95 N. Y., 181.

This case shows a promise made directly to the plaintiff upon a consideration moving from Wright to Teed. Wright was the sole heir-at-law and next of kin of Lewis Wright, his brother. This brother had made a will giving legacies to a greater extent than could be paid out of the assets of the estate. The heir-at-law filed objections to the will, and among them that his deceased brother had agreed to give the church $500 to keep the burial grounds of the church in order. Teed was the executor of the will and offered it for probate. The parties benefited by the will were some of these relatives of the deceased. Under this state of facts the executor and proponent of the will made a compromise. The consideration was good. If the promise had been made by the legatee to the contestant, the consideration would have been good. Palmer v. North, 35 Barb., 282.

This would stand upon the value of the withdrawal of the objection to the probate.

If Wright, the contestant, could furnish a good consideration to the legatees, he could to a person who stood in the relation of executor and personally made a promise to Wright, based upon the same consideration.

The judgment should, therefore, be reversed, and a new trial granted, costs to abide event.

Dykman, J., not sitting.

Pratt, J., concurs in following opinion:

Pratt, J.

It does not appear that Thomas Wright owed any debt or duty, or was under any obligation to the plaintiffs.

So that had the promise been made to Wright for plaintiff’s benefit, the case would fall directly within the language of Allen, J., in 69 N. Y., 283: “ To give a third party, who may derive a benefit from a promise, an action, there must be * * * some privity between the promisee and the party to be benefited.” But in the case at bar the promise was made directly to the plaintiffs.

The fact that the consideration moved from Wright is not important. Take the case where A. lends money and receives a bond payable to B.; can it be doubted that B. can enforce the security.

Wright was next of kin and heir-at-law. He, therefore, had abundant motive to desire to defeat probate of the will, and the withdrawal of the objections was an adequate consideration which moved from him to defendant. It is not needful to the validity of the ■ contract that the consideration should be beneficial to defendant. Yet we think his commissions as executor supply an abundant consideration, which may also be said of the benefit to his relatives, the legatees.

It follows that the plaintiffs were entitled to recover, and. the judgment in favor of defendants should be reversed and new trial ordered, with costs to abide the event.  