
    The Rector, etc., of St. Mark’s Church, in the town of New Castle, Resp’t, v. Charles G. Teed, App’lt.
    
      (Court of Appeals, Second Division,
    
    
      Filed June 24, 1890.)
    
    Contract—Consideration—Withdrawal of objections to probate of WILL.
    The withdrawal of objections to the probate of a will, at the special request of defendant, by one who would have inherited the entire estate if he had succeeded in his effort to defeat its probate, is the forbearance of a legal right and constitutes a consideration sufficient to support a promise made to such person by defendant to pay a sum of money to plaintiff, a third party.
    (Potter, J., dissents.)
    Appeal from an order of the general term of the supreme court in the second judicial department, reversing a judgment entered upon the decision of the court at special term.
    Action on a written instrument whereby the defendant promised to pay to the plaintiff, a religious corporation, the sum of $500.
    The answer alleged that said promise to pay was made without any consideration, good, valuable or otherwise, and that it is of no force or effect.
    Upon the trial it appeared that on February 1, 1875, one Lewis T. Wright died leaving a last will and testament, which in due time was presented for probate to the surrogate of the proper county, by the defendant, who. was the -executor named therein. Objections to the probate of the will were filed by Thomas Wright, the only brother, heir at law and next of kin' of the decedent On the- 14th of April, 1875, while the issue was on trial, the defendant, desiring that the contest should be withdrawn, made an arrangement with Thomas Wright whereby the latter agreed to withdraw his opposition to the' probate of the will provided the former would pay the plaintiff the sum of $500, “in the manner, at the time, on the conditions and for the purpose expressed in the undertaking or obligation hereinafter set forth.” The defendant agreed to and accepted said terms of compromise and thereupon executed and delivered the following instrument, viz.:
    “ For value received, I hereby promise to pay to Saint Mark’s Church, New Castle, Westchester county, the sum of five hundred dollars. It is understood that said church will appropriate the interest of said money to the improvement, adornment and care-taking of the church yard of said church; but the payment thereof shall not be exacted till the decease of Thomas Wright It is further understood that upon the execution and delivery by the residuary legatees named in the will of Lewis Wright of a written agreement or a sufficient promise to bind them instead of the undersigned to the above, then this writing shall be destroyed or delivered to the undersigned.
    Chas, G-. Teed.”
    In presence of
    Lewis C. Pratt.
    Dated April 14, 1875.
    In consideration of the execution and delivery of this agreement by the. defendant, said Thomas Wright withdrew his objections to the probate of the will, which was immediately admitted to probate and letters testamentary were issued to the defendant thereon. Neither the plaintiff nor the defendant had any interest in the estate of said decedent, either through the will or otherwise, but one ground of objection to the probate was that the testator had agreed to leave $500 to the plaintiff. The legatees were relatives of the" defendant and on their account he desired that the contest should be abandoned.
    Said instrument was duly delivered to the plaintiff, and it has •ever since been the lawful owner and holder thereof. Thomas Wright died September 20, 1882, and said agreement has never been complied with by the residuary legatees, nor performed by the defendant.
    The trial judge after finding the foregoing facts in substance found as a conclusion of law that the complaint should be dismissed with costs.
    
      William H. Hobertson, for app’lt; Walter Edwards, for resp’t
   Yann, J.

The question presented for decision by this appeal is whether the instrument upon which the action was brought is supported by a consideration that the law recognizes as sufficient. “A valuable consideration may consist of some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.” 3 Am. & Eng. Cyclopedia of Law, 831; Currie v. Misa, L. R., 10 Ex., 162; Chitty on Contracts, 9th Am. ed., 29 ; 2 Kent’s Com., 465.

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 injury may consist of a compromise of a disputed claim 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.

Thomas Wright, as the sole heir-at-law and next of kin of the decedent, would have inherited the entire estate if he had succeeded in his effort to defeat the probate of the will. He was, therefore, “ particularly interested in setting aside the will,” within the meaning of that phrase, as used in the case of Seaman v. Seaman, 12 Wend., 381, which we regard as analogous to this, and which has been repeatedly followed. Palmer v. North, 35 Barb., 293; Bedell v. Bedell, 3 Hun, 583; Hall v. Richardson, 22 id,, 447.

It will be presumed that the testator left assets of some value, as the evidence tended to show that there was property, although not enough to pay the legacies, and the trial court mentioned “ the property ” and “the estate” of Lewis T. Wright in the findings. Moreover, as the agreement recites a consideration, the burden of proof was on the defendant to show that there was none, and if that depended upon the allegation that the testator left no property, the burden extended to proof of that proposition also.

The withdrawal of the objections to the probate of the will, therefore, at the special request of the defendant, was the forbearance of a legal right and constituted a consideration sufficient to support a promise by him, even if he was to receive no benefit whatever. “ Whether he would have succeeded in the litigation,” as was said in the Seaman case, “ is not the test. * * * 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 defendant that there was color for his objection.” (P. 381.) The court will not ask “ which party would have succeeded,” for that would involve the trial of the issue that was compromised, and the object of the law in encouraging compromises would thus be defeated.

The consideration did not rest upon any advantage to the defendant, but upon the abandonment of Thomas Wright of his position as a contestant. By discontinuing his effort to overthrow the will, he relinquished a right secured to him by law and lost his chance of inheriting the estate. He did this at the request of the defendant, who promised to pay for it. If the form of the promise had been to pay-directly to Thomas Wright, no reason is perceived why it could not have been enforced. As the arrangement was made with him, and the consideration was furnished by him, the fact that the money was made payable by his direction to the plaintiff does not render the promise void. The plaintiff became his appointee, and upon receiving from him the written agreement, or evidence of the promise, it became his donee, and thus privity was established between the parties to the action. This is not the case of a mere stranger, who attempts to intervene and claim the benefit of a contract to which he is not a party, as in many of the authorities relied on by the appellant, because the promise was made directly to the plaintiff, and there was a clear intention on the part of the person furnishing the consideration to secure a benefit to the plaintiff.

If the sum in question had been made payable to Thomas Wright, he could have given the claim to the plaintiff, whose title would thus have been perfect, and why could he not make the gift by causing the promise to be made directly to the plaintiff ? The intention of the parties should not be defeated by releasing the defendant from his promise after he had received the consideration therefor, simply on account of the form of the transaction, which violates no statute,- nor any rule of public policy.

If A. sells a horse to B. for $100, and B. gives in payment therefor a note for that amount, drawn payable to C. at A.’s request, and A. delivers the note to C., the latter can enforce it against the maker. The case supposed differs in no essential particular from that under consideration. As recently held by this court, after a careful review of the authorities, a party for whose benefit a promise is made may sue in assumpsit thereon, even if the consideration therefor arose between the promisor and a third person. Todd v. Weber, 95 N. Y., 181, 194.

Without elaborating our reasons, we think that the order appealed from should be affirmed, and that judgment absolute should be rendered against the defendant, with costs.

All concur, except Potter, J., dissenting, and Haight, J., absent. 
      
       Affirming 8 N. Y. State Rep., 841.
     