Watkins v. Watkins , 24 Ga. 402 ( 1858 )

Lumpkin, J.

By the Court. delivering the opinion.

The case made by this bill is certainly not very strong: still we are disposed to hold it up for an answer, especially if it be amended so as to state more positively the grounds for .attacking the will of Samuel Watkins. True, the complainants do allege they were satisfied that the testator was old ,and imbecile, and had been unduly and fraudulently persuaded and influenced to make the will: and that they had ■come to the determination to contest the validity of the will; and made known their intention to the defendants, who, knowing the fact that the paper proven as the will of their common father was not his will, and that it,would be set aside upon a hearing, agreed to sell the property, or a portion of it, and divide the proceeds equally with complainants, provided they would forbear to caveat the will, and that by rear sons of said undertaking they did forbear to institute proceedings to vacate the will.

It is argued by counsel for the defendants in error, that complainants-have ample remedy at law by suing and recovering damages for a breach of the contract. It is apparent, however, that the redress at law is not so suitable or complete as in equity.

Again, it is contended that this is a nude pact; a promise without consideration. But the doctrine is, that an agreement to settle a doubtful right constitutes a valuable consideration to support a contract. This too was an agreement to settle a family controversy, and in Bailey vs. Wilson, (l Dev. £}' Batt. Eq. Rep. 182) it was held, Judge Gaston delivering the opinion of the Court, that if to prevent a contest about the probate of their father’s will, certain brothers execute articles of agreement among themselves, providing for a more equal distribution of their father’s estate, than that contained in his will, such agreement will not' be considered as voluntary and without consideration ; but will be enforced in equity as a fair family arrangement, independent of its being a compromise of doubtful rights. This case is very similar to the one at bar. The case of Stapleton vs. Stapleton, decided by Lord Hardwicke, proceeds upon the same principle, (l Atkins’ Rep. 10 and 11.)

[2.] As to its being an agreement concerning land, strickly this is not so j but it relates to a division of the proceeds of real estate, including personalty also. Besides, to say nothing of the expense and trouble incurred by one of the complainants, in coming in from Arkansas, to attend the sale and division, the complainants had executed fully the agreement on their part, by forbearing to file their caveat. It would be a fraud upon them not to compel its performance by the defendants. In Neale vs. Neale, (l Keen. 68,) the agreement was by parol, and related to land; still its execution was decreed.

Judgment reversed.