Rector, Churchwardens & Vestrymen of St. Mark's Church v. Teed , 8 N.Y. St. Rep. 841 ( 1887 )

Barnard, P. J.:

The question so often made of a priority 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, 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, 1ns 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 them, 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 liad, 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.

Pratt, J.:

It does not appear that Thomas Wright owed any debt or duty, or was under any obligation to the plaintiff. So that had the promise been made to Wright, for plaintiffs’ benefit, the case would fall directly within the language of Allen, J., in Vrooman v. Turner, 69 New York, 283: “To give a third party, who may derive a benefit from the performance of the promise, an action there must be * * * some privity between the two the promisee and the party to be benefited.” But in the case at bar the promise was made directly to the plaintiff.

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. lie, therefore, had abundant motive to desire to defeat probate of the will, and the withdrawal of his 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 plaintiff was entitled to recover, and the judgment in favor of defendants should be reversed and new trial ordered, with costs to abide the event.

Dykman, J., not sitting.

Judgment reversed and new trial granted, costs to abide event.