Patterson's Appeal , 19 W.N.C. 348 ( 1887 )

Opinion,

Mr. Justice Trunkey:

Sidney Connell’s will was probated on November 22, 1875. It contained a bequest and a devise to Minerva Colestock and a number of bequests and devises to other persons, the residue of the estate to J. M. Dushane. Some of the objects of the bounty of the testatrix were not of kin to her, others were of kin but not entitled to share in her estate in case of intestacy, and some who would be entitled as heirs and next of kin were not named in her will. The contest of the alleged will was successful.

A number of those interested in the result of the contest entered into an agreement, which, if not artistically drawn, is not void for uncertainty as to its meaning. No objection was made to its admission in evidence, and the auditor gave no reason for throwing it out of consideration other than that its validity was disputed.

The subscribers to the instrument mutually agree that if they succeed in their efforts to break the will, each one shall retain such portion of the estate as he or she may have received under the will, and only such portions of the estate shall be distributed to the subscribers as are not given by the will to the blood relations of the decedent, and each releases to each and every other all his or her right as aforesaid. It is declared in the instrument that it is made for good consideration, and the parties affixed their seals. The heirs of the decedent who are not parties are not affected by its covenants, and they are entitled to their respective shares in the estate, and to the remedies for recovery, provided by the intestate laws. The parties to the covenant could not prevent the partition and sale of the real estate, and the proper place for them to assert their covenant rights is in the distribution of the proceeds. Those who covenanted with Minerva Colestock that she should have the land devised to her in the will, and released to her their interest in the same, are not now entitled to take any of the money arising from sale of that land. They agreed that no distribution should, be made to them of any part of the estate given by the will to a blood relation. It was error to disregard the covenant as foreign to all questions arising in the distribution.

The appellees contend that the agreement, if valid at all, is only valid between the heirs of the decedent, and Minerva Colestock, not being an heir, has no right under the covenant. But she was a party interested in the contested will and became uninterested because of the agreement. The agreement is by and between the “ subscribers ; ” the word heirs relates to the subscribers ; a clause provides, relative to each one of said heirs who shall sign the paper, that if the will falls “ such said heirs ” shall take what is given them in the will, and the other portions of the will shall be given to the “ heirs aforesaid.” It is manifest that the word heirs is not used in its technical sense. By it, as shown by the context, the parties meant the subscribers to the agreement, both heirs at law and persons interested in the alleged will.

The letter of Sidney Jennison to Gilmore, in itself, is not sufficient to convey her interest to Miss Colestock.

Without proof of consideration, the contract signed by J. A. Williams, dated January 13,1876, is invalid. No evidence was given of the inducement, or of the attendant circumstances, showing consideration. On its face the paper is for the benefit of Minerva S. Patterson, late Colestock, and if made for good consideration it binds the maker.

Had not the auditor cast aside the agreement, he would not have put the costs of the second- audit on Minerva Patterson. That imposition of costs was right upon the adjudication. But if her claim be established the case will be different.

Decree reversed at the costs of appellees, and record remitted for further proceeding.