In re the Last Will & Testament of De Forest

The executors contend that under the provisions of section 2722 of the Code of-Civil Procedure -the surrogate was required to- dis*783miss the petition upon their answer. The petition alleged an agreement dated January: 14, 1898, by which the testatrix, for a .valuable consideration, agreed to pay forty-five dollars per month to Mary M. De Forest for her use, and the sum of twenty dollars per month for the use of her child, Eleanor E., the child to receive forty-five dollars per month after she became ten years of age; that she became ten years of age in January, 1905; that the testatrix died January 3, 1905, and up to her death had fulfilled the terms of the agreement, and paid the sums agreed; that while proceedings were . pending before the surrogate for the probate of said will and the appointment of a temporary administrator, an agreement was made by which the executors were to continue said payments; that the will has been admitted to probate, the executors have qualified and . ' the payments have been continued by them down to July 3, 1906, since which time jthey have refused to pay.

The verified answer denied, upon information and belief, that the agreement rested upon a valuable consideration, and alleged that it was made upon certain conditions to be kept by the said Mary M. De Forest, without the performance of which it was expressly understood that there was to be no liability to make the monthly payments, and that the will directed payment of said monthly installments, stating that such provision was made for the purpose of carrying out said agreement •; that when the executors made the agreement to continue such payments after the testatrix’s death, they. believed the will to be valid and had not seen the agreement and were not conversant with its contents, and did not know that the same had been rendered inoperative and that by reason of the said Mary'M. De Forest violating certain conditions which were a. condition precedent to such monthly payments, and that since the will was admitted to probate the petitioners had commenced an action seeking to have it adjudged that the will and codicil were void ■ for . the( reason that they were obtained by the fraud, coercion and undue influence of the said executors who are the residuary legatees; that said action is still pending; that since making the stipulation for the payment of said moneys the executors have examined the contract and have learned that the said Mary M. De Forest had violated certain conditions thereof, which were conditions precedent to the right to receive such monthly *784. payments, and that the executors intend to dispute the claim, and . denies upon information and belief that the same is a legal charge against the. estate :of the testatrix. The will and codicil is made a part of the answer, and wé may fairly assume that, the conditions. contained tin it with reference to the'.payment of said monthly installments are the same conditions mentioned in the • contract, which, contract was under seal. The only conditions mentioned in the will are that the said' Mary M. De Forest was to live and remain unmarried. The petition is verified by her then name, and . there is no allegation that she is married. We may, therefore, assume that she has remained Unmarried. That she' is alive is ■ proved by these proceedings.■ It is' difficult, therefore, to.see how . she has- violated any condition in the agreement to be performed by her. The will and codicil which give this large estate'to the two executors does not describe them as relatives, but.as friends and as cashiers of Certain banks, 'We may infer those are the only relations they held to the aged- testatrix. - The will and the probate proceedings are made part of the answer, and undoubtedly those proceedings ■ show clearly "the relationship of the petitioners to the testatrix, and the fact that they have brought an action to set aside the'will .as a fraud upon them, together with the records before, the surrogate, was clearly sufficient to establish that they as heirs at law and .next of kin were entitled to a part or all of this estate if the testatrix diéd intestate.' The codicil, which does not refer at all to the petitioners, or to the agreement with them, provides that if any persons -who might bé interested in'her estate as next of kin should contest the will that they should receive no benefits under it. The surrogate is left entirely in doubt as to what facts the executors have discovered tending 'to show that this agreement under which ' they had continued the payments for a long time has been violated . by the petitioners. Perhaps they refer to' the -attempt by the petitioners to contest the will of the'testatrix -and- claim the forfeiture op that account mentioned in the codicil. But . 'the forfeiture only purports to relate to benefits under the will and could not affect payments'under the contract,'

.The denial' in the. answer that the agreement was upon a valid Consideration at first seems-to have some force. - But the subsequent. allegation that the agreement was made upon conditions to be per*785formed by the petitioners shows that the agreement was executory upon both sides, and, therefore, the promise of one party would be a sufficient consideration for the promise of the other, and the fact that the agreement was executed under seal imports a consideration . and is not overcome- by a mere denial on information and belief after the executors had continued by agreement to make the payments .mentioned in the agreement.

There is an entire absence of statement of any fact tending to show that the executors have any reasonable defense to the claim of the petitioners. The surrogate was justified in'treating the answer as evasive- and considering it as showing an earnest desire not to pay rather than any facts justifying a defense to the action. Perhaps the réfusal to make the' monthly payments was considered one means, of defending the action to set aside the. will. Without a fuller statement of facts, when the will is attacked solely upon the ' ground that the executors themselves obtained it by fraud and undue influence, the surrogate could not well assume that the executors entertained a reasonable doubt about the validity of the will, and that they did not want to make the payments for fear that • the will might be set aside. Furthermore, if the will were set aside, the payments would be fully protected, because the petitioners would then share largely in the estate as heirs at law, so that the executors and the estate itself 'were taking no risk by making the - payments.

But it is alleged that the petition must be dismissed, as it does not appear that there is money applicable to the payment of the claim which may be applied without injuriously affecting the interests of others, as required by section 2722, above referred to. The surrogate holds a-peculiar position with reference to estates administered through his office, and in a sense every step before him'in the administration of an estate may be considered as one move in the one general proceeding for the administration of the estate. So that when the surrogate is called upon to act in the administration of an estate, the records of his office under his immediate charge are before him and cannot be entirely disregarded. We may assume - that an inventory of this estate was present before the surrogate. The executors, with full knowledge of the condition of this estate, *786had agreed to and from time to time continued the payments upon this claim, and when they discontinued them it was not Upon the ground of want of funds, but another reason is stated. After hav-ing'made such payments and treated the estate as sufficient for such payments, the surrogate was authorized to assume that the objections raised in the answer were the only objections relied upon by the executors and that the funds of the estate were sufficient so that ' these- payments might be continued as formerly' without prejudice • to the rights of any one.

The surrogate was right in treating ’the answer as not showing or'. . foreshadowing any defense to the plaintiffs’ claim, hut as seeking •merely to set up technical' allegations by which the payments, upon .a just claim could be "delayed perhaps to assist the. executors in. defending the action based upon allegations of their wrong. The decree .should be affirmed,, with costs. ". '

Decree unanimously affirmed, with costs.