Lies v. Stub , 6 Watts 48 ( 1837 )

The opinion of the Comt was delivered by

Gibson, O. J.

The exception to the witness must prevail. Not only was his possession endangered by the action, but he was, in all other respects, in the ordinary predicament of a defendant of record. It is unavailing to say, his share of the estate would be increased by sustaining the plaintiff’s title. No balancing of advantages could comiterbalance his position as a party maintaining the issue by his own testimony.

The will is obscure, and would afford no encouragement to execute it according to the letter. The testator’s main intent was, to keep the estate in his family, by offering it to his sons at a fixed price, according to the order of primogeniture; the first two being designated by name, but in a way to prevent it from being parted, so as to accommodate more than two, except by common consent; and with further provision, that if the two should reject it, one or two of the younger sons might accept it, regard being had, as I take it, to the same order of choice. There was no intent that particular sons should take in couples, or not at all; or that any of them should, in no event, take more than a moiety. By naming conjunctively those who were first to be called upon for their choice, the testator could have had no rational motive to make them partners in the transaction; and none such ought to be imputed to him. John had, therefore, an indisputable right to take the half in the first place; and the whole, if neither Jacob, nor any other brother, were willing to take a moiety along with him; he consequently became a party to the general arrangement in ignorance of his right. But though equity generally relieves against plain mistake, it interferes not, for misconception alone, to overturn an agreement made to prevent a domestic feud or family dishonour. These agreements partake largely, in then nature, of the compromise of a doubtful right, which is a sufficient consideration. And it is certainly more reasonable, that the consequences of a party’s mistake be borne by him, than that the peace of those who did not contribute to produce it, should be disturbed to remedy it. In Frank v. Frank, 1 Ca. in Ch. 84, an agreement, that devised lands should be enjoyed according to the will, was enforced betwixt an elder brother devisee of copyhold, which did not pass because there had been no surrender to the use of the will; and a younger brother devisee of entailed lands, which did not pass, because there had been no recovery; and this too, though the elder was entitled to the whole as heir at law, and the agreement was induced by a groundless assertion of the younger, that a recovery had in fact been suffered. That case was not less pregnant than is the present, with misconception, and even suspicion of fraud. But the agreement was doubtless thought to have been fairly obtained; for though equity refuses to rescind a family arrangement for mistakes merely, it deals as severely with misrepresentation in the procurement of it, as with fraud in any other transaction. By the principles of that case, the controversy in this is reduced to the single question of practice upon the intellects of John; of which, the only evidence in the cause, is the testimony of the defendant William. But to say nothing of his competency already disposed of, it is by no means clear that the conduct of Michael, the only party implicated, was unfair. Why might he not sincerely believe John’s pretension to be unfounded? They had referred the dispute to the arbitration of counsel, whose opinion accorded with that which Michael attempted to impress; and if he actually believed that he himself was entitled, or that the proposed arrangement was calculated to promote the general interest without any particular sacrifice, it is not easy to see why he might not fairly attempt to prevent others from encouraging John to stand in the way of what he might think to be John’s interest, as well as that of the family. I pretend not to say that such was the truth, but the acts of Michael are susceptible of this interpretation, and fraud is not to be imputed to him without proof of it. This part of the case, therefore, may have been unduly pressed; but as the direction ha this particular is not perhaps a legitimate subject of review, and as the cause is to go to another jury on different evidence, we intimate no more than the principles that are to rule it in point of law.

Judgment reversed, and a venire facias de novo awarded.