Bartol, J.,.
delivered the opinion of this Court.
The appellees were plaintiffs below, and brought this-suit upon an alleged promise made by the appellant to Mary, one of the plaintiffs, while she was sole, to pay her and each of'hef sisters $1,000 in addition to-the legacies bequeathed to them by their father’s will, in° consideration that they would forbear and desist from instituting legal proceedings to test the validity of the will, which they had determined to do.
The main question presented by the appeal is, whether in the appellees’ prayer, which was granted, there is a sufficient legal consideration stated to support the promise of the appellant.
The will of John Hartle, offered in evidence and incorporated in the prayer, shows that the testator devised to the defendant and his brother Frederick the farm on which the testator resided, containing 203 acres of land, together with all his real and personal estate, subject to the payment of certain pecuniary legacies to the widow and his son Jacob and the several daughters, and appointed the defendant sole executor.
[171]*171The hypothesis of the prayer is, that if the plaintiff was one of the daughters and heirs at law of John Hurtle, the testator, that she and her sisters were dissatisfied with the will and determined to take legal proceedings to test its validity, and to vacate the same, and the defendant, in consideration that she and her sisters would forbear and desist from instituting such legal proceedings, promised to pay to her and each of her sisters one thousand dollars in addition to the legacies given them by the will, and in consequence of such promise and undertaking of the defendant, the plaintiff and her sisters did desist and refrain from taking’ any legal proceedings in the premises, and the said will was then admitted to probate, and letters testamentary were granted thereon to the defendant; then a right of action hath accrued to the plaintiffs on and in respect of said promises of the defendant for the recovery of said sum of one thousand dollars.
The objection taken to this prayer is, that it does not affirmatively state that the testator left any assets after the payment of his debts, or show that the plaintiffs would have derived any l^nefit from setting the will aside, or that there was any sufficient or probable ground for impeaching its validity; and therefore it is contended that the promise of the defendant was without any legal or valid consideration to support it. It is well settled that where an action is brought upon a promise made in consideration of forbearance to sue, it must appear that there was some one in esse liable to be sued, and something in relation to which suit could be brought. Jones vs. Ashburnham, 4 East., 456. And it is also settled that if in such case it appear that there existed no probable ground upon which such suit could be maintained, the consideration of the promise fails and no action can be maintained thereon. Edwards vs. Baugh, 11 Mees. & W., 639 ; Wade vs. Simeon, 2 Man., G. & S., 548 ; (52 E. C. L. R., 546.) Those cases have been cited and relied on by the appel[172]*172lant as conclusive of this; hut it does not seem to us to fall within the same principle. The promise sued on here was not made in consideration of the forbearance by the plaintiffs to sue for the recovery from the defendant of a sum of money or any specific thing, hut was a promise or agreement for the compromise or settlement of a controversy in relation to a matter in which both parties were interested.
In Stoddard vs. Mix, 14 Con., 22, the rule of law is correctly stated thus : “ The mere forbearance of a claim or demand before suit brought, which is not in fact a legal demand, is not of itself a sufficient consideration to support a promise. But either the compromise of a doubtful claim, or the relinquishment of a pending suit, is a good consideration for a promise,” and for this are cited, Bidwell vs. Catton, Hob., 216 ; Longridge et al. vs. Dorville et al., 5 Barn. & Ald., 117 ; Thornton vs. Fairlie, 8 Taunt., 354 ; Union Bank of Georgetown vs. Geary, 5 Peters, 99 ; Pow. on Con., 346, 354 ; Chitty on Con. 9.
“ The prevention of litigation is a valid and sufficient consideration; for the law favors tl^ settlement of disputes.” Parsons on Con., 363. “To support a compromise it is sufficient that the parties entering into it thought, at the time, there was a bona fide question between them, though it may eventually turn out there was in fact no such question. Ex parte Lucy, &c., 21 E. L. & E. R., 199. The same principle was recognized hy the Supreme Court in Union Bank of Georgetown vs. Geary, 5 Peters, 98.
In Stapilton vs. Stapilton, 1 Atkyns, 10, Lord Hardwicke (referring to Cann vs. Cann, 1 Peere. Wm.’s, 727,) says, “it was laid down that an agreement entered into upon supposition of a-right, or of a. doubtful right; though it after .comes out that the right was on the other side, shall he binding,.-and the right shall not prevail against the agreement of the parties, for the right must always he on [173]*173one side or the other ; and, therefore, the compromise of a doubtful right is a sufficient foundation of an agreement.
We refer also to Smith vs. Smith, T. Raym., 203 ; Taylor vs. Patrick, 1 Bibb, 168 ; Fisher vs. May’s heirs, &c., 2 Bibb, 448 ; Brown vs. Sloan, 6 Watts, 421, in support of the same principle.
Applying this principle to the case before us, it follows that the promise and agreement of the defendant upon which this action was brought is supported by a valid legal consideration. It is not necessary that it should affirmatively appear that the plaintiffs would have been benefitted by setting the will aside, or that they could have succeeded in the attempt.
“It is a perfectly well settled rule that if a benefit accrues to him who makes the promise, or if any loss or disadvantage accrues to him to whom the promise is made, although without benefit to the promiser, in either case the consideration is sufficient to sustain an assumpsit.” Parsons on Con., 357.
Here, the plaintiff, as one of the heirs-at-law, had a legal right to caveat the will and test its validity, and the defendant had an interest in maintaining the will, both as devisee, and in respect to his office of executor thereby created.
This case is unlike Seaman vs. Seaman, 12 Wend., 381, and Busby vs. Conoway, 8 Md. Rep., 55. In those the declaration was held to be insufficient, because it did not appear from the averments that the consideration of the promise sued on was any loss or detriment to the plaintiff, or any benefit to the defendant. It was not averred that the testator left any assets, or that anything passed under the will. Here the declaration in the second, third and fourth counts avers that John Ilartle devised to the defendant real estate of great value, of which he died seized and possessed, and the fifth count avers that under [174]
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Bartol, J.,.
delivered the opinion of this Court.
The appellees were plaintiffs below, and brought this-suit upon an alleged promise made by the appellant to Mary, one of the plaintiffs, while she was sole, to pay her and each of'hef sisters $1,000 in addition to-the legacies bequeathed to them by their father’s will, in° consideration that they would forbear and desist from instituting legal proceedings to test the validity of the will, which they had determined to do.
The main question presented by the appeal is, whether in the appellees’ prayer, which was granted, there is a sufficient legal consideration stated to support the promise of the appellant.
The will of John Hartle, offered in evidence and incorporated in the prayer, shows that the testator devised to the defendant and his brother Frederick the farm on which the testator resided, containing 203 acres of land, together with all his real and personal estate, subject to the payment of certain pecuniary legacies to the widow and his son Jacob and the several daughters, and appointed the defendant sole executor.
[171]*171The hypothesis of the prayer is, that if the plaintiff was one of the daughters and heirs at law of John Hurtle, the testator, that she and her sisters were dissatisfied with the will and determined to take legal proceedings to test its validity, and to vacate the same, and the defendant, in consideration that she and her sisters would forbear and desist from instituting such legal proceedings, promised to pay to her and each of her sisters one thousand dollars in addition to the legacies given them by the will, and in consequence of such promise and undertaking of the defendant, the plaintiff and her sisters did desist and refrain from taking’ any legal proceedings in the premises, and the said will was then admitted to probate, and letters testamentary were granted thereon to the defendant; then a right of action hath accrued to the plaintiffs on and in respect of said promises of the defendant for the recovery of said sum of one thousand dollars.
The objection taken to this prayer is, that it does not affirmatively state that the testator left any assets after the payment of his debts, or show that the plaintiffs would have derived any l^nefit from setting the will aside, or that there was any sufficient or probable ground for impeaching its validity; and therefore it is contended that the promise of the defendant was without any legal or valid consideration to support it. It is well settled that where an action is brought upon a promise made in consideration of forbearance to sue, it must appear that there was some one in esse liable to be sued, and something in relation to which suit could be brought. Jones vs. Ashburnham, 4 East., 456. And it is also settled that if in such case it appear that there existed no probable ground upon which such suit could be maintained, the consideration of the promise fails and no action can be maintained thereon. Edwards vs. Baugh, 11 Mees. & W., 639 ; Wade vs. Simeon, 2 Man., G. & S., 548 ; (52 E. C. L. R., 546.) Those cases have been cited and relied on by the appel[172]*172lant as conclusive of this; hut it does not seem to us to fall within the same principle. The promise sued on here was not made in consideration of the forbearance by the plaintiffs to sue for the recovery from the defendant of a sum of money or any specific thing, hut was a promise or agreement for the compromise or settlement of a controversy in relation to a matter in which both parties were interested.
In Stoddard vs. Mix, 14 Con., 22, the rule of law is correctly stated thus : “ The mere forbearance of a claim or demand before suit brought, which is not in fact a legal demand, is not of itself a sufficient consideration to support a promise. But either the compromise of a doubtful claim, or the relinquishment of a pending suit, is a good consideration for a promise,” and for this are cited, Bidwell vs. Catton, Hob., 216 ; Longridge et al. vs. Dorville et al., 5 Barn. & Ald., 117 ; Thornton vs. Fairlie, 8 Taunt., 354 ; Union Bank of Georgetown vs. Geary, 5 Peters, 99 ; Pow. on Con., 346, 354 ; Chitty on Con. 9.
“ The prevention of litigation is a valid and sufficient consideration; for the law favors tl^ settlement of disputes.” Parsons on Con., 363. “To support a compromise it is sufficient that the parties entering into it thought, at the time, there was a bona fide question between them, though it may eventually turn out there was in fact no such question. Ex parte Lucy, &c., 21 E. L. & E. R., 199. The same principle was recognized hy the Supreme Court in Union Bank of Georgetown vs. Geary, 5 Peters, 98.
In Stapilton vs. Stapilton, 1 Atkyns, 10, Lord Hardwicke (referring to Cann vs. Cann, 1 Peere. Wm.’s, 727,) says, “it was laid down that an agreement entered into upon supposition of a-right, or of a. doubtful right; though it after .comes out that the right was on the other side, shall he binding,.-and the right shall not prevail against the agreement of the parties, for the right must always he on [173]*173one side or the other ; and, therefore, the compromise of a doubtful right is a sufficient foundation of an agreement.
We refer also to Smith vs. Smith, T. Raym., 203 ; Taylor vs. Patrick, 1 Bibb, 168 ; Fisher vs. May’s heirs, &c., 2 Bibb, 448 ; Brown vs. Sloan, 6 Watts, 421, in support of the same principle.
Applying this principle to the case before us, it follows that the promise and agreement of the defendant upon which this action was brought is supported by a valid legal consideration. It is not necessary that it should affirmatively appear that the plaintiffs would have been benefitted by setting the will aside, or that they could have succeeded in the attempt.
“It is a perfectly well settled rule that if a benefit accrues to him who makes the promise, or if any loss or disadvantage accrues to him to whom the promise is made, although without benefit to the promiser, in either case the consideration is sufficient to sustain an assumpsit.” Parsons on Con., 357.
Here, the plaintiff, as one of the heirs-at-law, had a legal right to caveat the will and test its validity, and the defendant had an interest in maintaining the will, both as devisee, and in respect to his office of executor thereby created.
This case is unlike Seaman vs. Seaman, 12 Wend., 381, and Busby vs. Conoway, 8 Md. Rep., 55. In those the declaration was held to be insufficient, because it did not appear from the averments that the consideration of the promise sued on was any loss or detriment to the plaintiff, or any benefit to the defendant. It was not averred that the testator left any assets, or that anything passed under the will. Here the declaration in the second, third and fourth counts avers that John Ilartle devised to the defendant real estate of great value, of which he died seized and possessed, and the fifth count avers that under [174]*174the will the defendant became entitled to a large and valuable estate in lands, whereof the testator died seized.” These averments are sufficient to show that an estate passed to the defendant under the will, and, consequently, that he had an interest and benefit in maintaining the will and avoiding a contest with regard to its validity.
What was said by the learned Judge in Seaman vs. Seaman, is perfectly applicable here. After stating the right of the plaintiff to caveat the will, he says : “ This right, secured to him by law, he gave up in consideration of the agreement upon which this suit is brought. Whether he would have succeeded in the litigation, is not the test. If this were so, there would he no security nor anything gained by compromising a doubtful or litigated claim by stipulation to bo afterwards fulfilled ; for then to procure a fulfilment of it the party would he obliged to show he gave up a right or claim which he could have enforced at law, and the old controversy must he litigated over again.”
We are of opinion that there was no error in granting the appellees’ prayer, or in refusing the first prayer offered by the appellant.
The second prayer of the appellant was without evidence to support it, and was therefore properly refused; all the proof shows that the promise of the defendant was absolute, and not made upon any such condition as that stated in the prayer.
It follows also, from what we have before said, that the evidence offered by the ■ appellant in his first hill of exceptions was properly 'excluded. It was not competent for him to try in this suit the question of the validity of the will, or the testamentary capacity of the testator, as was said in Seaman vs. Seaman, the right of the plaintiffs to recover upon the agreement does not depend upon their establishing the invalidity of the will, “the compromise [175]*175itself proves prima facie an acknowledgment by the defendant that there was color for the objections to the will.”
(Decided 12th June, 1867.)
lübr is there any ground for reversal on the appellant’s second exception.
This exception merely states that the defendant offered to prove the value of the estate left by the testator, and further offered the settlement made in the Orphans’ Court of his personal estate, for the purpose of showing the value of the whole estate owned by him at the time of his death, which testimony was excluded.
This statement of the evidence is too indefinite to authorize the appellate Court to judge of its pertinency.
The presumption is always that the ruling of the inferior Court is correct, unless the contrary appear.
It is not stated what the evidence would have shown ; nor is it set out in the exception that the estate was of no value, or that the appellant took nothing under the will; without this the evidence would be immaterial, and was properly rejected.
Judgment affirmed1.