Walling v. Angell Others

6 R.I. 499

• Court: Supreme Court of Rhode Island
• Decided: September 6, 1860
• Status: Published

Opinion

Ames, C. J.

The agreement to pay him money, upon which the plaintiff sues, was, according to his own statement, procured by him from the defendants under a threat to destroy their father’s will, which had been concealed under an arrangement to which the plaintiff was a party; the sum to be paid being the price stipulated for bringing forward the will for probate. A contract obtained by such- means, and based upon such a consideration, cannot support an action. It contravenes the- policy of the law, which requires the wills of deceased persons to be promptly produced by those who have the charge of, or control over them, for proof and execution; and was procured from the defendants, not only without any legal consideration, but by a species of duress, which, considering the nature and- effect of a last will and testament, and the difficulty of supplying it when lost or destroyed before probate, hardly left them a choice whether they would comply with the terms imposed upon them. “ After considerable negotiation,” swears the plaintiff, “ about what amount should be given to me to bring forward the will for probate, Esten (one of the defendants) in the mean time looking and searching for it in North Providence and Smithfield,” this' agreement was concluded between the parties. As a last resort then, and after exhausting every other means of obtaining what was their .right, and was by the plaintiff in concert with his' son illegally kept from them, the defendants yielded to this extortionate demand. It is hardly possible to conceive of a con tract to pay money, so entirely without legal merit to support it.

It is no excuse to the plaintiff, legally, however it may be morally, that the testator himself, according to the plaintiff’s story, concerted this scheme, and authorized the plaintiff, after the death of the former, to conceal, and even to destroy his will, as the means of procuring this or some other benefit from those who were’ preferred in it. The testator’s power of revoking his will ceased with his life ; and all agencies conferred by him upon the plaintiff or others, with regard to such or any other subject, were themselves revoked by his death. The will then became subject exclusively to the requirement of the statute: — that the custodian of it should, within thirty days after he had knowledge of the decease of the testator, deliver the same to the court of probate, or to the person named in such will as executor. Revised Statutes chap. 155, §§ 2, 4.

Neither do we deem it of the least importance to the questions involved in this case, whether the plaintiff or his son, or both, are to be regarded as having the custody of this will, in view of the statute penalties for not bringing it forward for probate within the time limited by the statute. If the son had the manual possession of the will, the father had the sole control over it; for to him only, after the testator’s decease, was the son, by the express terms of the deposit, to deliver it. The avowed purpose of this arrangement was, to enable the plaintiff, by concealing and threatening to destroy the will, to extort from the defendants this or some other benefit to himself. The course pursued, both by the father and the son, was in exact accordance with this design, rather than with their legal duty. The will was kept back by both, until this agreement was obtained from the defendants, and then, and not till then, brought forward by the father for probate.

A scheme so illegal in its nature, and dangerous in its tendency, cannot be permitted to succeed. It militates with all the safeguards set by our statutes about both the making and revoking of wills; and exposes this most sacred species of instrument, when left defenceless by the death of the testator, to be used by the custodian or those who control him, for their own profit, in any way that they might through fraud pretend J and by perjury insist, that the testator had authorized.

This motion must be overruled, with costs, and judgment be entered upon the verdict.