[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 320 Upon the facts proved by the referee, the claims other than that upon the promise to Ira Outhouse and Mrs. Adams, respectively, upon the occasion of the settlement and distribution of the estate of William Outhouse, were properly allowed. *Page 321
There was evidence to warrant the findings of fact as to these claims, and this court cannot review the evidence. The legal questions involved in these findings, and the objections to the plaintiff's right to recover thereon, were properly disposed of by the Supreme Court, and the reasons assigned by Judge JOHNSON for an affirmance of the judgment of the referee in respect of that portion of the recovery are entirely satisfactory; so, too, the exception to the admission of evidence is well answered in the opinion of the court below. But the referee and the Supreme Court erred in giving the plaintiff judgment upon the promise to Ira Outhouse and Mrs. Adams.
They, with the defendant and other children and next of kin, each entitled to a distributive share of the estate of William Outhouse, had met with the representatives of the deceased, for the purpose of an amicable settlement and distribution of the property among those entitled. Ira Outhouse and Mrs. Adams, severally and without the knowledge of the others equally entitled, charged the defendant with the appropriation of a large amount of personal property which should come into the distribution as a part of the estate of the decedent, and threatened a prosecution, refusing to consent to any settlement and distribution until such claim was arranged. To appease and satisfy these persons, and induce them to acquiesce in the settlement and distribution of the estate, the promises were made, and the promisees, with the other children and next of kin of the intestate, made a settlement and agreed upon a distribution of the property and estate, which was carried into effect.
It is evident that the distributees of the estate, other than those taking part in this arrangement, supposed that all were sharing equally in the estate of the intestate, and the settlement and distribution were made and assented to upon the faith of this equality. If any one had refused to come into the arrangement for any reason, it could not have been accomplished. The result, if the promises of the defendant were valid, will be to give to each of the promisees a larger share *Page 322 and portion of the estate than the others received. The promisees and their assignee, the plaintiff, are estopped from alleging that there was no foundation for the claim they made, and that no part of their ancestor's estate had been appropriated by the defendant, or was omitted from the property then ready for distribution and actually distributed. All present and taking part in the settlement, and receiving a part of the estate, were entitled to share in every part and in the whole of it. No one had a right, or could, in good faith, by any secret arrangement with another, secure to himself any advantage over the others. As each became a party to, and acquiesced in the distribution, he did so upon the faith that he was sharing equally with every other; and any secret agreement or arrangement, which should disturb this equality, was a fraud and a violation of the good faith which each owed to the other, and the confidence which each had a right to repose in the other. They occupied that relation of trust and confidence to each other which called for the exercise of good faith in all, and prohibited each from securing any special advantage to himself. Ira Outhouse and Mrs. Adams, in accepting their share of the estate distributed by the representatives, and becoming parties to the settlement, held out to the others, and induced them to believe, that they accepted the same as their just and full portion of the estate; and the others may be presumed to have been influenced by such action to assent to the settlement. These promises are within the principle which avoids all promises and agreements by which one creditor, uniting in a composition deed, seeks to secure an advantage over the other creditors agreeing to the compromise. Such arrangements and agreements, whatever their form, are uniformly condemned; and no action will lie for the recovery of a debt secretly reserved from the composition, or upon a promise made in consideration of signing the deed. (Russell v. Rogers, 10 Wend., 473;Lawrence v. Clark, 36 N.Y., 128.) The principle was reaffirmed and applied by this court in Bliss v. Matteson, recently decided (ante, p. 22), under somewhat peculiar circumstances, which need not be repeated. The case is *Page 323 authority for holding that the principles of Russell v.Rogers, and kindred cases, apply to all cases within the reason of the rule, and absolutely disables every one, acting with others in a matter of common interest, from securing to himself any particular profit or advantage over his associates, by any secret or undisclosed agreement or understanding.
The referee should, at the close of the plaintiff's evidence, on the motion of the defendant then made, and upon the evidence as it then stood, clearly disclosing the transaction, and showing the illegality of the promises to Ira Outhouse and Mrs. Adams, have dismissed the complaint as to the causes of action based upon these promises, and set forth in the second and third counts of the complaint.
The judgment must be reversed, and a new trial granted; costs to abide event.
All concurring,
Judgment reversed.