The executors of John Prater having propounded his will for probate, Mrs. Miller, the daughter and one of the heirs-at-law of the testator, employed counsel, and appeared in the Probate Court on the day set apart for proving the will, and avowed her intention of contesting it. Thereupon the appellants contracted and agreed with her, that, in consideration of her making no contest, and allowing the will to be proved as the last will and testament of her father, they would pay her the sum sued for. In conformity to the agreement, she made no contest, and now seeks to recover the amount which they agreed to pay.
There is no evidence that any just cause existed why the will should not have been admitted to probate as valid, nor is it shown that even any doubt existed as to its validity. The appellee threatened to contest it, and went so far as to employ counsel for this purpose, and was induced to desist by reason of the appellants’ agreement to pay her the sum demanded. The charge of the circuit judge substantially presents the question, whether, under such a state of facts, she was entitled to recover. He was of opinion, and so charged the jury, that, if the facts existed as above stated, she could maintain her action.
The plaintiff in the court below relied upon a verbal contract, and it was incumbent upon her to show that it was supported by a consideration such as the law will regard. Her engagement was, to interpose no objection to the probate of her father’s will — a general forbearance to gainsay its validity in the Probate Court. Is this, without more, a sufficient consideration ? If no doubt existed as to the validity of the will, it was her legal duty not to have interposed. It could not *325be tolerated that any one should enforce a promise to pay money, the sole consideration of which was an exemption from a threatened suit, for which there was not the least foundation. As well might a party be allowed to recover upon a contract to pay so much money in consideration that the plaintiff would not slander the defendant, as that he would not make a false clamor in court against him. To make such consideration valid, there must be some legal right abandoned or postponed, or some obligation imposed by the contract beyond what the law, without it, enjoins as a duty. Mrs. Miller could have made a contest, but would it have availed her anything ? If she had even proved successful, it is not shown that she would have been benefited. The proof entirely fails to show that she has suffered any detriment or inconvenience, or that the defendants below have in anywise been benefited.
The old cases upon this subject held, that the forbearance of suit, where a party was not liable, was not a good consideration.-Tooley v. Windham, Cro.Eliz.206; King v. Hobbs, Yelv. 26. A modification of this doctrine was introduced by the court in Longridge v. Dorville, 5 B. & Ald. 117, where it was held, the yielding up the prosecution of a right as to which the law was doubtful would sustain a promise to pay. But it was admitted by Holroyd, J., in that case, “ that if a person is about to sue another for a debt for which he is not answerable, the mere consideration of forbearance is not sufficient to render him liable.”
In Edwards v. Baugh, 11 Mees. & W. 641, the declaration stated, that disputes and controversies were depending between the plaintiff and defendant, as to whether or not the defendant was indebted to the plaintiff in, to-wit, the sum of 173Z. 2s. 3d., for money lent to and paid for the defendant by the plaintiff; and thereupon, in consideration that the plaintiff would then promise the defendant not to sue him at any time for the recovery of said sum so in dispute between them, and would accept from the defendant the sum of 100/. in full satisfaction and discharge of the same, the defendant promised the plaintiff to pay him the sum of 100Í. in a reasonable time :— It was held, that the declaration was bad, as not showing a sufficient consideration for the promise, there being no allegation that any debt was due, but merely that a dispute and *326controversy existed respecting it. It was contended in that case, for the plaintiff, that the relinquishment by him of a right, and a corresponding benefit to the defendant of being saved costs, &c., incident to making defence, &c., was a sufficient consideration ; and that the parties, by their agreement, had constituted themselves the judges as to whether anything was due or not, and had admitted thereby the legality of a claim for some amount. But the court held otherwise. “Lord Abinger, 0. B. — The declaration only alleges that certain disputes and controversies were pending between the parties, whether the defendant was indebted to the plaintiff a certain sum of money. There is nothing in the use of the word “ controversy” to render this a good allegation of consideration.” He conceded that the declaration would have been good, if it had averred that the defendant was indebted to the plaintiff in divers sums for money lent, &c., and a dispute arising as to the amount due, the defendant promised to pay so much in satisfaction, &c. In that case, he said, the plaintiff would have been bound to have proved at the trial the existence of a debt to some amount: he might not be bound to prove that the whole amount was due, “ but simply to show such a claim as to lay a reasonable ground for the defendant’s making the promise ;” whereas, he said, “ in the present case, he would not have to prove anything beyond the fact that there had been a dispute between himself and the defendant as to the existence of a debt. A man may threaten to bring an action against any man he meets in the street.” Bolfe, B., said he was of the same opinion, and that the counsel for the plaintiff had laid down the doctrine much too broadly — that if a party forbears to do something which he might have done, that forbearance would be a good consideration for a promise ; so that, if it had appeared on the face of the declaration that nothing had been due the plaintiff, his forbearance to sue would even then be a good consideration. “ I cannot,” said he, “ subscribe to that. I think the plaintiff is bound to show a consideration, in the shape of something either beneficial to the opposite party, or detrimental to himself.” See, also, 2 Binn. Rep. 509; 5 Serg. & R. 519; Parsons on Con. 365-367; Story on Cont., § 436; 21 Ala. 111; Add. on Con. 32-33; Chitty on Con. 434.
*327In this case, the proof wholly fails to show that any ground of contest existed; and without this, or without some proof showing a reasonable ground of dispute, the plaintiff below had no cause of action, has sustained no injury or inconvenience, and cannot therefore recover.
We think the court had a discretion, under the provisions of the Code, to allow the amendment, and hence we would refuse to reverse for that reason.
For the error in the charge, the judgment is reversed, and the cause must be remanded.