As I view the record in this case, there is no genuine issue of material fact to be determined at a trial upon the merits. The action of the circuit court in granting the motion for summary judgment was, therefore, correct, and I would affirm.
The record in this case establishes that, at the time of the death of the decedent, the petitioners had possession of certain passbooks relating to deposits in various institutions. The respondent wanted the passbooks. The petitioners asserted a claim for their services in caring for the decedent and also asserted a gift to them of the funds represented by the passbooks. This impasse between the parties was resolved by the agreement and assignment, by the terms of which the petitioners would each get one-third of the net estate and the respondent the remaining one-third. This agreement recited the care and affection given the decedent by the petitioners as well as “One ($1.00) Dollar and other good and valuable consideration.”
It seems evident that the parties resolved and compromised their conflicting claims and, by the execution of the agreement, the respondent acknowledged the care and affection recited therein. By their petition seeking to enforce the agreement, the petitioners assert the fact of the agreement, allege the turning over of the passbooks and further assert that there was forbearance by the petitioners with regard to making a claim upon the estate of the decedent. The respondent, by his answer, denies the care; he does not deny the forbearance; he admits the signing of the agreement, but in pure conclusionary language asserts that the agreement is of no legal effect.
The mere assertion that the agreement is of no legal effect does not create a material fact to be ascertained in a trial. Forbearance in asserting a claim, whether legal, equitable, certain or doubtful, provided it is not utterly groundless, is sufficient consideration for a promise made on account of such forbearance. 17 CJS, Contracts, § 103, at 815; 12 ILP, Contracts, § 90, at 249; 78 ALR2d 1410. Thus, as I view this record, the majority opinion remands the case to ascertain a matter that is neither material nor relevant in view of the other considerations established by the record.