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District Court of Appeal, Second District, Division 2, California.


Civ. 11589.

Decided: February 23, 1938

William Ellis Lady, of Los Angeles, for appellant. Phil Jacobson and Harold Prudhon, both of Los Angeles, for respondent.

Defendant appeals from a judgment entered in favor of plaintiff for the sum of $10,000 upon the return of a jury's verdict. This litigation originated in the negotiations of the parties relative to their efforts to have probated two wills of the late Emma H. Wilson, who died on October 5, 1934. Plaintiff filed for probate a will dated May 17, 1933, in which he was named a beneficiary and the executor. Defendant filed for probate a will dated October 24, 1933, in which she was made the principal beneficiary and was named executrix. Plaintiff was not mentioned in this will. A third will was executed by Emma H. Wilson under date of August 22, 1933. There is a conflict in the testimony regarding the contents of this third will. Plaintiff testified that he was named therein as a beneficiary and defendant testified that she was the sole beneficiary. The will, however, became lost or was destroyed and was not offered for probate.

In his complaint plaintiff sets forth an instrument directed to himself and signed by defendant under date of January 20, 1934, as follows: “Dear Bob, I feel that you and I should settle our affairs between us without Lawyers so I trust you will not say anything to your Lawyers as well as myself. I will give you the equivalent of $10,000 upon the consideration that you will tell the truth about my Dear Sister Will of Aug. 22, 1933, as you know this will left everything to me. Bob you know I worked and put my money into everything Emma bought and we both agreed that it should go to me if any thing happens to her. Lots of love to you and Margatet.” In his complaint plaintiff alleged that defendant had promised to pay to him the sum of $10,000, upon consideration “that plaintiff withdraw his contest to the probate of said holographic will under which said defendant was the principal beneficiary, and his objection to the appointment of defendant as executrix thereunder, and upon the further consideration that plaintiff would withdraw his petition to probate the will of Emma H. Wilson dated May 17, 1933, under which will plaintiff was a beneficiary, and his request to be appointed executor thereunder.” By her answer defendant alleged that there was no valid consideration for the promise to pay the sum of $10,000. She asserts that the sole consideration was an agreement on the part of plaintiff to “tell the truth about the will dated August 22, 1933.”

The defendant contends that the court erred in refusing to give to the jury the following instruction: “The Court instructs the jury that in this case the defendant has alleged that there was no consideration for the claims of plaintiff. If you find from the evidence that the paper sued upon herein, to–wit, the one bearing the date of January 20, 1935, was given only in consideration as therein stated, that Robert Wilson tell the truth about the will of the sister of Mrs. Davis bearing date of August 22, 1933, then I charge you that there is no consideration for the reason that everyone is always required or at least expected to tell the truth of and concerning matters and things.” This instruction should have been given. The principle of law set forth therein is not covered by any of the instructions given by the court. The making of a promise to do that which the promisor is legally bound to do does not furnish a valid consideration for the promise of another. Marinovich v. Kilburn, 153 Cal. 638, 96 P. 303; Sullivan v. Sullivan, 99 Cal. 187, 33 P. 862. “This is merely the converse of the rule stated in section 1605 of the Civil Code to the effect that any benefit to the promisor to which he is not legally entitled, or a detriment to the promisee which he is not lawfully bound to suffer, is a good consideration.” 6 Cal.Jur. § 122, p. 179. The evidence is in sharp conflict on the question of the true consideration for the agreement sued upon. Defendant was entitled to have the jury instructed as to the principle of law applicable in case the jury should find the facts in accordance with her contention.

The judgment is reversed. The purported appeal from the order denying a new trial is dismissed.

WOOD, Justice.

We concur: CRAIL, P. J.; McCOMB, J.