Spangenberg

The plaintiff in this action seeks to recover the sum of $3,907.61, alleged to he due to him from the defendant by the terms of a contract whereby the plaintiff, the defendant and four other children of one Ferdinand Spangenberg, agreed, during the lifetime of their father, that if he “should die possessed of any property and give, devise or bequeath to any of said parties more or less than one-seventh (1/7) of the total amount of the property given, devised or bequeathed to all of said parties, then whatever property said parties or any of them received from said estate upon a partial or final distribution thereof, shall be pooled and divided equally among said parties share and share alike. ’ ’

The consideration for the contract was expressly stated to be the love and affection which the parties thereto bore toward one another, and their desire to avoid litigation over the estate of their father.

Ferdinand Spangenberg died in the city of New York on the second day of May, 1903, leaving a will bearing date the second day of May, 1902, wherein the defendant, Rudolph Spangenberg, of the city of Oakland, California, was nominated executor. On July 9, 1903, the surrogate court of…