PARKER, J. The question which provoked the most discussion by counsel on this appeal, and which lies at the foundation of plaintiff's asserted right of recovery, is, whether by virtue of a contract, defendant's testator, William E. Story, became indebted to his nephew, William E. Story, 2d, on his twenty-first birthday in the sum of five thousand dollars. The trial court found as a fact that "on the twentieth day of March, 1869, . . . . William E. Story agreed to and with William E. Story, 2d, that if he would refrain from drinking. liquor, using tobacco, swearing, and playing cards or billiards for money until he should become twenty-one years of age, then he, the said William E. Story, would, at that time, pay him, the said William E. Story, 2d, the sum of five thousand dollars for such refraining, to which the said William E. Story, 2d, agreed," and that he, "in all things fully performed his part of said agreement."

The defendant contends that the contract was without consideration to support it, and therefore invalid. He asserts that the promisee, by refraining from the use of liquor and tobacco, was not harmed, but benefited; that that which he did was best for him to do independently of his uncle's promise, and insists that it follows that, unless the promisor was benefited, the contract was without consideration; a contention which, if well founded, would seem to leave open for controversy in many cases whether that which the promisee did or omitted to do was in fact of such benefit to him as to leave no consideration to support the enforcement of the promisor's agreement. Such a rule could not be tolerated, and is without foundation in the law. The exchequer chamber, in 1875, defined consideration as follows: "A valuable consideration in the sense of the law may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other." Courts "will not ask whether the thing which forms the consideration does in fact benefit the promisee or a third party, or is of any substantial value to any one. It is enough that something is promised, done, forborne, or suffered by the party to whom the promise is made, as consideration for the promise made to him": Anson on Contracts, 63.

"In general, a waiver of any legal right at the request of another party is a sufficient consideration for a promise": Parsons on Contracts, 444.

"Any damage, or suspension, or forbearance of a right will be sufficient to sustain a promise": 2 Kent's Com., 12th ed., 465.

Pollock, in his work on contracts, page 166, after citing the definition given by the exchequer chamber already quoted, says: "The second branch of this judicial description is really the most important one. Consideration means, not so much that one party is profiting, as that the other abandons some legal right in the present or limits his legal freedom of action in the future, as an inducement for the promise of the first."

Now, applying this rule to the facts before us, the promisee used tobacco, occasionally drank liquor, and he had a legal right to do so. That right he abandoned for a period of years, upon the strength of the promise of the testator that for such forbearance he would give him five thousand dollars. We need not speculate on the effort which may have been required to give up the use of those stimulants. It is sufficient that he restricted his lawful freedom of action within certain prescribed limits upon the faith of his uncle's agreement; and now, having fully performed the conditions imposed, it is of no moment whether such performance actually proved a benefit to the promisor, and the court will not inquire into it; but were it a proper subject of inquiry, we see nothing in this record that would permit a determination that the uncle was not benefited in a legal sense. Few cases have been found which may be said to be precisely in point, but such as have been support the position we have taken.

In Shadwell v. Shadwell, 9 Com. B., N. S., 159, an uncle wrote to his nephew as follows:

"My Dear Lancey, I am so glad to hear of your intended marriage with Ellen Nicholl, and as I promised to assist you at starting, I am happy to tell you that I will pay to you £150 yearly during my life, and until your annual income derived from your profession of a chancery barrister shall amount to 600 guineas, of which your own admission will be the only evidence that I shall require.

"Your affectionate uncle,

"CHARLES SHADWELL."

It was held that the promise was binding, and made upon good consideration.

In Lakota v. Newton, an unreported case in the superior court of Worcester, Massachusetts, the complaint averred defendant's

promise that "if you [meaning plaintiff] will leave off drinking for a year I will give you one hundred dollars," plaintiff's assent thereto, performance of the condition by him, and demanded judgment therefor. Defendant demurred on the ground, among others, that the plaintiff's declaration did not allege a valid and sufficient consideration for the agreement of the defendant. The demurrer was overruled.

In Talbott v. Stemmons, Ky., Oct. 24, 1889 (not yet reported), the step-grandmother of the plaintiff made with him the following agreement: "I do promise and bind myself to give my grandson, Albert R. Talbott, five hundred dollars, at my death, if he will never take another chew of tobacco or smoke another cigar during my life, from this date up to my death; and if he breaks this pledge, he is to refund double the amount to his mother." The executor of Mrs. Stemmons demurred to the complaint, on the ground that the agreement was not based on a sufficient consideration. The demurrer was sustained, and an appeal taken therefrom to the court of appeals, where the decision of the court below was reversed. In the opinion of the court it is said that "the right to use and enjoy the use of tobacco was a right that belonged to the plaintiff, and not forbidden by law. The abandonment of its use may have saved him money or contributed to his health; nevertheless, the surrender of that right caused the promise, and having the right to contract with reference to the subject-matter, the abandonment of the use was a sufficient consideration to uphold the promise." Abstinence from the use of intoxicating liquors was held to furnish a good consideration for a promissory note in Lindell v. Rokes, 60 Mo. 249; 21 Am. Rep. 395.

The cases cited by the defendant on this question are not in point. In Mallory v. Gillett, 21 N. Y. 412, Belknap v. Bender, 75 N. Y. 446, 31 Am. Rep. 476, and Berry v. Brown, 107 N. Y. 659, the promise was in contravention of that provision of the statute of frauds which declares void all promises to answer for the debts of third persons unless reduced to writing. In. Beaumont v. Reeve, Shirley's Lead. Cas. 6, and Porterfield v. Butler, 47 Miss. 165, 12 Am. Rep. 329, the question was, whether a moral obligation furnishes sufficient consideration to uphold a subsequent express promise. In Duvoll v. Wilson, 9 Barb. 487, and In re Wilber v. Warren, 104 N. Y. 192, the proposition involved was, whether an executory covenant against encumbrances in a deed given in consideration of natural love and affection could be enforced. In Vanderbilt v. Schreyer, 91

N. Y. 392, the plaintiff contracted with defendant to build a house, agreeing to accept in part payment therefor a specific bond and mortgage. Afterwards he refused to finish his contract unless the defendant would guarantee its payment, which was done. It was held that the guaranty could not be enforced for want of consideration, for in building the house the plaintiff only did that which he had contracted to do. And in Robinson v. Jewett, 116 N. Y. 40, the court simply held that "the performance of an act which the party is under a legal obligation to perform cannot constitute a consideration for a new contract." It will be observed that the agreement which we have been considering was within the condemnation of the statute of frauds, because not to be performed within a year, and not in writing. But this defense the promisor could waive, and his letter and oral statements subsequent to the date of final performance on the part of the promisee must be held to amount to a waiver. Were it otherwise, the statute could not now be invoked in aid of the defendant. It does not appear on the face of the complaint that the agreement is one prohibited by the statute of frauds, and therefore such defense could not be made available unless set up in the answer: Porter v. Wormser, 94 N. Y. 431, 450. This was not done.

In further consideration of the questions presented, then, it must be deemed established, for the purposes of this appeal, that on the thirty-first day of January, 1875, defendant's tes tator was indebted to William E. Story, 2d, in the sum of five thousand dollars, and if this action were founded on that contract, it would be barred by the statute of limitations, which has been pleaded; but on that date the nephew wrote to his uncle as follows:

“Dear Uncle,—I am now twenty-one years old to-day, and I am now my own boss, and I believe, according to agreement, that there is due me five thousand dollars. I have lived up to the contract to the letter in every sense of the word."

A few days later, and on February 6th, the uncle replied, and, so far as it is material to this controversy, the reply is as follows:

"Dear Nephew, — Your letter of the 31st ult. came to hand all right, saying that you had lived up to the promise made to me several years ago. I have no doubt but you have, for which you shall have five thousand dollars, as I promised

you. I had the money in the bank the day you was twentyone years old that I intended for you, and you shall have the money certain. Now, Willie, I don't intend to interfere with this money in any way until I think you are capable of taking care of it, and the sooner that time comes the better it will please me. I would hate very much to have you start out in some adventure that you thought all right, and lose this money in one year. . . . . This money you have earned much easier than I did, besides acquiring good habits at the same time, and you are quite welcome to the money. Hope you will make good use of it. . . . W. E. STORY.

"P. S. You can consider this money on interest."

The trial court found as a fact that "said letter was received by said William E. Story, 2d, who thereafter consented that said money should remain with the said William E. Story in accordance with the terms and conditions of said letter"; and further, "that afterwards, on the first day of March, 1877, with the knowledge and consent of his said uncle, he duly sold, transferred, and assigned all his right, title, and interest in and to said sum of five thousand dollars to his wife, Libbie H. Story, who thereafter duly sold, transferred, and assigned the same to the plaintiff in this action."

We must now consider the effect of the letter, and the nephew's assent thereto. Were the relations of the parties thereafter that of debtor and creditor simply, or that of trustee and cestui que trust? If the former, then this action is not maintainable, because barred by lapse of time. If the latter, the result must be otherwise. No particular expressions are necessary to create a trust. Any language clearly showing the settler's intention is sufficient if the property and disposition of it are definitely stated: Lewin on Trusts, 55.

A person in the legal possession of money or property, acknowledging a trust with the assent of the cestui que trust, becomes from that time a trustee, if the acknowledgment be founded on a valuable consideration. His antecedent relation to the subject, whatever it may have been, no longer controis: 2 Story's Eq. Jur., sec. 972. If before a declaration of trust a party be a mere debtor, a subsequent agreement recognizing the fund as already in his hands, and stipulating for its investment on the creditor's account, will have the effect to create a trust: Day v. Roth, 18 N. Y. 448.

It is essential that the letter, interpreted in the light of surrounding circumstances, must show an intention on the part