#### Becker, Respondent, vs. Noegel, Appellant.

*December 8, 1916*

January *16, 1917,*

*Bills and notes: Validity: Discharge of prior indebtedness: Married*' *woi..jn: Consideration.*

1. A note given on Sunday to take up a note previously given is ineffectual to discharge the indebtedness on such prior note.

2. Where the maker of a note was a widow and had separate estate at the time the note was in fact made, it is immaterial that at the date of the note she was a married woman with no separate property or business.

3. Where the payee in a note made by father and son accepted therefor, after the father’s death, a note of the widow (to whom the estate of her husband had come), and thereby waived a claim against said estate and also discharged the indebtedness of the son, either the waiver or the discharge was a sufficient consideration for the widow’s note.

Appeal from a judgment of the circuit court for Washington county: Mastín L. Lueck, Circuit Judge.

*Affirmed.*

Action on a promissory note.

The making and delivery of the note were admitted; but it was claimed that there was no consideration to support it and that when it was made, defendant was a married woman, having no separate property or business.

The case was decided on these undisputed facts: About May 7, 1910, George Noegel, defendant’s son, borrowed $800 from plaintiff, giving his promissory note with his father, Conrad Noegel, as an accommodation maker, due in one year; the transaction on the part of plaintiff being conducted by her husband. May 7, 1911, which was a Sunday, the note was taken up by a new note signed by defendant and her son. There was then real estate in the name of her husband, but none owned by her in her own name. July 1, 1911, he deeded his real estate and conveyed all his personal property to her. July 14th, thereafter, he died. Thereafter she signed the note in suit, and with it took up the one *74signed by her and her son. For convenience in computing interest it was dated May 7, 1911, the due date of the first note. When she gave the last note, she said she owned all the property and ought to pay the debt and promised to pay it by signing the note. When the second note was signed, her husband was very sick. She recognized the note by paying interest thereon for two years. The property transferred to her was more than enough, over exemptions, to pay all Mr. Noegel’s debts.

Judgment was rendered on such facts for plaintiff and defendant appealed.

Eor the appellant there were briefs by *John W. Bu/rk-hardt*and *Timlin & Dean,*all of Milwaukee, and oral argument by *Mr. Patrick*W. *Dean*and *Mr. Burkhardt.*

*J. G. Bussell*of Hartford, for the respondent.

Marshall, J.

A brief treatment of objections made on behalf of appellant to the judgment is all that seems necessary. ’

The fact that the second note was void because made on Sunday, rendered the transaction ineffectual to discharge the indebtedness on the first note. It existed at the time the note in suit was made and plaintiff had a valid claim therefor against the estate of defendant’s husband and against her son.

The fact that appellant was a married woman at the date of the last note is not material, since she was not such when the note was in fact made. She was not then under any disability whatever.

When the last note was given, the indebtedness which was incurred when the first note was given, not only existed against the estate of defendant’s husband, but against her son. The void transaction did not discharge such indebtedness as to either. Appellant was vitally interested in protecting the estate of her husband from being called upon to' *75pay tbe same. By respondent taking the last note, she waived her claim against the estate and discharged the indebtedness of the son. Either was a sufficient consideration to support the note, as the trial court held, referring to sec. 1615 — 50, Stats., which embodies a familiar principle of unwritten law. 1 Randolph, Comm. Paper (2d ed.) § 410; 7 Cyc. 701-4; 1 Daniel, Neg. Inst. (4th ed.) § 185.

*By the Oowrt.*— The judgment is affirmed.