#### *Margaret Priester*vs. *William Priester and others.*

A parent having advanced some of his children in his life time, executed promissory-notes to the others, payable after his death, with a view to equalize them: *Held,*that the notes were void for want of consideration.

A promissory note given by a parent to a child by way of advancement, to be paid after the death of the parent, cannot be supported as *donatio causa mortis.**(a)*

*Before*DeSaussure, Ch. *at Barnwell, February,*1831.

The circuit decree, is as follows:

DeSaussure, Ch. The bill states that,, Nicholas Priester, senr., died intestate, leaving as distributees his "widow (the complainant); three sons (William, John and Nicholas), and two daughters, married to W. R. Thomas and James Ulmer. In his lifetime the intestate drew four promissory, notes for different amounts, payable at different times in favor.of his sons William and Nicholas, and of his sons-in-law. W. R. Thomas and James Ulmer,- one for each, without any'consideration save natural affection, — ho note was drawn in favor- of intestaté’s son John, or the complainant, now his widow.

• The said promissory notes were left in the hands of the defendant, Ulmer, by intestate, to be delivered to the- payees respectively on the intestate’s death, and are now in Ulmer’s, hands. The aggregate amount of, said notes is about $1,200.

Previously to drawing said notes, intestate had made unequal advancements to .his children. For his son John he had paid large sums of money: he left a small real and personal estate.

The objects of the bill are (1) to procure an order for the sale of the real estate-.in consideration of the difficulty and inconvenience of a division. _ To this the parties consent. "(2) To compel the administrators to account with complainant. They are willing to account. " (3) To have said promissory notes given up and cancelled, and to have the sum of money *27which would be requisite to satisfy them, considered as subject to distribution. Defendants insist that the payees shall receive the respective sums which their notes call for as not being any longer assets in the administrators’.hands.

• In answer, the defendants admit that N. Priester, senr., being seized and possessed of a small real and personal estate, departed this life intestate, leaving the complainant his widow, and the several children named in the bill, entitled by law to his estate. That the said defendants have administered on the personal estate, possessed themselves thereof, by permission of the Ordinary sold the same, and are ready to account therefor.

They admit that the intestate not long before his death made four promissory notes for different amounts, payable to his sons and sons-in-law, amounting in all to $1,200 2; the defendants insist that said notes were intended as -advancements to the payees, and were left in the hands of James Ulmer to be delivered to the payees respectively on the intestate’s death. That the intestate in; his lifetime, and previous to the making of said promissory notes, had at different times made advancements to his children, but in unequal proportions, and defendants believe that his object in making the said notes, was to equalize his children in the distribution of his estate. That the said notes are for different amounts, and that no note was given to the intestate’s son John, for whom the intestate in his lifetime had paid large sums'of money.

' That the said notes were made on a good and valuable consideration, viz: the love and affection which the intestate bore to his children, the payees; and the defendants submit whether these notes ought not to be paid out of the intestate’s estate. The defendants deny that they have refused to account, also all combination, &c.

The exhibit is as follows:

. On, or before thé fifth day of January, 1827,1 promise to pay Nicholas Priester, jr., or bearer, the sum of two hundred and fifty dollars, it being for value received of him this first day of January, 1826.

(Signed) NICHOLAS PRIESTER. .

*28On, o,r before the first day of September, 1828,1 promise to pay William Priester, or bearer, the sum of three hundred and fifty dollars, it being for value received of him this 20th day of-March, 1826. ‘ -

(Signed) NICHOLAS PRIESTER;

On, or before the first-day of October, 1827, I promise to pay William R. Thomas, or bearer, the sum of two hundred and seventy dollars,’ it being for value received of hint this 25th day of April,-1826. . , ■ ,

(Signed) NICHOLAS PRIESTER.

On', or before the first day of July, 1827,1 promise to pay James Ulmer, or bearer, the sum of three hundred and thirty dollars/it being, for value received• of• him this 5th day of May, 1826. . • ■

(Signed) ' • ■ NICHOLAS PRIESTER.

This is ,a singular case. It'is one of those mixed cases ■which the inclination or the caprices of- parties have led them to form, out of the usual course. Nicholas Priester made and signed four different notes of hand at four different times,-(January, March, April, and May, 1826')-for different sums of money, payable to two of his sons and two of his sons-in-law at different periods,-for valuable consideration. They were delivered by N- Priester to his son-in-law, James Ulmer, to be kept till the death of the said Nicholas, and then to "be delivered, to the payees, respectively. It- is admitted that there was no consideration for these. notes but 'the 'love and affection tvhich the signer bore to his children, the payees, and it was believed his intention was to equalize his children, he haying made'unequal advancements to-them, and particularly by .having paid considerable debts for his son John. It was admitted that the intestaté left a sipall real and personal estate, and that if these notes are set up • as debts ■ against the estate, there will be yery little left for the widow. '

The only question arising out of these facts is, whether these ■notes, ought to be considered as debts against the - estate of N. *29Priester or not *1*Mr. Bellinger, in his learned and ingenious argument for the complainant, the widow, contended that this was a case of *nudum*•pactum, there being no valuable consideration for them. But it does not appear to me that this is tenable. The notes import a consideration on the face of them, and even if considered as given merely for love and affection, that is a sufficient consideration to support them, for natural love and affection is sufficient to support a deed to stand seized to uses, even of land.

The next objection was that, as the notes were not to be delivered to the payees by Ulmer, to whom they were intrusted, until after the death of the maker of the notes, they could be considered merely as testamentary, and that the testator not being in extremis, they could not be considered as gifts *donatio causa mortis.*

Undoubtedly these notes cannot be considered as *donatio causa mortis,*for the' reason assigned. But I am yet to learn why a person, owning property, may not place it in the hands of a third person, confidentially, to be delivered to a particular individual at his death. The act was perfect. He had signed the notes, and delivered them to a third person for the benefit of the payees. That person became a trustee for them. Deeds of gift of particular property to particular children have been found in the desk of a deceased person, and have been sustained. In the case of *Duke*vs. Dyches, *(a)***decided by the Circuit Court of Equity, and affirmed by the Court of Appeals, it was established that a deed of gift, to take effect after the death of the donor, is good ; or, in other words, that it was a gift reserving a life estate to himself, a donation to A for life, remainder to B, after his death.

The cases on this subject are somewhat contradictory, or at least, very difficult to distinguish, and the difficulty is increased by some of the cases coming within the principle of *donatio causa*mortis, and others not.

*30In *Drury*vs. *Smith,*1 P. Wms. 405, where a man by parol disposed of a note of £100 to one to deliver-over to his nephew; it was held a good *donatio causa mortis*if *the*testator died of that sickness.. *In Lawson*vs. *Lawson,*1 P. 'Wms.441, it was decided that a bill drawn by testator on his banker in favor of his wife,, and delivered to her on his death bed, *operated as an appointment of so much to her, to iake effect after his death.*In *Snelgrove*vs. *Bailey,*3 Atk. 214, Lord Hardwicke decided that the delivery, of a bond amounted to a gift of the debt *causa mortis. • ' ■*

In *Ward vs.' Turner,*2 Yes. sen. 443, Lord Hardwicke distinguished the case of a note from a bond, and decided .that the - delivery of receipts for South-Sea Annuities' did not amount to a gift of the annuities themselves. The diversities of the cases -appear .from comparing *Bibby*vs. *Coulter*(1791,) Ca. Temp. Hardw. 208, with *Hill*vs. *Chapman,*2 Bro. C. C. 612. -In the former, notes of hand, not dub, given., by a than on his death bed, were held not to be a good. *donatio..*In the latter case, a packet directed to the donee enclosing bank notes, to be delivered after death, was held a good - delivery.

It was held in *Tate*vs. *Hilbert, 2 Yes.*jun. Ill, that *donatio (causa mortis)*may be good for a particular purpose. It was decided that ap absolute gift of a check on a banker for £200 *“*Pay to self or bearer £200 (Signed) M. Bell,” being to take effect immediately, cannot be considered as *donatio causa mortis,*and bill dismissed : as to a note of hand, delivered by the donor, it being doubted if an action would lie at law against the executor for want of consideration, the Court, retained the bill. In the course-of the case Lord Rosslyri considered the' check on the banker and note of hand, as, immediate gifts — therefore, could not be sued for as legacies, and this Court could not give relief.

In *Bryson*vs. *Brownrig,*9 Yes. .1, the Master of the Rolls, Sir W. Grant, decided that á gift of two sums of money due on a mortgage, and on a bond, to a daughter, could not be sus. .tained. This wás a case of 'a gift *inter vivos. ■ But the gift**31was *not completed.*It was merely *a declaration of intention,*and a separating the bond and the mortgage from the other papers of the donor, *but no actual delivery to the*daughter, *or to any person for her.*The Master of the Rolls said, 'it depended all on the mental intention, and this mere separation of the papers was not sufficient evidence. In *Antrobus*vs. *Smith,*12 Ves. 39, the master of the Rolls decided that a receipt for a subscription to a navigation, with an endorsement signed by the owner of it, declaring that he thereby assigned to his daughter A, all his interest, which paper was found among the papers of the executrix of the owner; could not be sustained as a gift *inter vivos. There was no actual delivery*nor any proof of any intention to párt with the paper. He reserved it in his own hands during his whole life. The master of the Rolls said that where a voluntary conveyance kept by the party until his death; has been sustained, (against his last will and testament), *it has been because the transaction was complete.*It was meant as a gift but not complete, the property was not transferred by the act. There .is no case where a party has been compelled to perfect a gift which in the mode of making it he left imperfect. There is a *locus penitentice,*as long as it is incomplete, and the donor in that case did repent and changed his mind on a sufficient motive. Where the gift is not testamentary, but is to operate *inter vivos,*executors cannot be called upon to do any act to perfect it.

In *Cattein*vs. *Missing,*1 Mad. R. 176, the Vice Chancellor, Sir Thomas Plumer, decided that a letter to executors expressing a consent by the testator that a sum of £500 was proper to be given to the daughter of a deceased husband, should not be considered a gift of so much in the hands of the executors, the gift not being perfected. It was a mere intention to give. In *Baker*vs. *Avant,*í N. &-McC. 218, it was decided that a parol gift is not a valid gift without delivery: and in *McDowell*ads. *Murdoch,*1 N. & McC. 237, it was decided that there is no difference in the delivery required in cases tíf *donatio causa mortis,*and other cases of parol gifts. In all such cases the *32real question is *whether the donor'has parted with his dominion over the property or not.*

, To apply-the doctrines and decisions, to the case we are considering.

The father having made advances to one son] (John), was disposed to make, advances to other children, and to effect this purpose he wrote and' signed the notes-of hand stated above. He delivered, them to a third person for. the beneñf of the children, to whom he had made them payable, to be delivered to them after his death. ' It. is not-'the case of a *donatio causa mortis;*for it was not;a transaction in immediate expectation of death. It “was a gift, but' a gift to take effect at a future time. There was no condition attached — no control reserved over the notes, or the person to whom they were,delivered. It was an absolute, ^unqualified gift, for the benefit of children, founded on a proper motive, to equalize all his children. Nothing remains to be perfected. Suits could be brought at law against'the- executors : but an account is also wanted to settle the estate. It appears to me that the gift was sufficiently perfected, though the enjoyment of the thing given was postponed, not indeed on the face of the notes, which have fixed times of payment, but from the admission of the parties. Creditors are not in question.’ It falls hard on the widow, for she has no benefit of advancements to children, brought into common stock, but she will have her dower. ’ -

It is ordered that the defendants do account for. the estate of the intestate, and that in doing so, they pay and satisfy these notes, or give credit to the payees.' Costs to be paid out'of the estate.

The complainant appealed.

*Bellinger,*for appellant.

Patterson, contra.

(a)

*Hall*vs. *Howard,*Rice, 310.

(a)

**2 Strob. Eq. 353.

*Curia, per*

JohNson, J.

The case stated in the decree of the Circuit Court, from which this is an appeal, is concisely this. The intestate, Nicholas Priester, having advanced his children *33in unequal portions, with the intention to equalize them after his death, made promissory notes to four of his children^ differing in amount and in the time of payment, and delivered them to the defendant, James Ulmer, with directions that he should deliver them to the persons to whom they were made payable, after his (the intestate’s) death. Ulmer retained the notes in his possession; and upon a bill for partition of his (the intestate’s) estate, the questions discussed upon the argument here, are 1st. Whether the notes are binding as debts due by the intestate ? And 2d. Whether they are valid as *donatio causa mortis*?

There is no rule better established than that' a promise to pay money without consideration is *nudum*•pactum, and void. There must be the *do ut*des, the *fado ut*facias, the *fado ut des,*or the *do ut*facias, of the civilians, to make a promise binding; nor is it helped by being in writing, unless by specialty, which itself imports a consideration. In *Singleton*vs. *Bremar,*Harp. 211, Judge Nott says, that “as between the original parties, a note without consideration is no more than a parol promise to pay money as a gift, which is not a ground of action; it is a *nude pact,*and void as between the original parties; ” and he is sustained by the whole current of authorities. These positions are not directly questioned, but, it is said, that a pecuniary consideration is not necessary, and that a moral obligation is sufficient to support a promise: that the intestate was under a moral obligation to provide equally for all his children, and having made these notes with a view to that object, they are obligatory on his representatives. The general rule is, that the consideration to make a contract binding, must be .either a benefit to the party promising, or some trouble of prejudice to the party to whom the promise is made. (Com. Dig. Action on the case upon Assumpsit, B. 1.) And on referring to the cases in which it has been held that a promise founded on a moral consideration has been sustained, it will be found that they have been founded on some right withheld, or wrong done to the party to • whom the promise was made, and for which the rules of law did not provide a remedy; *34as where one promises to pay a just debt barred by the statute of limitations; or a debt contracted during infancy; or a certificated bankrupt, who afterwards becomes able to pay a pre-existing debt: Ld. Ray. 389 ; Str. 690; 1 T. R. 648 ; or where a woman, after the death of her husband, promises to pay a bond given by her whilst covert, for money lent to a third person at her request. *Lee*vs. *Muggeridge,*1 Eng. C. L. R. 14. But I have not been able to find any case or doctrine which maintains the position that the consideration of love and affection will support a promise. On the contrary, Comyn, in his treatise on contracts, vol. 1, page 16, says, that it is not .sufficient; and he remarks, with great reason, that although a gratuitous undertaking, seriously made, is certainly sufficient to form the basis of a moral or honorary engagement, and ought not to be receded from without adequate reasons, yet, in general, a person making such a promise, does not thereby intend to subject himself to legal responsibility, and the object of the law is rather to give effect to contracts founded on the exigencies of society, than to compel the execution of a voluntary engagement of a mere donation.

Perhaps no case could have occurred which would better illustrate the correctness of the rule than that now under consideration. The moral obligation to provide for the support and subsistence of a wife, is at least equal to that of providing equally- for children. The law, in most cases which occur, makes a difference in her favor, by giving her one-third of the husband’s estate after his death, whatever may be the number of his children; and it so happens, in this case, that if the amount of their notes are substrae ted from this estate, it will leave a mere pittance to be distributed between the widow and the children ; and the effect of the position attempted to be maintained, is to violate one rule of morality to preserve another. If, after the distribution of one-third of the estate to the widow, the estate had been sufficient to make up the shares of those not advanced, equal to those children who had been, the law would have done precisely what the intestate intended, by so *35distributing the estate, as to make them all equal, and it cannot be regarded as a breach of morality not to pay that which cannot be paid for want of assets, without • violating a rule of ■ morality as'well-' as of law. ■ ' .

’ It is equally clear that these notes are not góod as *donatio causa mortis.*To substantiate such a gift, it must be made, 1st.. In the last ’illness of the donor, in. apprehension of the approach .of death. ,-2d. It must be a thing capable of delivery and which passes by it. 3d. There .must be Such a delivery as to transfer the possession. And 4th. It reverts to the ‘donor.’ if he survives, (Tol. Law of Ex’ors. 233). And it may be safely affirmed that no one of these circumstances enters. into the gifts now .claimed.

It does not appear that the intestate was sick at .the time, nor ■did any other circumstance enter into the transaction, which shows that it, was made in contemplation of approaching death within the meaning of the rule. The subject of the gift was a void promise to pay after the death of the donor, — a thing having neither form, shape, or legal existence, incapable of actual delivery, or passing by delivery. \ It could not revert to the donor because the gift was, by the terms,- not to take eifect until after his death. • \

It is therefore ordered, adjudged and decreed, that so much of the decree ’ of the Circuit Court as directs that the notes in question be paid out of the funds of the estate of the intestate, be reversed, ánd that the said notes be delivered up to’be. can-celled. In., all other respects the said decree is affirmed.

O’Neall and Harper, JJ., concurred.

*Decree modified.*