
    Robert H. Smith versus Ebenezer Mayo and Lemuel Weeks, Executors.
    Where an infant had given his promissory note for a valuable consideration, but not for necessaries, on which he had paid a part before coming of age, and alter coming of age made his will, in which he directed his just debts to be paid, it was held that his executors were not liable.
    Assumpsit on a promissory note for 129 dollars 74 cents, made on the 28th of November, 1807, by James Weeks, the defendants’ testator, and payable to the plaintiff or his order in ninety days from the date.
    In a case stated for the opinion of the Court, it was agreed that the note was duly made for a valuable consideration; that the testator was nineteen years of age when he made the note; that on the 5th day of August, 1809, being then of full age, he made his last will, which was afterwards duly proved, and in and by the same devised all his estate, real and personal, to certain of his brothers and sisters in equal shares, adding this clause — “ after my just debts shall be paid, which I direct first to be done.” The * estate proved to be insolvent, and the plaintiff’s claim had been allowed and returned by the commissioners into the Court of Probate; 40 dollars having been paid by the testator, and endorsed upon the note in suit, before the testator came of age.
    Upon these facts, it was agreed by the parties that if, in the opinion of the Court, the plaintiff was entitled to recover, the defendants should be defaulted; otherwise that the plaintiff should become nonsuit.
    
      Todd for the plaintiff.
    As it is admitted that the deceased received a valuable consideration for this note, and acknowledged it as a just demand by a partial payment, it was a beneficial contract to him, and the consideration must have gone to constitute part of the estate of which he died possessed. There having been, then, a benefit to him, and he not having elected to avoid the transaction after he was of age, it is incompetent for the defendants to avail themselves of this defence after his death.
    All the modern cases upon this subject seem to adopt as a principle, that where the infant has received a value for any contract during his minority, and the contract is executory on his part, and after coming of age, he chooses to keep that value, the contract shall be binding on him. 
    
    
      Further, the promisor, when of full age, having, by the most solemn act in life, directed his just debts to be paid, thereby waived his privilege of infancy, and in effect declared that all demands against his estate, for which he had received a valuable consideration, whether before or after his coming of age, should be discharged before his estate should go to the objects of his ‘bounty. Another construction would violate the plain and honest intentions of the testator, would do injustice to a meritorious creditor, and cause the testator himself to be guilty of a posthumous fraud.
    
      Hopkins for the defendants.
    
      
       3 Bac. Abr. 611, 612, Gwillim’s edit. - 3 Burr. 1719, 1794. — 1 D. & E. 648 — 2 D.& E. 766, 159. — 2 H. Black. 511.
    
   The action being continued nisi, the opinion of the Court was delivered in Boston, (at an adjourned session of the March term holden in July,) by

* Parker, J.

In this case, the note declared on was made during the minority of the testator, and it is not stated that the consideration for the promise was necessaries for his maintenance and support.

The action is attempted to be supported solely on the ground that the will, which was made after the testator attained to full age, contains a direction to pay his just debts; and it may be presumed, although it is not so stated, that the note declared on was given for a just debt. The only case analogous to this is in chancery, where, it appearing by the will that the infant devised his personal estate for the payment of his debts, particularly those he had set his hand to, it was decreed that a bond debt, contracted while he was an infant, should be paid.

But at common law, it has been settled, in a great variety of cases, that a direct promise, when of age, is necessary to establish a contract made during minority, and that a mere acknowledgment, as in cases' under the statute of limitations, will not have that effect; and it has further been decided that such promise must be made deliberately, and with a knowledge that the party is not liable by law.

We cannot consider the expression in this will as amounting to such a promise. It was made some time after the testator came of age, and it may have had reference to, debts contracted after that period. At any rate, it contains a direction to pay only just debts; and there is nothing in the case, from which we can infer that what was not in law a debt, could be considered by the testator as a just debt.

There are, undoubtedly, cases in which persons apparently of man’s estate, and engaging in business usually transacted by persons of ability to contract, lead unsuspecting creditors into difficulty, and oftentimes into distress; and these cases, individually considered, wear the appearancé of hardship.

. But the general policy of the principle of law, which authorizes an infant to avoid a contract, cannot be disputed.

* The experience of ages has proved its utility. The readiness of young persons to engage themselves in burdensome contracts without sufficient consideration, and of older ones to take advantage of their inexperience, would produce general mischief in the community, did not this wholesome principle interpose to produce a degree of caution in looking to the character of those with whom they deal; and although particular instances of hardship may be lamented, the general policy of the law must be enforced. Judgment in the case before the Court must be entered for the defendants. 
      
      
        Abr. Eg. Ca. 282.
     
      
      
        2 Esp. Rep. 628.
     
      
      5 Esp. Rep. 102. — Cro. Eliz. 700, 126. — 3 Esp. Rep. 159. — 1 D. & E. 648.
     
      
      
        a) [Vide dict. per Putnam, J., Ford vs. Philips, 1 Pick. Rep. 203. — But why should ignorance of the law avail an adult more in this than in other cases? — Stevens vs. Lynch, 12 East's Rep. 38. — Ed.]
     
      
      
         [Vide Jackson vs. Mayo, 11 Mass. Rep. 147. — Martin vs. Mayo, 10 Mass. Rep. 137. — Ed.]
     