
    Ella S. Hadley, App’lt, v. Mary Jane Reed, Adm’rx, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890.)
    
    
      1. Bills and notes—Consideration.
    Natural love and affection do not constitute a sufficient consideration to support a promissory note; neither does the fact that the note was given to equalize the distribution of the-maker’s estate among her children furnish one. u
    
    2. Same.
    Defendant’s intestate, who was a married woman, in 1883 gave the note in suit to plaintiff, her daughter, and about the same time distributed money to her other children. It was found that such arrangement was made for the purpose of distributing her property among the children, with the consent of all, but all were not present at any time when it was talked over and there was no proof of anjr act or declaration on the part of defendant or the other children by which plaintiff could have been, misled. Held, that the note'was without consideration and that defendant was not estopped from denying its validity.
    Appeal from judgment dismissing complaint
    This is an action brought by one of six children against her sister as the administratrix of the estate of their mother, Jane Lu Gar, deceased, on a demand note made by the mother, to the order of the plaintiff, for $1,000 and interest, dated June 12, 1888.
    The court found that the note was given under the following circumstances: On June 12, 1888, Jane Lu Gar, the defendant’s intestate, desired to make distribution of her property among her six children, to wit: Mrs. Ella S. Hadley, the plaintiff, Mrs. Mary Jane Reed, the defendant, Mrs. Estelle West, John B. Lu Gar,. Mrs. W. C. Moore and Mrs. Norton. It was agreed that a portion of her property should be divided among her said children as follows: To her daughter, the plaintiff, Mrs. Hadley, $1,500 ; to her daughter, the defendant, Mary Jane Reed, $1,500 ; to her son, John B. Lu Gar, $1,500; to her daughter, Mrs. Norton, $1,500, and to her daughter, Mrs. Estelle West, $1,400. This distribution was with the consent, knowledge and acquiescence of all of said children. It was agreed that all were to receive their respective shares in cash, except the plaintiff, who consented to accept $500 in cash, and to take her mother’s promissory note for $1,000, the remainder of her share. This agreement was carried out, the cash paid, and the note given accordingly. Upon the note thus given and accepted, this action is brought The note has not been paid, though payment thereof has been demanded of the administratrix.
    Jane Lu Gar died August 2, 1885, intestate. Her husband was her administrator. But he died, and plaintiff was. appointed her administratrix January 18, 1888.
    . The court also found that said note was a gift to plaintiff; that moneys were paid to her by intestate at that time, and afterwards ; that no consideration was given for such note, and dismissed the complaint.
    
      Martin J. Keogh, for appl’t; John Chetwood, for resp’t.
   Pratt, J.

The law seems to be firmly settled that natural love and affection do not constitute a sufficient consideration to support, an executory contract. Whitaker v. Whitaker, 52 N. Y., 372; Fink v. Cox, Executor, 18 Johns., 145 Harris v. Clark, 3 N. Y., 93.

Starting from this point, the question arises whether there is anything to take the case from under this rule. The counsel for the appellant claims that the note was given to equalize the distribution of the maker’s estate among her children. But this would not be a sufficient consideration. Parish v. Stone, 14 Pick., Mass., 198.

Neither has the claim that the defendant and the other heirs are estopped from denying the validity of the note any merit.

The note was given by the maker of her own free will, and the consent of her other children was neither necessary, or asked or given; besides all the children were not present at any one time when the matter was talked over, and there is no proof of any act or declaration on the part of the defendant or any of her sisters which could be said to have misled the plaintiff. Again, the maker being a married woman at the inception of the note, there is no proof that she was carrying on a separate business, or that it was made for the benefit of her separate estate, or that it was for property furnished at the time. The note, therefore, being without consideration, was void. Linderman v. Farquharson, 101 N. Y., 434; Saratoga County Bank v. Pruyn, 90 id., 254.

The judgment must be affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.  