
    James M. Carter vs. Robert A. King, et al., Executors of William King.
    
      Single Bill — Consideration—Testamentary Paper— Nudum Pactum.
    
    An instrument under seal, in form a single bill, given and delivered by a grand-father to the husband of his grand-daughter, and intended as an advancement, payable one day after date, but with right of collection postponed until donor’s death: — Held, valid between the parties, and binding as an irrevocable contract upon the executors of the donor.
    An instrument intended to take effect at the donor’s death, but not having the formalities of a will, will not be held testamentary and therefore void, if it can operate in some other character which appears to have been intended.
    It is no objection to a bond or single bill, or even, it seems, to a promissory note, that it is made payable at the obligor's, or drawer’s death.
    The doctrine of nudum pactum is wholly inapplicable to sealed instruments.
    A defendant may always show in defence, in an action upon any instrument, failure of consideration either entire or partial, but where the action is upon an instrument under seal, as a bond or single bill, he cannot show that it was without any consideration at all — a consideration not being necessary to the validity of the instrument as between the parties themselves and their representatives.
    Creditors may, after the death of the obligor, show an entire want of consideration for the purpose of having the payment of the bond or single bill postponed to contracts founded upon valuable consideration ; semble.
    
    A single bill payable one day after date with right of collection postponed until the obligor’s death, bears interest from the day after its date.
    BEFORE O’NE ALL, J., AT ANDERSON, JULY, EXTRA TERM, 1857.
    Tbis was an action of debt on a single bill, a copy of wbicb is as follows:
    
      “ One day after date I promise to pay James M. Carter, tbe sum of one thousand dollars, it being a part of Ms wife’s part of my estate, wbicb note will be collected after my decease.
    “Witness my band and seal, tbis 30th day of November, 1846.
    WILLIAM KING, [l. s.] “Test: Jambs G-. BichaRdsoít.”
    The subscribing witness testified to the execution of the instrument, and that the deceased said, he gave the note, that his grand-daughter, who was the plaintiff’s wife and had been raised by him, should have a part of his estate.
    The plaintiff here closed, and defendants moved for a non-suit on the grounds:
    1. That the instrument was without consideration. And
    2. That it was testamentary. His Honor overruled the motion.
    The genuineness of the instrument and the character of the subscribing witness, were then assailed, and upon these points a number of witnesses were examined both for the defence and for the plaintiff. One of the witnesses testified, that he had seen the instrument in the possession of the plaintiff in 1846, which was long before the testator’s death.
    His Honor instructed the jury, that if they came to the conclusion that the paper was the genuine deed of the testator, tbe plaintiff was entitled to recover, and they should find for him the amount of the note with interest from the day after its date. They found accordingly.
    The defendants appealed and now moved this Court for non-suit, and failing in that motion then for a new trial, on the grounds:
    
      
      For Non-suit.
    
    1. Because tbe paper sued on was without consideration, a mere nudum pactum and void, and contained plenary evidence on its face of tbe fact.
    2. Because an undertaking to pay money after one’s death, in consideration of a distributive share of such person’s estate, is an undertaking without consideration, is testamentary in its character, and void, whether it be under seal or without seal.
    
      For a New Trial.
    
    1. Because, for the reasons, stated in the above grounds, the plaintiff was not entitled to recover, and the verdict should have been for the defendants.
    2. Because, even if the. plaintiff was' entitled to recover, his Honor erred in instructing the jury to allow interest one day after the date of the paper, instead of from the death of the testator, as to the time of which there was no proof, and the verdict is wrong in that particular at least.
    3. Because the paper sued on was not genuine, but fictitious and fraudulent, as was proved on the trial, and the verdict was against the evidence.
    Wilkes, Sullivan, for appellants.
    The instrument sued on, if viewed as a contract, is voidable, because it was without sufficient consideration. The doctrine of nudum pactum is said to be applicable only to parol or unsealed contracts, but that only means that in suits upon such instruments the plaintiff must aver and prove a valuable consideration; whereas, if the instrument is under seal,' the burden is shifted to the defendant, and he must aver want of consideration and prove it. Mattock vs. Gibson, 8 Rich. 437. That is the true doctrine. The consideration may always be inquired into no matter what may be the form or character of the instrument. The instrument sued on in this case is therefore voidable, even though payment had not been postponed until the death of the donor. But payment here was postponed until that time, and the instrument is clearly testamentary. The promise is executory, the paper itself vests no title in the donee — it is a mere gift in futuro, which is nothing more than a promise to give, and is void as a will for want of proper attestation. They cited, Story on Prom. Notes, § 184, 187 ; Hall vs. Howard, Rice, 810; Finhvs. Cox, 18 Johns. R. 145, 149; Wiggins vs. Vaught, Chev. 98; Pries-ter vs. Priester, Rich. Eq. Cases, 26 ; 1 Wms. on Ex’ors, 59 ; 2 Yes. Jr. 230 ; 2 Yes. Jr. 204, note 2 ; 19 Conn. 18; 5 Bin-490 ; 2 Hagg. 235.
    
      Harrison, McGowan, contra.
    The cases referred to where similar gifts were held invalid were upon promissory notes, and the consideration of that class of instruments may always be inquired into as between the original parties. Here the action is upon a sealed note and is against executors, who represent the donor, and cannot question its validity if he could not. If it can only operate as a testamentary paper then it is void for want of three witnesses. But it is not necessarily testamentary, because it is voluntary, and because payment is postponed until after donor’s death. A voluntary gift of a negro, if intended to be irrevocable, is valid, though the donor reserves the use to himself during life; and why may not such a gift of money also be valid, if intended to be irrevocable ? Such instruments have been held valid in England and binding upon the executor. 5 T. R. 381; 3 T. R. 392; 3 Atk. 539; 1 Atk. 292; 3 P. Wms. 222. When no witness was required to a testament, almost any paper to be performed at the maker’s death, might be proved as a testament, ut res magis valeat guarn 
      
      pereat, if it could not operate in some other character; and now whenever such an instrument cannot be admitted to probate in the Court of Ordinary because not legally attested as a will, the Court should hold it valid as an instrument inter vivos, if it can possibly so operate. Then is want of consideration a fatal objection to a sealed note or bond ? It is not. Such an instrument requires no consideration. The defendant may show in defence that the consideration was illegal, or he may show that it has failed, but he cannot show an entire want of consideration and that is the attempt here. They further cited 2 Blac. Com. 445 ; 1 Com. on Con. 9; 6 Johns. Ch. 306 ; 1 Yes. Sr. 514 ; 2 Brok. 155.
   The opinion of the Court was delivered by

Wardlaw, J.

The verdict has established that the paper, subject of this suit, is a genuine instrument, which William King, in his lifetime, signed, sealed and delivered to the plaintiff.

The terms of the instrument show that it was probably intended as an advancement to the husband of a granddaughter, who, if the maker of the instrument had died intestate, would have been entitled to a distributive share of his estate. Certainly, there appears to have been no consideration moving the maker, besides blood and affection, and the instrument may be treated as altogether voluntary. It seems to promise payment one day after its date, but plainly restricts collection before the maker’s death. It then contemplated payment by his executors or administrators, and the important question of the case is whether it is not testamentary. If testamentary, not having been attested by three witnesses as our Act of 1824 requires all wills of personalty to be, it is void.

In argument for the plaintiff, reference has been made to cases, where by deed, a gift was made of negroes, with the reservation by tbe donor of a right to retain and use them during bis life: such as Alexander vs. Burnet, 5 Rich. 189, and Jaggers vs. Estes, 2 Strob. Eq. 343: — and it has been supposed that in this case as in those there was the immediate gift of a present interest whose enjoyment was postponed. But in any of those cases the interest, which was vested in the donee, would have enabled him, at the donor’s death, to take possession of the negroes without the assent of the donor’s executor; — whereas in the case before ns, even if the plaintiff, to whom the instrument in question was given, could have assigned his interest, resort to the executors for payment could in no way have been avoided; and there is therefore more plausibility in saying that this instrument, although in form a deed, was only a direction for executors to pay, — a mere ambulatory expression of what the maker of it, at its date, intended concerning the disposition to be made, after his death, of a portion of his estate.

We must then look further. There is no prescribed form for a will, and cases have occurred, in the Ecclesiastical Courts of England, of papers very unlike ordinary wills, which have been admitted to probate. In Masterman vs. Maberly, 2 Hagg. 235, Sir John Nicholl mentions instances of Scotch conveyances, deeds of gift, bonds, promissory notes, assignments, endorsements, receipts, letters and marriage articles: and he holds that a paper not intended to be a will, but an instrument of a different shape, if it cannot operate in the latter character, may operate in the former. This, it will be observed, was held under a law which required no formality in the execution of a will of personalty; and in applying it to our law, we may say that if an instrument can operate in some other character, which appears to have been intended, it will not be held testamentary; and especially not, when it has not the requisite formalities of a will, and holding it testamentary would be declaring it void. On the other hand, we must acknowledge that when an instrument has the essential nature of a testamentary disposi" tion, in being revocable and inoperative until the death of its maker, it should not be allowed to prevail, according to its shape as an instrument inter vivos, merely because it cannot take effect as a will for want of due formalities. An irrevocable expression of intention should be aided, but the statutes concerning wills should not be evaded.

The delivery of the paper in question relieves it from the objections which were considered in the cases of Disher vs. Disher, 1 P. Wms. 204; Newland vs. Gilham, 1 P. Wms. 577 ; Toner vs. Taggart, 5 Binn. 490, and other cases cited in the one last mentioned.

That the payment was appointed to be made at the death of the obligor, is not, of itself, an objection to the paper’s being considered an irrevocable obligation. Even promissory notes for valuable consideration payable at the death of the maker or of a third’person have been held good. Stra. 1217 ; Wales, 393 ; 19 Conn. 18 ; 10 Adol. & Ell. 222 and on bonds so payable many instances of recovery may be found. (3 Term, 372 ; 5 Term, 381; 8 Term, 483.)

The want of consideration is the objection which has been mainly urged on the part of the defendants.

In our case of Hall vs. Howard, Rice, 310, upon a paper much like the one now in question, which had been delivered by the maker in his lifetime, an action against his executors failed in 1839. That paper had the words “witness my hand and seal,” but no seal being (as was thought) visible, it was sued on as a promissory note, and'was held to be without consideration and void — “ a mere naked revocable promise” — nudum pactum. We do not know what might have been the result there, if the plaintiff had treated the paper as a specialty, under the view that any blot may be a seal sufficient after the apposui sigillum, or that the accidental erasure of the seal may be presumed where the intention to seal is manifest. The case, under the head pertinent to the matter now in hand, is authority for the position that a promissory note is void between the original parties to it, when want of consideration has been shown. That position is well vindicated in another case, of circumstances somewhat similar, which was decided in our Court of Equity in 1831. Priester vs. Priester, Rich. Eq. Cases, 33.

But the paper now before us is not a promissory note, nor has it been so treated by the plaintiff. This action is debt on a specialty, and the single bill in suit is a bond without penalty — an obligation under seal acknowledging indebtedness — a covenant to pay according to stipulation. To such an instrument the doctrine of nudum pactum is wholly inapplicable. (Plow. 309.) The law gives no action on a parol promise, which is not sustained by a valuable consideration. (Ckitt. on Oont. 27.) Ever since the case of Pillaus vs. Van Minch, 3 Burr. 1671, was overruled by that of Earn vs. Hughes, 7 Term, 350, the division of parol contracts, in regard to consideration, into written and unwritten, has been exploded. Bills of exchange and promissory notes, for reasons of commercial policy, are held so far to import a consideration, that, in suits on them, no consideration need be averred, and when they have been duly negotiated and are in the hands of innocent indorsees or bearers, want of consideration will not avail against them : but between the original parties they are like all other parol contracts, subject to the objection that there is no consideration, or none but blood and affection, and by proof of this the presumption of consideration which the signing of them creates, is rebutted. Bremar vs. Singleton, Harp. 211; 5 Barn. & Cres. 501.

A bond shown to be without consideration is thereby postponed in the distribution of assets to debts founded on valuable consideration, but still it is valid between the parties and their representatives. (1 Atk. 292, 625; 3 Atk. 541; 3 Pr. Wms. 222; 1 Ves. Sen. 514.)

In the ease of Matlock vs. Gibson, 8 Rich. 439, decided in 1832, there are words hastily used which seem to countenance the notion that sealing merely throws upon him who would object to a specialty the burden of showing that it had no consideration, and that this when shown is just as available against a bond as against a note of hand or other parol contract. These words are proper in their application to the subject then treated of, the right of a defendant, in an action on a bond, to show failure of consideration in defence; and to such subject they must be confined. Our Court has gone far in permitting inquiry into the consideration of a specialty, in defence of an action brought to enforce its obligation, and in permitting a defendant, for prevention of circuity, to show an entire or a partial failure of consideration, or any damages growing out of the contract from which the specialty proceeded. But there is a great difference between the objection to an obligation, that the consideration which really moved it has failed, and the objection that it never had a consideration'. If want of consideration appeared, the inference would be that, for that reason, it was put into such form, that the deliberation implied from the seal should stand in the room of consideration. How could any deed of gift, or covenant to stand seized ever prevail, if the same want of valuable consideration, which renders a parol promise void, would avail to defeat a specialty ?

The Court is satisfied that the single bill in question was, when delivered, intended to be an irrevocable obligation, and that nothing which has been urged against it, requires that it should be prevented from operating in the character which was designedly given to it.

Upon the question of interest, it was a just construction of the paper to hold that although the payment was deferred till tbe obligor’s death, one day after date was fixed as tbe time at wbiob tbe obligee’s right to tbe money should so far attach as to carry interest.

Tbe motion is dismissed.

O’Neall, Withers, Whither, Gloyer and Mukro, JJ., concurred.

Motion dismissed.  