
    McNeal, Exr. v. Pierce, Admr.
    
      Legacy of sum for care of son — Does not imply debt, when— Pleaded in action, barred by limitation, when — Effect of death of legatee before testator — Interpretation of wills — Statute of limitations.
    
    1. A legacy reciting that it is “in consideration of her care for my invalid mother many years preceding her death, and also her care of my infant son” does not imply a debt but a bounty. It is not an acknowledgment of a legal obligation and when pleaded in an action, barred by the statute of limitations, to recover for such services, does not remove the bar of the statute.
    2. A legacy given in payment of a debt, by the express terms of the will, does not lapse by the death of the legatee before the testator, but when by the terms of the will it appears that the intention of the testator was to confer a bounty it is not competent to show a different intent and to prevent a lapse by proof that the -legacy was given in payment of a debt. ,
    (No. 9235
    Decided October 31, 1905.)
    Error to the Circuit Court of Marion county.
    The tenth item of the will of William P. Hazen, executed in 1896, is as follows: ‘ ‘ Tenth. I give and bequeath to my niece, Miss Mary Pierce, daughter of my sister, Emily Pierce, of Middlefield, Geauga county, Ohio, $5,000.00, the same being in consideration of her care of my invalid mother many years preceding her death, and also her care of my infant son, Martin L. Hazen, after the death of his mother. ’ ’
    The legatee died without issue in the lifetime of the testator. Suit was brought by the administrator of the legatee against the executor to recover the. amount of the legacy. It is averred in the petition that in 1858 the testator was indebted to the legatee for services then and theretofore rendered by her at his request in the care of his invalid mother and of his infant son, which were of the value of $5,000.00.
    The tenth item of the will is then set out as an acknowledgment of the debt in writing and signed by the párty to be charged to remove the bar of the-statute of limitations. The court of common pleas sustained a general demurrer to the petition. The circuit court reversed.
    
      Messrs. J. F. McNeal and L. B. McNeal, attorneys, for plaintiff in error.
    1. The facts pleaded do not show a written acknowledgment of a debt.
    This is true, because:
    
      (a) The acknowledgment relied on and pleaded is a legacy, a bequest, a gift, and not an acknowledgment of a debt or a promise to pay a debt.
    
    The definition of the word “legacy” should be sufficient to sustain our proposition: “A legacy is a bequest, or gift, of goods and chattels- by will or testament.” Orton v. Orton, 3 Key. (N. Y.), 488;. 2 Williams’ Executors, 947; 5 T. R., 716; 1 Burr., 268; 7 Ves., 391; 2 Bouv. Dic., 20.
    • (b) The language used is insufficient to constitute an acknowledgment.
    
    The acknowledgment must be clear and explicit in admitting that there is an indebtedness, the particular debt, and that it is due and unpaid. We cite a few authorities as to the elements necessary in an acknowledgment of a barred debt: Webster v. Newbold, 82 Am. Dec., 487 (41 Pa. St., 482); McCormick v. Brown, 95 Am. Dec., 170 (36 Cal., 180); Harlan v. Bernie, 76 Am. Dec., 428 (22 Ark., 219). Among the very late cases are the following: Manchester v. Braedner, 1 Am. St., 829 (107 N. Y., 346); Macrum 
      v. Marshall, 14 Am. St., 730 (129 Pa. St., 506); Ward v. Jack, 51 Am. St., 744 (172 Pa. St., 416); see also note, 24 Am. St., 496.
    2. No recovery can be had of the legacy, as a legacy, because it lapsed. In Ohio, legacies lapse under statutory provision therefor (sec. 5971, Rev. Stat.), and not under the rules of common Icm.
    
    The foregoing is the fiat, judgment, decree of the legislature on the subject of the lapse of legacies, and the fact that certain pecuniary legacies did not lapse, under the rules of the common law, can not change the same in the smallest degree.
    If the legislature intended there should be exceptions, other than that provided for, to the application of its rule as to the lapsing of legacies, it would have provided for the exceptions. The case at bar not falling within the exception, it can not well be made an exception by a court. Earnfit v. Winans, 3 Ohio, 135.
    
      Mr. N. H. Bostwick and Messrs. Grissinger & Guthery, attorneys for defendants in error.
    
      First. We think, on the facts stated, we can, recover on the claim for services performed.
    
      Second. On the facts stated we can recover the $5,000.00 as a legacy. The recovery on one state of facts will, of course, be a bar to a recovery on the other.
    We will consider first our right to recover for services performed.
    For the care and support of his infant child, Wm. P. Hazen was legally bound to pay, whether he contracted to do so or not the law puts that burden upon him, and if Mary Pierce cared for his child, and especially if she did it at his request and on his promise to pay therefor, he is legally hound to pay for the same what it is worth. The fact that she rendered the service raises the implied obligation to pay. Linn v. Ross, 10 Ohio, 412; Harrison v. Gotleib, 2 Circ. Dec., 109; 3 C. C. R., 191; Dunn v. Dunn, 10 Dec. Re., 765; 23 W. L. B., 328; 1 Beach on Contracts, sec. 650; 17 Am. & Eng. Ency. Law, 348, 351; Allen v. Collins, 35 Am. Rep., 419; Bachman v. Roller, 40 Am. Rep., 97; DeFreest v. Warner, 50 Am. Rep., 657.
    A.nd if he fixes the prices himself, that he is to pay, after the lapse of many years or at his death, who has a right to dispute it, or claim they were not then of the value he placed upon them? I think no one will seriously deny that the petition states facts sufficient to show that Vm. P. Hazen was indebted to Mary Pierce, and that the debt was never paid.
    Now, has the administrator a right to recover the amount of that indebtedness?
    The defendant says no, because the petition shows his right of action is barred by the statute of limitations. The statute of limitations on which he .relies is section 4979, Revised Statutes.
    But say Mary Pierce’s right of action did accrue at the time she rendered the services and by lapse of time had become barred. Revised Statutes, section 4992, provides that:
    
      First. When payment has been made upon a,ny demand founded on contract.
    
      Second. Or a written acknowledgment therefor.
    
      Third. Or promise to pay the same has been made and signed by the party to he charged; an action may be brought thereon within the time herein limited after such payment, acknowledgment or promise.
    
      Under the above section an action may be brought on the original demand by averring the acknowledgment. Coffin v. Secor, 40 Ohio St., 637.
    And there is no doubt but that we have a right of action on the new promise to pay, founded upon the original consideration. Haymaker v. Haymaker, 4 Ohio St., 272.
    
      There can be no doubt that Wm. P. Hazen intended this acknowledgment of his indebtedness to Mary Pierce that he so solemnly made in his will should be communicated to Mary Pierce; it was pat there in the ivill for that picrpose.
    
    An acknowledgment 'made to a stranger, in the absence of the plaintiff, will take a demand out of the statute. Woodbridge v. Allen, 12 Metc., 470.
    To take a demand out of the statute of limitations, direct and positive proof of an acknowledgment or new promise in any set form of words is not required, but they may be inferred from facts without words. Whitney v. Bigelow, 4 Pick., 110.
    Where debts are barred by the statute of limitations a specific provision in the will for their payment would seem to have the effect to revive them, and make them payable by the executor, notwithstanding the creditor might decease before the testator. 2 Redfield on Law of Wills, 161; Page on Wills, sec. 797; Jackson’s Succession, 47 La., 1089. Under our code we do not have to elect in a law suit, but may set forth all the facts. Gartner v. Corwine, 57 Ohio St., 246.
    We have a right to recover the legacy in this action. The legacy became due in one year after the executor qualified. Section 6128, Rev. Stat., amended 93 O. L., 93; sec. 6211, Rev. Stat.; Page on Wills, sec. 803. Assets in hands of executor. Webster v. Bible 
      
      Soc., 50 Ohio St., 1; Gray v. Case School, 62 Ohio St., 1.
    The legacy has not lapsed; at common law a legacy will lapse hy reason of the death of the beneficiary before the testator. But a legacy given in payment of a debt will not lapse because of the death of the legatee before the testator. 18 Am. & Eng. Ency. Law (2 ed.), 749 and note; Ward v. Bush, 45 Atl. Rep., 534. When a legacy was given upon a valuable consideration in payment of a debt of testator it did not lapse at common law. Page on Wills, sec. 739.
    If a barred demand is sufficient consideration to support a promise to pay, it is also a good consideration for a legacy. 2 Redfield on Law of Wills, 161.
    Our statute does not enlarge but modifies the common law doctrine of lapse. Page on Wills, sec. 742 ; sec. 5971, Rev. Stat.; Woolley v. Paxson, 46 Ohio St., 307.
    There can be no abatement of this legacy, and although we have alleged it, we do not have to prove that there are sufficient assets in hands of executor 'to pay it, for the legacy is in satisfaction of a debt. Page on Wills, sec. 776.
    There is no doubt but what there is a right of action on the new promise or acknowledgment, founded upon the original consideration. Hill v. Henry, 17 Ohio, 9.
   Summers, J.

Two questions are presented: first, whether the will removed the' bar of the statute of limitations, and, second, whether the legacy lapsed.

The claim for services is barred unless the will is an acknowledgment. The natural and ordinary meaning of the words “in consideration of” in the connection used is not compensation but a mark or token of affection or appreciation. The testator does not acknowledge that there ever was any liability, debt, or claim. He acknowledges merely the fact that his niece did care for his invalid mother and for his infant son, and feeling grateful therefor, in recognition or consideration of the fact, he gives her $5,000.00. The services may have been paid for or rendered gratuitously. He acknowledges a debt of gratitude, not a legal obligation, and he does not direct the payment of a debt but confers a bounty. In Duncan v. Franklin Township, 43 N. J. Eq., 143, where the item of the will under consideration read as follows: “I give and bequeath to Henry Benson Duncan, for his services in assisting me at different times, the sum of $2,000.00,” it is said in the opinion (145) “the expression ‘for his services in assisting me at different times,’ does not, standing alone, import an indebtedness from her to the legatee for which payment may be exacted by process of law.. For aught that appears to the contrary, the services may have been rendered gratuitously and the legacy may have been given in grateful recognition of that.”

The second question is whether the facts set out in the petition state a cause of action for the recovery of the legacy.

• It is conceded that the general rule is that a legacy lapses when the legatee dies before the testator and that section 5971, Revised Statutes, enacted to prevent mischief from the operation of the rule, does not apply; but it is contended that a legacy does not lapse when it is given to pay a debt, citing Ward v. Bush, 59 N. J. Eq., 144.

The cases that hold that a legacy given in payment of a debt does not lapse do so for the reason that such is the manifest intention of the testator. That is the ground of the decision in Williamson v. Naylor, 3 Younge & Coll., 208. There it is held that certain creditors, whose claims were barred but who were named in the will which provided that a certain part of the estate should be divided among them, should not be considered as legatees but rather as creditors and consequently that the representatives of such as died in the testator’s lifetime were entitled to the benefit of the will. In the note to that case, it appears that Lord Lyndhurst, C. B., in disposing of the matter when it was before him said: “I cannot consider this as a mere voluntary bounty on the part of the testator, but we must consider that the testator meant this money to be applied in satisfaction, or part satisfaction, of an obligation in reduction of his debts, which though they could not be enforced against him at law, were, nevertheless, subsisting debts.” * * * “In this case, the testator has manifested an anxious desire to fulfill his just obligations ; and it was plainly his intention not to make a gift to the persons named in the schedule but to waive the legal bar to the recovery of his debts.” In Philips v. Philips, 3 Hare, 281, where the testator gave the residue of his estate to trustees, upon trust, to divide the same among certain creditors, it is held that: “The shares attributed to the debts of creditors who uied in the lifetime of the testator do not lapse by their death.” Again, “that the testator must be considered as proceeding upon a mixed principle of bounty and obligation; that the will must be read as, to some extent, directing payment.of debts.” The vice chancellor says (292): “In coming to the conclusion that the representatives of the creditors who died in the testator’s lifetime are entitled to claim, I consider that I follow the case of Williamson v. Naylor, that I am giving effect to the trusts of the will, and that I am doing that which the conscience of the testator led him to do, in discharging pro tanto his obligations to his creditors, notwithstanding the bar of the statute. If that were his intention, which, on the face of the will, and on the authority of Williamson v. Naylor, I will assume, I cannot suppose that the testator contemplated the depriving of the benefit given by the will those creditors who might happen to die between the date of his will and his death.” Again (300), “Another observation strongly in favor of Williamson v. Naylor is this: if the claimants had been treated as legatees, and not as creditors, the rights of the creditors to the benefit of the trust might have lapsed by his death in the lifetime of the testator. This could not have been in accordance with the intention of the testator.”

In Turner v. Martin, 7 DeG. M. & G., 429, 432, the Lord Chancellor says: “The object of the testator was to do that which was honest and just, namely, to pay those creditors in full who had proved against the joint estate of his father and himself; that object could not have been attained if his intended bounty was to be limited to those creditors only who might happen to survive him, he having lived twenty-nine years after the debts were proved.”

In the present case the claim is barred. The testator does not acknowledge it. In law it is no debt and it cannot be said that the intention of the testator was to discharge an obligation and not to confer a bounty. The intention of the testator must be given effect according to what appears upon the face of the will. There is no ambiguity, and evidence to prove an intention different than that implied in the terms of the will would be incompetent. Comfort v. Mather, 2 W. & S., 450.

• The judgment of the circuit court is. reversed and that of the common pleas is affirmed.

Reversed.

Davis, C. J., Shauck and Crew, JJ., concur.  