
    * Hannah Bowers versus Isaac Hurd, Administrator, &c.
    A woman, possessed of a sum of money, and desirous of leaving a legacy to a friend to whom she thought herself under obligation, and desirous also to avoid the expense attending a will, made a promissory note, payable to that friend, which she placed in the hands of a third person, to be by him delivered over to the promisee after her decease; she recognized the transaction in hei last sickness, and put into the hands of a person about her personal securities for the payment of her debts and funeral charges, and especially the said promissory note; — it was holden, that the promisee was legally entitled to the contents of the note, in an action against the administrator of the promisor, hei estate being solvent
    This was assumpsit, upon a promissory note for 100 dollars made by Sarah Thompson, the defendant’s intestate, to the plaintiff The cause was tried upon the general issue, before the late chief justice, at the sittings here after the last October term.
    The circumstances under which the note was made were stated in the deposition of a Mr. Duncan, of Haverhill, in the county of Essex, who testified that, in June, .1807, Mrs. Thompson, the intestate, belonging to Billerica, in this county, and then being on a visit at the witness’s house, several times expressed a wish to leave certain -egacies to certain of her particular friends and acquaintance, out of the money left her at her disposal by her then late husband, being about 2000 dollars; that she named the plaintiff, with two other females, as the persons in her mind; and wishing to avoid the expense attending a will, proposed to give the legacies by notes of hand; that the witness accordingly wrote the note declared on in this action, and two other notes to the two other persons named by the intestate, each of the notes being made payable in one year from the date, with interest after that time until paid ; that the intestate left the notes in the witness’s keeping, to be delivered, after her decease, to the persons to whom they were respectively made payable, which was accordingly done by the witness. The witness further said drat the intestate repeatedly expressed her desire to leave something to the plaintiff, as she had been very attentive to her; and from the intestate’s strong expressions of the obligation she felt herself under to leave something to the plaintiff, the witness concluded that she had frequently attended the intestate when out of health, &c.
    It was also proved that, in the last sickness of the intestate, and when her mind was unimpaired, she recognized the note in question and the two others above referred to; that she placed in the hands of a Mr.-personal securities to a large amount, directing him to see that her debts * and funeral ex- [ * 428 J penses were paid, and especially enjoined upon him to pay her legacies, which she explained to mean the notes she had placed in the hands of Mr. Duncan.
    
    There was an attempt to prove a consideration in the way of services and kindnesses performed by the plaintiff towards the intestate ; but it being clear that the note was intended in lieu of a legacy, and not in satisfaction of a debt, and it not appearing that the services were rendered in expectation of payment, the chief justice directed the jury to lay that evidence out of the case, and that a verdict might notwithstanding be found for the plaintiff. A verdict was so returned, and the defendant’s counsel moved for a new trial, alleging that the note, made under the circumstances aforesaid, was not recoverable at law.
    
      Hoare, for the defendant.
    Here was no consideration either of benefit to the promisor, or of detriment to the promisee; one of which is necessary to give validity to every promise.  This is not a legacy, for the deceased made no will. It is not donatio causa mortis, for to that a delivery is necessary. 
    
    
      Locke for the plaintiff.
    The action stood continued nisi for advisement, and at the next March term in Suffolk the Court gave judgment for the plaintiff.
    
      
       4 East, 463, Jones vs. Ashburnham. — See also Rann. & Al. vs. Hughes, 7 D. & E. 350, in notis.
      
    
    
      
      
        Swinb. on Wills, 56, in notis, cites Vrec. in Chans. 269 - 3 P. Will. 356, 357
    
   Parker, J.

The facts disclosed in the report, and the deposition referred to, show a strong claim in equity on the part of the plaintiff. The deceased intended to make a small compensation to her, for a series of kindness and attention, which, although not the foundation of any legal claim against her in her lifetime, formed a good moral consideration for such compensation ; and it was more honorable in her to endeavor to effect this after her decease, than in her representatives to attempt to defeat that intention. She wished to avoid the expense of making and proving a will, having but few friends for whom she wished to provide, and being content that [ * 429 ] her property, after deducting a few small sums in * lieu of legacies, should go to her legal representatives. By the advice of a friend, she made the promissory note in question, and two others with a similar view, with directions that they should be delivered over at her decease; and on her death-bed she recognized and ratified these gifts, and took peculiar pains that they should become effectual.

The administrator, probably urged by those who succeeded to the property of his intestate, disputes the payment of this note, on the ground that it was given without consideration.

We cannot consider it as donatio causa mortis, as was suggested at the bar, for that must be complete at the time, by a delivery of the thing given. We must therefore determine the general question, whether a note of hand, given under these circumstances, is recoverable by the party to whom it is made payable. And we think that it is so recoverable when, the estate being solvent, there is no interest of creditors to contend with.

No fraud, practice, or even importunity, is suggested to have been used by the plaintiff towards the deceased; nor does it appear that she knew of this exhibition of good-will towards her, until after the decease of her benefactor. She then had this note delivered over to her, wherein the promisor acknowledged she had received a valuable consideration, and promised to pay this sum at a time fixed, Now, we do not admit that, when one voluntarily makes a written promise to another to pay a sum of money, the promise can be avoided merely by proving there was no legal and valuable consideration subsisting at the time; any more than, if he actually paid over the amount of such note, he can recover it back again because he repents of his generosity. He has, indeed, precluded himself and his representatives from denying a consideration, when he has under his hand acknowledged one. That consideration may not have been of a nature to support an indebitatus assumpsit, upon an implied promise ; but may, nevertheless, have been a just and adequate foundation of his promise; and as the circumstances * of the transaction may be wholly unknown to any but [ * 430 ] the immediate parties, there is no reason for permitting an executor or administrator to dispute what the deceased neve questioned in his lifetime, and never intended should be questionea after his death.

We are satisfied that none of the decisions respecting the avoidance of notes or other written promises, for want of consideration, are impeached by our decision in this case. A careful examination will discover that, in all those cases, the ground taken in defence is, not that there was originally no consideration, contrary to the express admission of the promisor, but that the consideration had failed, or that it rested in mistake or misapprehension; what the parties supposed to be a consideration, turning out, in fact, to be none. It was on this principle that the case of Boutelle & Al vs. Cowdin, admr., was decided. In those cases, the promisor is always permitted, against the party with whom he contracted, to show the mistake, or the failure of what was supposed to be substantial. This does not contradict his own acknowledgment of value received, but sets up an equitable claim of discharge, upon the ground that both parties were deceived in the contract. Fraud, illegality, and imposition, are also proper defences against actions to enforce such promises, depending upon other principles.

Upon the whole, we are satisfied that the verdict in this case is right; and judgment must be entered upon it. 
      
       9 Mass. Rep. 254.
     
      
      
         [What is here said by the Court respecting the inadmissibility of parol evidence, to show a want of consideration between the original parties to a promissory note purporting to be for value received, has since been overruled, (Hill vs. Buckminster, 5 Pick. 391; and see Holliday vs. Atkinson, 8 Dowl. Ryl. 163. — Fink vs. Cox, 18 Johns. 145. — Pearson vs Pearson, 7 Johns. 26; and See Boutelle vs. Cowdin, 9 Mass. Rep. 254;) though the Court say " the case itself was rightly decided on other principles; ” upon what principles they have not informed us, and we are left to conjecture. "Whether it could have effect as a donatio mortis causa may be questionable, — Miller vs. Miller, 3 P. Williams, 356. — Tate vs. Hibbert, 2 Ves. Jr. 120.—4 Br. Ch C. 286. — Ward vs. Turner, 2 Ves. 442. — Woodbridge vs. Spooner, 1 Chit. R. 661 pet Abbot, C. J.— Walter vs. Hodges, 2 Swanst. 98.— Gardner vs. Parker, 3 Mad. 
        185. — Lowndes, Leg. 452.— Prest. Leg. 154—157.— Ward, Leg. 58. — 1 Atkinson, Con. 266. — Sed vide Wright vs. Wright, 1 Cowen, 598. — The Court, however, said they could not consider it good as such. And in Holliday vs. Atkinson, (ubi sup.) Abbot, C. J., said, " A promissory note is not good as a donatio mortis causa.” The case can, then, be maintained only on the ground that there was a good consideration for the note, and that the delivery was absolute. But affection, friendship, or a desire to avoid the expense of a will, are no good considerations. — Holliday vs. Atkinson, ubi sup. — Ed.]
     