
    Gerardine H. Hickok, Respondent, v. Elizabeth M. Bunting, and Jennie R. B. Moore, as Executrices, etc., of Ella F. Bunting, Deceased, Appellants.
    
      A written statement that a sum of money is held “in trust" for another—it creates no trust if there he no res — recital insufficient to show a consideration — question whether an instrument was the act of a decedent and had a consideration — testimony incompetent as relating to a transaction with a decedent—if received it will he considered— credibility of an interested witness.
    
    An instrument in the following form:
    “New York, December , 1893.
    “Having been cause of a money loss to my friend Gerardine H. Hickok, I have given her three thousand dollars. I hold this amount in trust for her, and one year after date or thereafter on demand I promise to pay to the order of Gerardine H. Hickok, her heirs or assigns, three thousand dollars, with interest.
    "1, 16, ’94. ELLA F. BUNTING.
    “216 East 12 St., N. Y.”
    does not create a trust, as there is no res to which the trust can attach, but it is valid as a promissory note.
    The recital in the instrument that the maker had been the cause of a money loss to the payee, is of itself insufficient to show the existence of a present legal consideration or that an enforcible obligation had ever existed.
    Evidence, given in an action brought upon the instrument after the death of the maker, which raises a question of fact whether the instrument, the body of which Was in the handwriting of the payee and the signature and date in the handwriting of the maker, was executed and delivered as the act of the deceased maker, and whether the same was supported by a sufficient consideration, considered.
    'Where evidence, inadmissible under section 829 of the Code of Civil Procedure is received without objection, it may be considered by the court.
    'The question of the credibility of an interested witness is for the jury to determine.
    Van Brunt, P. J., dissented.
    Appeal by the defendants, Elizabeth M. Bunting and another, ■as executrices, etc., of Ella F. Bunting, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of June, 1901, upon the verdict of a jury rendered by direction of the court..
    
      Herbert Parsons, for the appellants.
    
      Alfred B. Cruikshank, for the respondent.
   Hatch, J.:

This action was brought to recover upon an instrument in writing, of which the following is a copy :

.“ New York, December , 1893.
“ Having been cause of a money loss to my friend Gerardine H. Hiekok, I have given her three thousand dollars. I hold this amount in trust for her, and one year after date or thereafter on demand I promise to pay to the order of Gerardine H. Hiekok, her heirs or .assigns, three thousand dollars, with interest.
■“ 1, 16, ’94. ELLA F. BUNTING.
“ 216 East 12 St., N. Y.”

The instrument remained in the possession of the plaintiff after its alleged delivery to her, and, as she is the person now seeking to ■enforce the same against the estate of the deceased, the rights and liabilities created by it are not affected by the intervention of third parties. The instrument begins by reciting that the deceased had been the cause of a money loss to the plaintiff, for which she had given her $3,000. How such loss was occasioned is not expressed in the instrument, nor was it shown upon the trial; and while the instrument recites that the decedent has given the plaintiff $3,000, yet the proof upon the trial distinctly establishes that no-money passed between the parties, and at the time of the alleged, delivery of the instrument no money was present or delivered by the deceased to the plaintiff or to any one else. Except, therefore,, as this language may be construed as bearing upon a consideration for the instrument itself, it has no force. The language following-contains what would be a good declaration of trust, assuming that there was a res to which it could attach. It is not claimed by the-plaintiff, nor does the evidence establish that the deceased had at-the time of the execution of the instrument, assuming that she-executed it, $3,000 or any other sum of money, or other property representing it, which was set apart or in any manner placed so that, it could become the subject of a trust. In order to constitute a. trust there must be a res to which it can attach, and where that does-not exist there is nothing which can be made the subject of a trust., (Hamer v. Sidway, 124 N. Y. 538; Curry v. Powers, 70 id. 212.) It is, therefore, evident that this instrument did not constitute the-deceased a trustee of the plaintiff for the $3,000 or of any other sum. or property, and no liability attached to her estate in such capacity..

Following the declaration of trust the instrument contains a promise to pay one year after date, or on demand, to the order of the-plaintiff, her heirs or assigns, $3,000, with interest. There are no-words of limitation of this promise in the language preceding it.. The promise to pay is express, and is to the order of the payee, and! it contains ev.ery essential element to constitute a promissory note as-defined by the Negotiable Instruments Law (Laws of 1897, chap. 612, § 320), and by authority. (Carnwright v. Gray, 127 N. Y. 92.). It is quite probable that the note is negotiable and subject to the law merchant; but whether it is or not is of no consequence in the-present case, for the reason that the rights and liabilities of the-parties affected by it are in no wise changed, whether it be negotiable or non-negotiable; and as respects consideration and delivery,, it is subject to the same rules in either ease. (Carnwright v. Gray, supra.) The plaintiff was, therefore, correct in declaring upon the-, instrument as a promissory note.

If the instrument itself was the act of the deceased and was founded upon a good consideration, support would clearly exist for the direction of a verdict,' made by the court, in favor of the plaintiff for the amount secured to be paid by it. It was conceded upon the trial that the signature and the date attached to the instrument were in the handwriting of the deceased, and the court seems to have assumed that, as such fact was conceded, the liability of the deceased to pay the sum secured by it was established; and upon this theory he directed the jury to find a verdict for the sum secured to be paid. Unless the evidence given upon the trial raised a question ' of fact for the determination of the jury as to whether the instrument as a whole was the act of the deceased, founded upon a, good consideration, the direction of the court was clearly'right and the judgment entered thereon should be sustained.

The plaintiff was called as a witness and testified that she had money transactions with the deceased prior to December, 1893, and that between the eighteenth and twentieth of that month she was at the house of the deceased, and wrote the body of the note at her dictation and at her request, and that there was no one else present at the time when the note was written. Whether the note was signed at this time the witness does not state, but it was not then delivered, as the witness further testified that in January, 1894, but: upon what day she did not recollect, she received the instrument in a letter sent to her by the deceased. This is the only evidence in the case showing that the body of the instrument was written at the dictation of the deceased, and that -part of it is conceded to be in the handwriting of the plaintiff. It is evident that-the evidence disclosed a personal transaction bétween the plaintiff and the deceased, and was, therefore, inadmissible under section 829 of the Code of Civil Procedure. No objection, however, was interposed by the defendants to the admission of the testimony, and it, therefore, became proof in the case which the' court was entitled to consider. The plaintiff was, however, an interested witness and the question of her credibility was for the jury; it was.within their province to disbelieve her upon this subject. (Elwood v. Western Union Tel. Co., 45 N. Y. 549 ; Volkmar v. M. R. Co., 134 id. 413.) So far, therefore, as'this testimony tended to show that the instrument was the act of the deceased, it was clearly a question for the jury, as was also the evidence respecting its delivery.

In support of the fact of delivery the plaintiff called Garret H. Underhill, a nephew of plaintiff, and his wife, who gave evidence tending to show that the plaintiff received the instrument in a letter ■at Plainfield, N. J., where the witnesses then lived and where the plaintiff was then stopping. These witnesses, however, did not .see the note removed from the letter, nor were they able to state that they saw it on the day when the letter'was received. The wife' testified that the plaintiff received a great many letters, and she was not able to state that she saw the letter which contained the instrument opened, but both witnesses testified that, at about the time of receiving the note, plaintiff exhibited it to them. This is all the testimony for-the plaintiff tending to establish the delivery of the note, and it seems clear that upon this subject, if there were no other proof, a question of fact was presented for the jury. That plaintiff’s testi- ' mony upon this subject was subject to the jury’s scrutiny is clear beyond question; and the testimony' of the other two witnesses , when" closely examined, shows that in or about January, 1894, they saw this instrument at their house in Plainfield, N. J.; that it was the subject of conversation, and that a letter had been received by the plaintiff at about that time. Whether this instrument, came in that'letter or not, the witnesses are unable to state, and it.is evident that their information upon that subject is mainly derived from the declaration of the plaintiff at. the time, and the jury would have been so authorized to find. The question, therefore, of the delivery of the instrument, as the act of the-deceased, became á question for the jury upon this testimony, notwithstanding-the admission that the signature and date were in the handwriting of the deceased.

Upon this subject the defendants offered testimony tending to establish that the deceased and her sisters had loaned to the plaintiff $1,000, to secure which two daughters of the plaintiff executed and delivered their promissory note, which was indorsed by the plaintiff. The evidence of the sisters tended to establish the fact that this money was in fact loaned to the plaintiff and that she recognized the obligation to pay the same. ' This loan was made by the deceased and her sister over four years after the execution and delivery of the instrument, the subject of this action, and it still remains unpaid. Evidence was further given tending to show that the deceased and her sister Elizabeth were maiden ladies living in most intimate relationship and having a joint bank account; the surviving sister had never heard or knew of arty indebtedness of the deceased to the plaintiff, either moral or legal. It is true that the plaintiff gave evidence tending to show that the loan of the $1,000 was made to her daughters, and that she was an accommodation indorser thereon. Assuming that the jury would have been so authorized to find, the fact remains that the obligation of the deceased to pay the $3,000 note existed, and had long since become due. At the time when this loan was obtained the plaintiff had a right to demand enforcement of the obligation against the deceased, and this presents a pertinent circumstance for the jury as bearing upon the execution and delivery of the instrument, as well as the consideration for the same. In addition to this,, a number of letters were introduced, which passed between the plaintiff and the deceased and her sisters which constitute important evidence, in view of the fact that in none of them is there any suggestion of any indebtedness on the part of the deceased to the plaintiff, until after the 'death of the deceased, when plaintiff wrote to Elizabeth that the deceased had given her $3,000, which she very kindly called a personal obligation. In addition to this, the defendants called the expert Carvalho, who testified that the body of the note was in different ink from that of the signature and was of a comparatively younger date. Taking all of this testimony into consideration and the circumstances attending the transaction, it is. evident that a question of fact ivas fairly presented for the determination of the-jury as to whether the instrument was executed and delivered as the act of the deceased.

We are also of opinion that a question was presented as to whether the note was founded upon a good consideration, assuming it to have been delivered. It is undoubtedly the law that whether the instrument be negotiable or otherwise, the promise to pay raises the. presumption of consideration, even though it was not expressed(Carnwright v. Gray, supra.) Such presumption may, however,, be overthrown by proof, and when attacked by substantive testimony becomes a question of fact for the determination of a jury.. The evidence bearing upon the question of consideration, so far as: the plaintiff is concerned, is found in the recital of the instrument and in her testimony and declarations. The recital is that the deceased had been the cause of a money loss. This standing alone would be insufficient to show the existence of a present legal consideration or that an enforcible obligation had ever existed. It is well settled that a mere moral or conscientious obligation, unconnected with a prior legal or equitable claim, is not sufficient consideration to support an express promise. ( Wennall v. Adney, 3 Bos. & Pull. 247, note, 249; Smith v. Ware, 13 Johns. 257; Ehle v. Judson, 24 Wend. 97; Sternbergh v. Provoost, 13 Barb. 365.) The consideration which the law recognizes must be founded upon the existence of a legal or equitable obligation, which might at some time . have been enforced by legal remedies, or from which appear sufficient facts upon which to- found an estoppel denying right in the promisor to dispute his legal obligation. (O’Hara v. Robinson, 63 Hun, 569.) The testimony of the plaintiff adds little, if any, force to the recital contained in the instrument. She testified that she had had money transactions with the deceased, and that in the final conversation with her the deceased spoke of “ the subject of her feeling that she owed me — of her owing me money had been discussed several times before, indeed frequently, because it was a debt.” In a letter to the sister after the death of the deceased she speaks of it as a gift which the deceased “ kindly called . a personal obligation.” The daughter of the plaintiff testified that she had a conversation with the deceased in which the deceased upbraided her for not paying back the loan upon the note, which she had given; and the witness said, “ you need not make such a fuss about that thousand dollars ; you lost $3,000 of my mother’s,” and she said “ that has nothing whatever to do with that, that is between thy mother and myself.” If we eliminate the declaration of the plaintiff that the deceased owed her a debt, then we have nothing in the oral testimony or in the recital of the instrument to establish that there at any time existed a legal enforcible obligation against the deceased in favor of the plaintiff, or that' the facts were of such a character as would estop the deceased from denying her legal obligation for the payment of the money. The statement of the plaintiff that there existed a debt was subject, as we have already observed; to the scrutiny of the jury; and the daughter’s testimony, by reason of the relationship, was also subject to the same scrutiny; but if not, her statement did not show the requisite facts from which could be found consideration for the promise- to pay. Undoubtedly this testimony of a recognition of some sort, of liability was entitled to ■consideration in support of the presumption raised by the express promise to pay contained in the instrument, but this was not conclusive, and like the question of execution and delivery, was to be ■determined based upon a consideration of the testimony offered by the defendant and all of the circumstances disclosed by the evidence •arising out of the surroundings and the relation of the parties. So ■considered, we think a question of fact was fairly presented for the ■determination of the jury as to whether the instrument was executed and delivered as the act of the deceased and whether the same was founded upon a consideration sufficient to support it.

If these views are correct, it follows that the judgment should be reversed and a new trial granted, with costs to the appellants to abide the event.

O’Brien, Ingraham and McLaughlin, JJ., concurred; Van Brunt, P. J., dissented.

Judgment reversed, new trial ordered, costs to appellants to abide event.  