
    Martha E. Starr v. Clayton Starr, Executor of Philip M. Starr, deceased.
    'The gift of the maker’s own note is the delivery of a promise only, and not of the thing promised; and upon the death of the maker, leaving the promise unfulfilled, the gift fails.
    ■Such gift being without consideration, no recovery can be had on the note against the executor of the maker.
    'The ease of Hamor v. Moore’s Adm’rs, 8 Ohio St. 239, followed and approved.
    *ERRORto the court of common pleas of Athens county. Ee¡served in the district court.
    On the 8th day of October, 1857, the plaintiff filed in the court -of common, pleas of Athens county, her petition against the defendant, stating that Philip M. Starr, in his lifetime, made and delivered to plaintiff his certain promissory note in writing for the payment, to plaintiff or bearer, of five thousand dollars on demand. ‘That said Philip M. Starr, after the delivery of the note, departed this life, .leaving it unpaid, and that demand had been made of the •defendant, as his executor, for the allowance or payment of the note, and that he refused to do either. Whereupon judgment is .asked for the amount of the note and interest.
    To this petition the defendant answered:
    1. That his said testator, Philip M. Starr, never made the note in the petition mentioned, and never assumed and promised as therein stated.
    2. That if said testator did make said note, the same was made ■without any consideration, or value whatever, moving from the ■plaintiff to said testator.
    At the May term, 1858, of said court, the cause was submitted to the court, and the court found “ that the said promissory note was-executed and delivered by the said testator, as the said plaintiff hath in her said petition averred. And the court farther find, that-the said note was given by the said testator a short time before his-death to the said plaintiff, who was the daughter of said testator, as an advancement and gift by the said testator to the said plaintiff, and as some provision for her out of his said estate, and without-any other or different consideration whatever. And the court being of opinion that, by law, natural love and affection, and a desire on the part of the testator to provide for and advance the said plaintiff, are not a good and sufficient consideration to enable the-plaintiff to recover on said note, do find that *said note was without consideration; as said defendant hath in his said answer averred.” Thereupon judgment was rendered against the plaintiff for costs; and she excepted to the ruling and judgment. To reverse this judgment, the plaintiff filed a petition in error in the district court, insisting that the court of common pleas erred :
    1. In ruling “ that by law, natural love and affection, and a desire on the part of the testator to provide for and advance the said plaintiff, are not a good and sufficient consideration to enable the-said plaintiff to recover on said note.”
    2. In finding that the note was without consideration.
    3. In rendering judgment against the plaintiff, when it should have been for her. •
    The questions thus presented were reserved in the district court, for decision by the Supreme Court.
    
      Nye, Hanna, Jewett & Guthrie, for plaintiff.
    
      John Welsh, for defendant.
   By the Court.

The judgment of the court of common pleas-must be affirmed, upon the principles settled in the case of Hamor v. Moore’s Adm’rs, 8 Ohio St. 239.

The note in the case before the court was a gift, and its delivery was the delivery of a promise only, and not of the thing promised. The promise being unfulfilled at the death of the maker of the note, the gift failed. And as the promise was without consideration and could not have been enforced against the maker in hi»i lifetime, it can not be against his executor.

Judgment affirmed.  