
    *The Ohio Wesleyan Female College v. John Higgins, Executor of Robert Love, deceased.
    ,1. The act of April 9, 1852, “to enable the trustees of colleges, academies, universities, and other institutions for the purpose of promoting education to become bodies corporate,” and the act of March 11, 1853, amendatory thereof, recognize a class of educational institutions, the property of which is held in trust, and is derived from “ donation, gift, devise, or gratuitous subscription;” and various provisions of those acts, by necessary implication, authorize such institutions to accept and receive voluntary subscriptions.
    2. Where such subscription is made in writing, and accepted, and liabilities are incurred on the faith of it, its collection can not be defeated on the ground of a supposed want of a valuable or legal consideration.
    Error to the court of common pleas of Morrow county. Reserved in the district court.
    
      On January 17, 1862, the plaintiff, now plaintiff in error, filed a petition in the court of common pleas against the defendant, now •defendant in error, stating in substance :
    1'. That plaintiff is a corporation for educational purposes, incorporated as a college, under the acts of April 9, 1852, and of March 11,1853, and became so incorporated by compliance with the requirements of said statutes April 2, 1853, and by virtue of its corporate powers did, at and prior to January 22,1856, and ever since •hath, and still does receive and educate female pupils, confer degrees, etc.; that the corporation is under the supervision of the Methodist Episcopal Church in Ohio, and is permanently located at Delaware, Ohio, and is accessible to all religious societies.
    2. That from the time of its organization and on January 22, 1856, the plaintiff intended and took preparatory steps to repair its property and buildings on hand (worth over $5,000), and to ■erect further buildings, procure suitable apparatus and furniture, ■etc., in furtherance of the objects of its organization, to wit, the ■establishing and maintaining of a first class educational institution, all of.which was on said day and prior thereto known to said Robert Love, then in full life. That for accomplishing this end plaintiff'relied on the *aid and contributions of money of its friends and the citizens of Ohio generally, especially of the members of said church; that, prior to and on said day, it received money and property and promises of money from divers persons, to be applied to said purposes, and held itself out to the public and to said Love as ready to receive contributions of money and promises and contracts to pay money for said purposes, and that it would faithfully apply such contributions, and the money arising from the payment and fulfillment of such promises and contracts, to said purposes; that said contributions of money and promises and agreements to pay money were in consideration that said corporation was and would be a benefit to the public, and thereby a benefit to them individually in respect of their persons and property ; that others had made, were making, and would thereafter make, such contributions and agreements to pay money to said corporation; that each and all had an interest in said corporation and its success; and that by means of said contributions and agreements, a sufficient fund would be obtained for accomplishing the objects and purposes of said corporation according to plaintiff’s said intent and desire; and that said plaintiff would hold and had held itself out to them and the public as ready to take upon itself the responsibility and risk and trouble of faithfully applying such* contributions and moneys when paid, to said purposes and objects, and in further consideration of having good educational facilities-such as said parties desired; all which was well known to said Love, at said time.
    3. That on said 22d day of January, 1856, said Robert Love-(being -then of advanced age, and exjjecting soon thereafter to depart this life), being also a member of said Methodist church, and resident in said county of Morrow, and interested in the success of said corporation, did, for the considerations aforesaid, and with the-knowledge as aforesaid, and for the purpose and object aforesaid, execute and deliver to the plaintiff an agreement, of which the following is a copy:
    “ To all whom it may concern: I, Robert Love, agree to give one-thousand dollars of my estate to the within-named objects; seven, hundred and fifty dollars to the Missionary Society of the Metho-
    dist Episcopal Church; and two hundred *and fifty dollars-to the Ohio Wesleyan Female College; said sums to be paid out of' my estate, as provided in my will.
    (Signed) “Robert Love.
    “ Bloomfield, Morrow county, Ohio.”
    
    “ T. Ayres, witness.”
    
    
      January 22,1856.
    That said agreement or subscription was in a few days after its-execution put down by said corporation among its other subscriptions and assets, to be applied, when collected and paid, to the purposes asoresaid, in the faith of which agreements and subscriptions, (this among others) said intended improvements were to be made,, and, in fact, were afterward made.
    4. That a sufficient amount having been paid and agreed to be-paid to said corporation, in the manner, and for the purpose, and on-the conditions aforesaid, it did, subsequently to said day, and shortly thereafter, and before suit brought, and before demand made-upon the'executor, faithfully apply all the moneys paid on such agreements, to the erection of commodious buildings, sufficient to> receive and accommodate pupils, and did procure suitable apparatus- and furniture, etc., fully complying with all the pledges made by the said corporation, to the public, and to other parties subscribing, and to said Love; and in making such improvements, it incurred ■debts and liabilities on the faith of such agreements and promises yet unfulfilled and unpaid (among others, that of said Love), and •of the duty and liability-of said John Higgins, as executor, to pay ¡said sum so agreed by said Love in his lifetime to be paid; and that money enough has been promised, as aforesaid, to meet all such liabilities, on which promises it relied, and still relies, for the discharge ■of said liabilities.
    5. That said Love, on the 6th day of October, 1858, made his ■last will in writing (of which a copy is set out in the petition); .-and which is in substance as follows: The first item which directs ■the payment of all testator’s just debts and funeral expenses. Item .2 devises to his two daughters, Elizabeth Morris and Rebecca J. :Sears, a house and lot of land, and all his homestead farm, to be ■equally divided between them; which gift, the will says, “ is on this wise; that each of them *pay the sum of five hundred dollars, .as hereinafter directed.” Items 3, 4, 5, 6, 7, and 8, give pecuniary legacies to other children: and to a grand-daughter, amounting, in 4he aggregate, to $710. Item 9 provides that the one thousand dollars to be paid by his said daughters Elizabeth and Rebecca, be paid within eighteen months from his decease, and that the legacies above stated be paid as soon after his decease as sufficient money for that purpose can be procured by his executor. Item 10 disposes of the residue of his personal property among his legal heirs, equally. And the 11th, and last item, appoints the defendant, John Higgins, executor of the will, which bears date October 6,1858.
    6. The petition then states the death of said Love as occurring prior to the 18th day of August, 1859; the probate of said will on that day; the appointment and qualifying of Higgins as executor ; that the estate is unsettled; that the 4ailghters to whom the real estate was devised, have, with their husbands, gone into possession of the premises devised, under the will, and have accepted said .devise. The petition alleges that the plaintiff’s claim is one of the just debts due from said estate; that a sufficiency of assets have •come to the hands of the executor, including the sum of $1,000 named in the 2d and 9th items of the will, to pay each of the .specified legacies, and also the plaintiff’s claim and all other just ■demands against the estate; and that plaintiff’s claim for $250 is a valid charge upon the real estate devised as aforesaid.
    The petition further alleges the due presentation of plaintiff’s’ claim to the executor, for allowance, and his refusal to allow the same, as also the due demand of payment thereof, and the refusal of the executor; that said claim remains wholly unpaid; that there-is due thereon to the plaintiff the sum of two hundred and fifty dollars, with interest from January 28,1862, for which judgment is asked.
    To this petition the executor, Higgins, demurred, on the ground that it does not state facts sufficient to constitute a cause of action. This demurrer was sustained by the court of common pleas, and the plaintiff failing to amend the petition, it was dismissed. To reverse the judgment of dismissal, *the plaintiff filed a petition-in error in the district court. That court reserved the case for decision here.
    
      S. M. Garper, for plaintiff in error, argued:
    1. The paper sued on is a contract. We do not claim under it as a will, but as a contract obligatory upon Love when it was executed, and not a thing which he could alter or revoke at pleasure. It was an absolute promise to give—to pay. The manner and time of payment are immaterial upon the question as to the character of the paper. The.payment was to be at his death, or at least within eighteen months thereafter—a time sufficiently certain.
    2. The facts stated in the petition show that the contract to payr was upon a sufficient consideration. 1 Parsons on Contr. (ed. 1864) 425, and cases cited; George v. Harris, 4 N. H. 533-536; Congregational Society in Troy v. Perry, 6 N. H. 164, 165;. Trustees of Church, etc., in Pembroke v. Stetson, 5 Pick. 506-509; Trustees of Troy Conference Academy v. Nelson, 24 Vt. 189; Stewart v. Hamilton College, 2 Denio, 408; Bryant v. Goodenough, 5 Pick. 229; Amherst Academy v. Cowles, 6 Pick. 437; Robertson v. Meade, 3 Scam. 198; Gittings v. Mayhew, 6 Md. 131; Collier v. Baptist Society, 8 B. Monroe, 61.
    
      W. ff. Smith, for defendant in error, argued:
    1. The agreement upon which suit was brought is, by a person-in full life, to give an educational society a sum of money after his death, and provide for the same by his will. Such an agreement can not be the foundation of an action in case of its breach, for the following reasons:
    1. It is an effort at testamentary disposition without the formalities required by law. Needles’ Exr. v. Needles, 7 Ohio St. 444; Hamer v. Moore’s Adm’rs, 8 Ohio St. 239; Frost v. Frost’s Adm’r. 33 Vt. 639.
    2. The agreement is without mutuality. Dayton Turnpike Co. v. Coy, 13 Ohio St. 84.
    3. It is without consideration. 1 Parson’s Contr. 359, 360, 379; Barnes v. Perrine, 2 Kernan, 18; Cook v. Bradley, 7 Conn. 57; Loomis v. Newal, 15 Pick. 159; Hawley v. Fanner, 1 Vt. 420; Ingraham v. Gilbert, 20 Barb. 152; Bates v. *Watson, 1 Sneed,
    376; Smith v. Ware, 13 Johns. 257; Eastwood v. Kenyon, 11 Ad. & Ell. 438; Boutwell v. Cowden, 9 Mass. 254; Limerick Academy v. Davis 11 Mass. 114; Trustees, etc. v. Gilbert, 2 Pick. 579; Hamilton College v. Stewart, 1 Comst. 581.
   Scott, J.

The agreement or promise, on which this action is brought, is not, as we understand it, a mere promise that the defendant’s testator would thereafter make a donation to the plaintiff by his last will and testament. Were this its character, it is clear that on such a gratuitous executory promise no action could be maintained. But we think its terms purport to create a present indebtedness, or obligation to pay a sum of money, which is to be discharged in futuro—after the promisor’s death. The expression “to be paid out of my estate as provided in my will,” clearly imports that payment is not to be made during the life of the promisor. This circumstance can not invalidate the promise, if made upon sufficient consideration. It is an absolute promise to pay the plaintiff a specified sum of money when an event shall occur which sooner- or later, must happen. This promise is in writing, commencing with the formal words, “to all whom it may concern;” it was duly executed by the party making it; its execution was attested by a subscribing witness; and it was then delivered to the plaintiff, an institution incorporated for educational purposes, of a public character, and deriving its resources from the liberality of the community. By all this formality the parties must have intended something. We think it apparent, from the facts stated in the petition, that the parties' understood the writing in question to be a subscription by Love, in aid of the educational purposes contemplated by the incorporation of the plaintiff. Nor do we see that the writing lacks anything requisite to give it that character. No effect can properly be given to the stipulation that payment shall be made “ as provided in my will,” which would defeat the substance of the promise itself—that is, the payment of the stipulated sum within a reasonable time after his death. This provision can have no further effect in favor of the promisor than to reserve for him the right of prescribing *by his will out of what fund the payment should be made, and of giving such time for its payment by his executor, in the process of settling the estate, as would be reasonably necessary for converting the assets into money, and such as would not substantially and unreasonably impair the value of the subscription. A failure to exercise the right, thus reserved, would not invalidate the subscription, but would leave it, if otherwise valid, to be paid by the executor within the time allowed him by law for the payment of debts due from the estate.

The material parts of the writing on which the plaintiff sues are: “I, Robert Love, agree to give......two hundred and fifty dollars to the Ohio Wesleyan Female College, said sum to be paid out of my estate as provided in my will.”

The question whether this writing be a subscrij>tion can scarcely be affected by the fact that the agreement is in terms “ to give ” the specified sum, or, by the further terms, that this-sum is “ to be paid ’’ out of the estate. Neither of these expressions is inconsistent with the idea of a subscription. Whether a subscription be voluntary and gratuitous or otherwise, can only be important by its bearing on the question of the existence or absence, of a legal consideration.

There is no reason to suppose that the testator himself at any time regarded this writing otherwise than as a subscription binding upon his executor; or that he intended to violate his promise by failing to make provision for its payment in his will. If he understood the writing to be an actual siibscription, and not a promise to bequeath a legacy, the provisions in his will which direct the payment of his debts, and provide his executor with means for that purpose, are all that good faith required of him. And, it may be •observed, that the exact sum, here agreed to be paid, is made a •charge upon the lands devised to his daughters, and is directed to be paid by them, whilst no other special appropriation is made of the fund thus raised. It would be unjust to his memory, therefore, to suppose that his construction of the agreement was such as must necessarily convict him of bad faith in the final disposition of his property. Were the terms of the instrument *such as to leave the intention doubtful, the construction thus apparently given, to it by the subsequent acts of the maker is entitled to regard.

Nor does the instrument lose the character of a subscription by ■the fact that it is on a separate paper, unconnected with subscriptions made by others. This is clearly unessential; though we may remark,, in this connection, that, from the address of the instrument, “to all whom it may concern,” it would seem to have been intended as a spur to the liberality of other friends of a common -cause, and it is reasonable to suppose that the appeal would not be wholly unavailing.

It remains to be considered whether the petition shows a consideration sufficient in law, under the circumstances stated, to ¡support the agreement and promise sued upon, and thus to create .a valid obligation against the estate of defendant’s testator. That .any one or all of the facts stated in the petition, as constituting the -consideration of the testator’s promise, are sufficient in law to render the promise and agreement binding, independent of all statutory'enactments on the subject, is at least questionable. It is not -easy to reconcile the authorities on this subject, and it may, perhaps, be conceded that the weight of authority is against the •proposition.

But, however this may be, it has at all times been the decided ■policy of this state to favor and promote the interests of education .and the general diffusion of knowledge among the people. To this fact, the provisions of the constitution itself, our system of school laws, and the acts providing for "the incorporation of institutions -of learning, bear ample testimony.

The acts under which the present plaintiff -was incorporated are that of April 9,1852, “ to enable the trustees of colleges, academies, universities, and other institutions for the purpose of promoting •education, to become bodies corporate,” and the act to amend the -.same passed March 11,1853. S. & 0. Stat. 266, 269. These acts divide the institutions provided for into two classes: one class consisting of those institutions of which the property is owned by individuals in the shape of stock subscribed or taken, and the ■other embracing such as hold their property in trust, or derive it from “ donation, gift, devise, *or gratuitous subscription.” The plaintiff belongs to the latter class, which is clearly authorized, by necessary implication arising from various provisions of the statute, to procure funds for carrying out the purposes of their several organizations by voluntary subscriptions. And that the statute refers not merely to subscriptions which have been, in fact, paid, appears, as we think, from the second section of the amendatoryact before referred to, which provides, among other things, for theappraisement at their true value in money of such subscriptions as may be exhibited to the appraisers.

This subscription, then, was authorized by law. It was evidently intended by the maker that the managing officers of the corporation should rely upon it as a part of the means and resources of the institution. It was but reasonable that they should rely upon the solemn pledge thus given, and incur liabilities upon the faith of it. And that such liabilities were, in fact, so incurred the petition distinctly avers. By accepting this subscription or written-promise of defendant’s testator, the corporation took upon itself the obligations of a trustee, and became bound faithfully to execute the trust by applying the proceeds, when paid, in furtherance of the objects for which the institution had been incorporated. All these facts, when viewed in connection with the provisions of the statute to which reference has been made, will not permit the plaintiff’s action to be defeated by an alleged want of a legal or valuable consideration.

On this subject, the case of Commissioners of the Canal Fund v. Perry, 5 Ohio, 57, and that of Collier v. Baptist Education Society, 8 B. Monroe, 68, are strongly in point, and require the demurrer to the plaintiff’s petition in this case to be overruled.

We accordingly reverse the judgment of the court of common pleas, overrule the demurrer to the plaintiff’s petition, and remand the cause to the court of common pleas for further proceedings.

Brinkerhoee, C. J., and Day, White, and Welch, JJ., concurred»  