
    Salomi Reithmaier v. William G. Beckwith.
    
      Contracts: Promise to matee a gift: Husband and wife. An agreement in writing, whereby a husband, in consideration of the discontinuance of a divorce suit then pending against him and of his wife’s returning to live with him, and in settlement of the difficulties between them, undertook and promised to pay to his wife five hundred dollars to be payable out of his estate thirty days after his death, over and above all claims she might have against his estate as his widow or under any will theretofore made or thereafter to be made, is held to be a valid contract and enforcible according to its terms, and not a mere promise to make a gift.
    
      Promise to pay after death: Testamentary disposition. The fact that the sum promised to be paid was made payable after the death of the promisor and out of his estate, does not make the undertaking a testamentary disposition of property to be governed by the statute relative to the execution of wills.
    
      Submitted on briefs October 12.
    
    
      Decided October 24.
    
    Case made from Kent Circuit.
    The case in the court below was an appeal from the decision of commissioners on claims disallowing the claim presented by plaintiff against the estate of her husband, John Reithmaier, which was contested by defendant as administrator. The cause was tried by the court without a jury, and a special finding made and filed, upon which judgment was rendered in favor of the claimant.
    The finding was in substance: (1) That the claimant was wife of decedent, who died June 22, 1875, intestate; (2) That prior to December 5, 1872, the claimant left her ^husband (decedent) and filed her bill for a divorce against him, which suit was pending December 5, 1872, when, in consideration of a settlement of the difficulties between them, the discontinuance by her of the divorce suit, and her returning to live with him, he executed and delivered to her an instrument in writing of the following tenor:
    “For value received I promise to pay to Salomi Reithmaier or order, the sum of five hundred dollars without interest, said sum to be payable out of my estate in thirty days after my death, said sum being intended as a gift to said Salomi Reithmaier, over and above all claims she may have against my estate, either as my widow or under any will and testament heretofore or hereafter made by me.”
    (8) That defendant is administrator of decedent’s estate, and that plaintiff’s claim was duly presented to the commissioners on claims and by them disallowed.
    
      Thompson <& Pratt, for plaintiff.
    
      W. I. Stoughton, for defendant.
   Maeston, J.:

The only question raised by the assignments of error in this case is, whether the facts found support the judgment, and we are of opinion they do. The instrument upon which plaintiff claimed the right to recover was more than a mere promise to make a gift. It was an absolute agreement, given upon a good and valuable consideration, actually delivered to the plaintiff, and upon being so delivered, it passed beyond the power and control of the party executing it. He could not after the delivery recall it. The plaintiff, upon receiving this instrument, became the absolute owner thereof, and might have sold and transferred tbe same to third parties. The fact that it was made payable after the death of the maker did not, as claimed, make it a testamentary disposition of his property, to be governed by our statute relative to wills. The fact that a party executes *and delivers to another his note or obligation payable out of his estate a certain time after his death, would not render it incumbent upon him, in order that the instrument should be valid, to execute it in a different manner than though made payable at any other time, which might or might not be before death.

Judgment affirmed, with costs.

The other justices concurred.  