Latcham v. Latcham , 195 Iowa 221 ( 1923 )

Faville, J.-

-The decedent died September 23, 1920. It appears from the record that he had.been married three times. The claimant was his third wife, and had been married to the decedent about twelve years. There were no children by this marriage, but the decedent had children by his former marriages. On August 17, 1920, he executed and delivered to the claimant the note in suit. It is a nonnegotiable instrument, the material part thereof being as follows:

“On the....day of........ 191.... for value received, we promise to pay M. M. Latcham my wife or order the sum of two thousand, -when estate is settled, dollars with interest at the rate of '5 per cent per annum, payable annually. ’ ’

Appellees pleaded that the note was without consideration.

Upon the trial of the case, the appellant offered in evidence the note in question, proved the genuineness of the signature thereto, and rested. The decedent’s two sons were witnesses for the appellees. They testified that, after the death of the decedent, they had a conversation with the claimant in regard to said note, in which conversation the appellant stated, in effect, that the decedent “gave” her the note in question “because he thought she ought to have something out of his estate,” which was all to go to his children. No evidence was offered in rebuttal. The trial court held that the note was without consideration, and was intended as a gift by the deceased to his wife, and was not enforcible against the estate.

I. The appellant contends that the note, being a written instrument, imports a consideration, and that appellant is entitled to recover thereon without other proof than that of the genuineness of the signature of the maker. Code Section 3069 provides:

‘ ‘ All contracts in writing, signed by tbe party to be bound or by his agent or attorney, shall import a consideration.”

Tbe appellant established tbe genuineness of tbe signature of tbe maker to tbe note in question, and offered no other proof. Appellant contends that tbe case at bar is governed by our bolding in tbe case In re Estate of Rule, 178 Iowa 184. In that case, tbe widow of decedent filed a claim against bis estate, based upon promissory notes made by tbe decedent, payable to tbe claimant. Tbe notes were drawn by a sister of tbe claimant’s, who was a competent witness, and who testified that, at tbe time of signing tbe same, tbe decedent stated that “be wanted to protect her in what be owed her. He said be owed her tbe amount stated in tbe notes.” Tbe defendants offered no evidence in said ease. We held that, in this situation, there was an affirmative showing that tbe notes evidenced an enforeible contract between tbe husband and wife, and said:

“But even if we were to go to tbe extent of defendants’ contention' that, before tbe claims could be allowed, there must be a showing that tbe making of tbe notes grew out of transactions having reference to the wife’s separate estate, tbe record is still sufficient to sustain tbe ruling of which defendants complain. It is shown without dispute that, in making and delivering tbe note, be was attempting to protect his wife' in tbe matter of bis indebtedness to her. Now we think that, for tbe purposes of this ease, it was entirely unnecessary for plaintiff to go further, and show tbe nature of such indebtedness or tbe manner of its origin.”

In tbe Bule case, tbe claimant not only offered tbe notes in evidence, but also offered competent evidence of tbe maker’s acknowledgment or statement that be was indebted to bis wife, and that the notes were made to protect her rights. Tbe defendants in said action offered no proof whatever to sustain their allegation of a lack of consideration for tbe notes sued upon, and we. held that, upon tbe record, tbe establishment of tbe claim was proper. Tbe consideration for the notes in tbe Bule case was established by other evidence than the written instruments, and such affirmative evidence was uncontradicted.

In tbe instant case, we have a situation quite tbe opposite. Granting, for tbe sake of tbe argument, that tbe note in this case, even though between husband and wife, imports a consideration (see, however, Heacock v. Heacock, 108 Iowa 540, which we are not approving by this opinion), still the'appellees denied that it was based on any consideration, and supported that denial by competent proof, which is in no manner disputed. The presumption of a consideration, if any existed, was, in any event, overcome by the evidence in the case.

We are satisfied from the record that the decedent attempted to make a gift to his wife by the execution of his note payable to her after his death. Such a note, being gratuitous, is a mere promise to give money at a future time, and cannot be -enforced. Meginnes v. McChesney, 179 Iowa 563.

The situation is distinctly different from that disclosed in Lawrence v. Scurry, 187 Iowa 1055, which was an action involving a claim on a note between cousins. We held that the evidence in that case was insufficient to overcome the prima-facie case made by the plaintiff. Such is not the situation here.

The trial court arrived at a correct conclusion, and the order appealed from is — Affirmed.

Preston, C. J., Evans and Arthur, JJ., concur.