Mack & Person's Appeal

The opinion of the court was delivered,

by Sharswood, J.

So much as relates to the questions of fact which have been raised in this case may be dismissed with the observation that the findings of the auditor below are fully sustained by the testimony as reported by him. There was no evidence of fraud or mistake in the execution of the notes which were allowed in the account.

Mrs. Lerch perfectly understood what she had done, and although not very good at accounts and figures, was entirely competent to make such an arrangement as she did. It was in all respects a just and reasonable arrangement. Two of her sons-in-law were indebted to her, and her claims against them were barred by the Statute of Limitations. She was anxious to make all her children equal. She might have provided for this by will. But it was equally competent for her to do the same thing by act executed in her lifetime. She cancelled the notes upon which her sons-in-law, Mack and Person, were indebted to her, and executed notes under seal to all her other children severally for similar amounts, payable principal and interest upon her death. That these were valid obligations is very clear. No consideration was necessary. The seal imported it. “ A voluntary bond,” as is said by Chief Justice Gibson, “is both in equity and at law, a gift of the money:” Sherk v. Endress, 3 W. & S. 256. “It is not now to be doubted,” says Mr. Justice Bell, “ that though a parol unexecuted promise to make a gift inter vivos without consideration is void, an agreement under seal to do so may be enforced as a legal obligation:” Yard v. Patton, 1 Harris 285. This being so, these sealed notes can in no sense be regarded as testamentary, for revocability is of the essence of a testament. This is a very different case from that of a grant or conveyance of property by a man in trust or for purposes not to take effect until after his death, such grants being without any consideration moving from the grantee. It is unnecessary to refer particularly to Turner v. Scott, 1 P. F. Smith 126, and Frederick’s Appeal, 2 Id. 338. The first was a conveyance by a father to his son, reserving the land to the grantor during his life, the conveyance in no way to take effect until after his decease; it was held to be a testamentary instrument and therefore revocable. The second was a deed by an old and feeble man to trustees to pay his debts and necessary expenses, support him for life, and after his death, to divide what remained among his children. This was also held to be testamentary and therefore revocable. But the case before us bears no resemblance to these. A man may give a present bond to pay a sum of money at his death, and a delivery of it to the obligee, renders it perfect as a present obligation though payable at a subsequent whether a fixed or an uncertain period to be after-wards ascertained and made certain. It is strictly debitum in presentí solvendum in futuro, and is as irrevocable as any other obligation under seal, which in law imports consideration.

Decree affirmed, and appeal dismissed at the costs of the appellants.