Kern's Estate

Opinion by

Mr. Justice Mitchell,

With regard to the $10,000 note, though the circumstances are somewhat confused, and the testimony would have supported a finding that Mr. Kern intended the delivery of the Coal Company stock as well as of the note to his granddaughter, as security for her note, discounted in his favor, yet it is also consistent with the view taken by the learned judge below, and we cannot say that ho was in error. It appears then that she gave her note or due bill and received his note for the same amount as security. Subsequently she was compelled to pay her note, and was therefore entitled to recover from his estate-the amount of his note which she held as security. It makes no difference that she paid her note out of the proceeds of the Coal Company stock, because the stock was hers. As found by the learned auditing judge, it had been delivered to her by her grandfather and was therefore an executed gift. A payment with the proceeds of part of it was as much a payment out of her own means as a check on her own bank account would have been. We find no error in this part of the case.

But the allowance of the claim on the $30,000 note cannot be sustained oil any legal principle. It was a mere promise to pay, without consideration, and not enforceable against the promisor or against his estate. The learned counsel for the appellee have gone very far back in history to show that a consideration was not essential in the early common law, and that a seal was only a matter of technical form. But the necessity of a consideration having been settled more than four hundred years ago is scarcely open to discussion now, and while the distinction between sealed and unsealed instruments may be technical it is part of the bed rock on which the whole law of contracts is built. The cases cited by the learned court below are cases of sealed instruments and stand on entirely different ground. The note is also spoken of as “ an executory contract not under seal,” but this is a misnomer. It is not a contract at all, but a mere naked promise, nudum pactum, for want of a consideration, which is an essential part of the definition of a contract, “an agreement upon sufficient consideration, to do” etc., 2 Black. 442.

An effort is made to sustain the case on the ground of natural love and affection of the maker of the note for his granddaughter. But the argument falls into confusion from the indiscriminate use of the terms “moral obligation” and “moral consideration.” They are not convertible terms, even if there is any such thing as a moral consideration. Natural love and affection are a good consideration for an executed contract or gift, and in this state a moral obligation is a good consideration for an express promise, but natural love and affection are not -a moral obligation in such sense as will support even an express promise to make a gift. “ Natural affection is not a sufficient consideration to support a simple contract: ” Byles on Bills, p. 214. (8th Am. ed.) “ A consideration founded on mere love and affection is not sufficient to sustain a suit on a bill or note: ” Daniel on Negotiable Instruments, sec. 179. It is the nature of a gift to be revocable until executed by delivery, and the authorities are uniform that the delivery of a promissory note or check is not an executed gift of the money, but remains revocable, and will be revoked by the death of the promisor, before actual payment: 8 Am. & Eng. Ency. of Law, 1320; Daniel on Negot. Insts. secs. 179, 180; Chitty on Bills, 85; Byles on Bills, p. 144, 15th ed. 1891, p. 213, 8th Am. ed. 1891.

Decree reversed as to the <130,000 note, distribution to be corrected accordingly. Costs to be paid by the appellee.