19 N.Y.S. 885 | N.Y. Sup. Ct. | 1892
Thomas Cornell, the testator, was a son of Peter Cornell. After the death of testator’s mother, Peter Cornell married a Mrs. Woodmansee. The issue of this second marriage was four children,—one son and four daughters,—of whom this plaintiff is one. In 1840, Peter Cornell received from a former partner, with whom he at that time dissolved his business relations, certain promissory notes. Nothing appears to have been paid on these notes, and in 1860, Peter Cornell handed them down to his son, Thomas, stating at the time that he had some information that they could be collected. From the time of Peter’s second marriage until the time of his death he resided, with his wife, on a farm, on which she had resided during her widowhood. Peter Cornell died November 11, 1860, and shortly before his death he and his son, Thomas, had a conversation, which the witness gives' as follows: “Mr. Cornell was very restless, and wanted Tommy sent for. Tommy was sent for, and had a talk with him. He said he felt as if he could not die unless some provision was made for those younger children.” His wife was very much dissatisfied with regard to her money. It was all in that property. He said to Thomas Cornell “that he felt that these younger children ought to be provided for; that he felt as if his time was short. ” He says: “Father, don’t worry. They will be provided for. I will give each of them five thousand dollars, and set Joseph up in business.” In answer to a question as to what was said by Peter about his wife’s money, the witness said: “There was nothing particular spoken of, only that all her money she got from her father was in that property,—the property where they lived.” The case shows that Peter’s wife was present at this conversation, and that all Peter’s girls were children at that time. The mother of the plaintiff and stepmother of testator died May 7, 1879, and during her last sickness, in 1878 or 1879, the following conversation occurred between her and testator. She said: “Major, you know you had all my money in the business. I am on my deathbed now, and I think the girls should be paid the money agreed upon long ágo.” He said: “Are any of'them in need?” She said: “No, not for bread.” He replied: “They shall be paid that money, and more, too.” At this conversation plaintiff and one of her sisters were present. There is some evidence in the case tending to show that the testator expressed himself under obligations to do something for his half-sisters, and the plaintiff proved, under the defendant’s objection, that he had given one of them property valued at about $10,000. The claim presented by the plaintiff and rejected by the executor is in the following form: “ Estate of Thomas Cornell, to Augusta Bogardus, Dr For five thousand dollars, with interest thereon from October, 1860. At the date last mentioned the said Thomas Cornell acknowledged himself indebted in the sum mentioned, and agreed to pay the same, with interest, on demand, as a part payment of his indebtedness to Peter Cornell and Mary C. Cornell. ” On the trial the defendant insisted that no cause of action was-made out by the plaintiff, and that the alleged claim was barred by the statute of limitations. The referee found for the plaintiff $5,000, with interest from September 2, 1890.
The appellant insists that this evidence does not establish the existence of a binding contract on the part of the testator, and creates no liability against his estate. It is not disputed but that the testator told his father in the conversation in 1860 that he would give each of the girls $5,000 and set the son Joseph up in business, but it is claimed that that promise was wholly without consideration, and was at most only a promised gratuity, made to quiet the anxiety of his father, and was a nudum pactum. The only evidence in the case of any business transaction between testator and his father, Peter Cornell, was the delivery of the stale notes received by him from his father
There is some evidence in the case of declarations of the testator that he intended to give to his sisters something, or make some provision for them in his will, which it is claimed by respondent tends to prove that testator recognized some obligation or .liability to his sisters; but the whole evidence bearing upon the question of a valid consideration for his promise is at best but very slight and unsatisfactory. But it is urged that, as these acts and statements of the testator may admit of more than one interpretation, and the effect to be given to them may to some extent depend upon the intention of the testator and the manner in which he intended them to be understood by the persons to whom they were made, the meaning of his language becomes a mixed question of law and fact, proper to be passed upon as a question of fact by the referee, and that his determination upon such facts ought not to be disturbed on appeal. White v. Hoyt, 73 N. Y. 505. But the defendant insists that, even if there was an antecedent obligation existing against the testator and in favor of Peter Cornell or his wife, that, of itself, would not be a good consideration to uphold a promise by the testator to pay the plaintiff,—a third person, between whom and Peter Cornell, the promisee, there was no privity,—and we are referred by the learned counsel for the appellant to the cases of Fairchild v. Feltman, 32 Hun, 398; Kelly v. Roberts, 40 N. Y. 432; Vrooman v. Turner, 69 N. Y. 284; and Gates v. Hames, (Sup.) 8 N. Y. Supp. 287,—in support of that proposition. In Fairchild v. Feltman, supra, one C. was indebted to plaintiff, and at the same time defendant was indebted to C., and while so indebted promised plaintiff to pay plaintiff the amount of his indebtedness to C. C. did nob release the defendant from his liability, but gave him credit for the sum agreed to be paid on his books. Upon this state of facts plaintiff sued the defendant on his promise, and the court held that the defendant’s promise to pay plaintiff vs as, a nudum pactum. It was nothing more than a paroi executory promise, without consideration, to discharge C.’s obligation to the plaintiff. In Vrooman v. Turner, 69 N. Y. 280, the court says: “To give to a third person who may derive a benefit from the performance of the promise an action, there must be—First, an intent by the promisee to secure some benefit to the third party; and, second, some privity between the two, the promisee and the party to be benefited, and some obligation or duty owing from the former to the latter, which would give
■ The rule to be deduced from these and other cases seems to be that when there is a present consideration moving from the promisee to the promisor upon which the promisor agrees to pay money too third person, to whom the promisee owes. some debt, duty, or obligation, such promise may be enforced by a third person. Two things must concur: First, the passing of a present consideration from the promisee to the promisor; second, the existence of some debt, duty, or obligation from the promisee to the third person, —before a recovery in "such case can be upheld. We do not think in-this case that both of these conditions have been proven to have concurred. Clearly there was no present consideration for the promise passing from Peter Cornell or his widow to the testator at the time of his making the promise, nor was there any debt, obligation, or duty due from Peter Cornell or his widow to the plaintiff which she could enforce against them, or either of them, tout we are not prepared to say that the relationship existing between the plaintiff and her parents was not such as to create aprivity between her and them, which might meet the last condition above referred to. Gates v. Hames, (Sup.) 8 N. Y. Supp. 287; Vrooman v. Turner, 69 N. Y. 280; Kelly v. Roberts, 40 N. Y. 432; Fairchild v. Feltman, 32 Hun, 398. But the first condition is nowhere met by the evidence, and there was therefore no valid agreement inuring to the benefit of the plaintiff, which she can enforce by action. But if it should be held that the agreement of the testator to pay this money to plaintiff was valid, then there was nothing in that promise which in any w:ay postponed its performance, or prevented the plaintiff from enforcing it as soon as it was made. There seems to be no evidence to support the finding of the referee that this money was payable on demand. The promise, as
There is nothing in this case to show or from which it can be reasonably inferred that a demand would have been necessary to enable Peter or Mary Cornell to recover any money due from Thomas in the lifetime of all the parties. The debt, if any existed, was not, as between them, impressed with any trust; nor was it a deposit. In Payne v. Gardiner, 29 N. Y. 146, it was held that an action could not be maintained against a depositary until after a demand. In lie Waldron, 28 Hun," 481, the writing given by defendant acknowledged the possession of a certain sum of money, and that it was held in trust, and a demand was necessary to set the statute in operation. In Boughton v. Flint, 74 N. Y. 476, the husband, in his lifetime, had collected money on a mortgage belonging to his wife, which she allowed and requested him to retain. The transaction was a deposit, and not a loan, and a demand was necessary to set the statute in motion. These cases are cited by the plaintiff as authority that the debt due from executor to his father and stepmother was a deposit, and that a demand was necessary to set the statute in operation. I fail to see their analogy to the case at bar. In eacli case they were, in effect, but deposits, and in their very nature required a demand before an action could be maintained on them or the statute would commence to run. In the case at bar, as we have seen, the claim was that testator owed his father and stepmother, and at their request agreed to pay the same to the plaintiff, and, if valid, was but the transfer of that debt, with whatever right of action existed against the testator, to the plaintiff, who became