The declaration filed in this case by the appellee against the appellant contains six counts. The defendant filed a demurrer to the whole declaration, and not to each count, which was overruled and, having refused to plead, judgment by default was entered against him, which was subsequently extended for the amount of plaintiff's claim. Although alleged technical errors in thenarr. are suggested in the briefs, an agreement of the attorneys was filed at the argument showing that it was the desire of both parties to have us determine
whether the instrument sued on is a valid obligation, binding the estate of defendant's decedent, and, as it is set out in full in one of the counts, we will pass on that question, without considering the technical defects alleged to exist. The instrument which was executed by William J. Feeser, under seal, is as follows: "$204.68. Due David H. Feeser the sum of two hundred and four dollars and sixty-eight cents, with interest from date, and said sum of money and interest is not to be paid during my life-time, but to be paid by my executor, out of my estate within one year after my death, and said sum of money is due and owing by my said son, Ezra D. Feeser, to the said David H. Feeser. I bind my executor to pay the same out of my estate as aforesaid, and then to be deducted of the distributive share coming to my said son, Ezra D. Feeser, out of my estate. Witness my hand and seal this 24th day of August, 1887."
It was said in Carey v. Dennis, 13 Md. 17, "that where an instrument does not operate inter vivos, but is made to depend for its whole operation upon the event of the death of the maker to consummate it, then it can only take effect as testamentary." In that case the bonds sued on were in such form as would ordinarily bind the maker, but they were given by a father to a third party with directions "to take care of them, and deliver them to his sons in case he died without a will," and they were not delivered to them in the life-time of the father. Our predecessors held that delivery in the life-time of the maker was essential to the validity, as debts, and they were in the nature of testamentary papers. But in the case before us no such difficulty arises, and, as was said in Cover v. Stem,67 Md. 449, the question is whether this instrument is "in its nature
a bill obligatory, binding and conclusive upon the maker, or whether it be a mere posthumous disposition" of so much money to be paid by the executor. It is clear that this is a very different instrument from the one under consideration in the last-mentioned case, which was under seal but simply read, "At my death, my estate or my executor pay to July Ann Cover the sum of three thousand dollars." This
instrument begins "Due David H. Feeser the sum of two hundred and four dollars and sixty-eight cents, with interest from date." "The word `due' has a variety of meanings, depending on the connection in which it is used. It has been defined generally to be that which is owed, that which custom, statute or law requires to be paid." 10 Ency. of Law (2nd ed.), 277. In Burton v.State, 3 Gill, 13, a due bill was regarded as equivalent to a "written acknowledgment of an indebtedness to a certain extent." In Wilderman v. Rogers, 66 Md. 127, a due bill was held to be within the statute authorizing a married woman to be sued "on any note, bill of exchange, single bill, bond, contract or agreement, which she may have executed jointly with her husband." The Court said that while it "may not be a formal negotiable promissory note containing terms of express promise to pay * * * any note, the legal import of which is a promise or obligation to pay, is sufficient to gratify the terms of the statute" — thus implying that the legal import of a due bill is a promise or obligation to pay. If the clause we have last quoted above was all of this instrument, it would be an ordinary due bill, and the use of the word "due" would import an obligation to pay. Now is there anything in the instrument which can be properly said to affect the legal import of that term, as it is used? On the contrary, there are other provisions in it which clearly sustain the idea that there was an intention to create a debitum in praesenti. It goes on to say "and said sum of money is not to be paidduring my life-time, but to be paid by my executor out of myestate within one year after my death." Taken together, the two clauses we have quoted are sufficient to show the acknowledgment of a present indebtedness, payable with interest from date one year after the death of the maker. It was said in Cover v.Stem, supra, that "no precise form of words is necessary to create a bond or obligation. Therefore any memorandum in writing under seal, whereby a debt is acknowledged to be owing, will obligate the party to pay, for it is said that any words which prove a man to be a debtor, if they be under seal, will charge him with the
payment of the money." Again it is said in that case that "there must be terms employed to create a debitum in praesenti, though the solvendum may be in futuro, and even after the death of the obligor. It would seem to be clear that the relation of debtor and creditor must be created and subsist in the life-time of the parties to the instrument, though the time of payment may be deferred until after the death of one of the parties." This instrument was under seal, used the term "due" and the obligor further said "I bind my executor to pay the same out of my estate as aforesaid." Taking that in connection with the other provisions there can be no doubt about the intention of the maker to become a debtor to the appellee, but with the understanding that the debt was not to be paid until after his death. The fact that it was not payable until after the death of the maker does not invalidate it, as is clear from what we have quoted above from Cover v. Stem. A number of cases that hold that notes payable at or after death are valid are collected in 4 Ency. ofLaw (2nd ed.), 92, note 2.
The statements that "said sum of money is due and owing by my said son, Ezra D. Feeser, to the said David H. Feeser," and that it was "to be deducted of the distributive share coming to my said son, Ezra D. Feeser out of my estate," did not in any way relieve the obligor from the indebtedness. The object of inserting that provision is perfectly manifest. His intention doubtless was to charge his son, Ezra, with the amount so to be paid David H. Feeser, and when the executor paid it he would be entitled to the bill obligatory, which would on its face show the intention of the maker that his son, Ezra, should be so charged with it. Whether or not that can be done need not be considered by us, as it is not before us, but the insertion of such a provision cannot relieve his estate from the payment of the debt. We are of the opinion that the instrument is a valid obligation, binding on the estate of William J. Feeser, and the judgment will therefore be affirmed.
Judgment affirmed, costs to be paid by the appellant out ofthe estate.
(Decided November 22d 1901.)