86 Ga. 636 | Ga. | 1891
The superior court classified the stipulations of the instrument declared upon as testamentary in their nature. This was a total misconception. The instrument is not a conveyance, but a covenant to pay money. There was no attempt to establish between the parties the relation of donor and donee, or of testator and legatee, but the relation established by the covenant was that of debtor and creditor. In contemplation of marriage, the prospective husband, on behalf of himself, his heirs, executors and administrators, covenanted under his hand and seal, for and in consideration of the marriage to be had and solemnized, that his executors upon his death should pay over to his prospective wife the sum of $4,000, this sum to be her full and complete distributive share in his estate. On her part she covenanted, under her hand and seal, that she would abide by the terms of the instrument, and consequently that she would not participate further in his estate, unless he should see proper to give her any money or property before his death. These are the substantial provisions of the instrument as an antenuptial contract, and the suit is brought to recover the $4,000, the plaintiff alleging in her declaration that the marriage took place as contemplated, that her husband is dead and that the defendant is his qualified executor, having assets with which to make payment. The contract was absolute and irrevocable. The husband had no more power to
A contract does not take on a testamentary character because its performance is postponed till after the death of the maker and devolves upon his representatives. Even a parol promise to be performed after death may be obligatory. Powell v. Graham, 7 Taunt. 580; Riley v. Riley, 25 Conn. 154. A promissory note may be made payable after the maker’s death. Roffey v. Greenwood, 10 Ad. & El. 222; Bristol v. Warner, 19 Conn. 9. Or after the death of a third person. Cooke v. Colehan, 2 Stra. 1217, s. c. Willes, 393; Washband v. Washband, 24 Conn. 500.
Were the covenant in question considered as a contract to make a will, it would be none the less obligatory, for such contracts are enforceable, and if not performed, a recovery may he had for their violation. Napier v. Trimmier, 56 Ga. 300; Johnson v. Hubbell, 66 Am. Dec. 773, and notes; Manning v. Pippen, 11 Am. St. Rep. 46, and notes.
Of course treating the covenant as having this latter import would involve some change in the pleading as well as in the evidence. We think the pleader in this case adopted the right construction, and that the action
