125 Minn. 115 | Minn. | 1914
Action by plaintiff, administratrix of the estate of Andrew O. Kragnes, deceásed, to recover upon a promissory note executed by defendant to decedent in his lifetime. Defendant’s answer admitted the making and delivering of the note and alleged, in defense, that
The theory of the court below in granting the motion for judgment was that the subject of advancements is regulated and controlled entirely by section 3797, R. L. 1905 (Gf. S. 1913, § 7404), and that by the terms of the statute an advancement to be valid must be in writing, and, since in this action no such writing was claimed to have been made, it being so conceded, it could not be shown by parol evidence, hence, that the answer stated no defense which defendant could establish by competent evidence. The learned court below also treated the statute as applicable to both testate and intestate estates, being led to do so by what the court understood as a concession by counsel for defendant to that effect. The court therefore gave no special consideration to that feature of the case. It is unimportant at this time whether counsel intended to so concede, for he now insists that the doctrine has no application to testate estates, and the question is thus squarely presented for decision. If the basis for the decision appealed from be sound, it follows that the holding was correct, for it is clear that under our statutes, above cited, an advancement, as there regulated and controlled, must be expressed in writing. Porter v. Porter, 51 Me. 376; Barton v. Rice, 22 Pick (Mass.) 508; Pomeroy v. Pomeroy, 93 Wis. 262, 67 N. W. 430.
But the theory upon which the cause was so submitted below, and that the doctrine applies to both testate and intestate estates, is not sustained by the prevailing opinion of the courts of this country, or of England, though cases may be found in some of the states holding
We have then only to inquire whether it was competent for defendant, under the ¿negations of bis answer, to prove by parol that the money in question was a gift from bis father, for the allegations of the answer sufficiently present that defense. It alleges that the money was a gift, intended as an advancement, and that there was no consideration for the note. If in fact a gift, and the note was taken as a matter of form, to then express an advancement, it follows that the note was without consideration, for in that ease there could have been no intention that it should be repaid. Such being the defense the case comes within the rule permitting the maker of a promissory note to show that it was given as accommodation paper. Shalleck v. Munzer, 121 Minn. 65, 140 N. W. 111. the question of the character of evidence admissible for this purpose is not involved. It is probable that defendant may not be in position to produce the necessary evidence, since bis father is dead and be is precluded from giving in evidence conversations with him, but be may have competent evidence at band, and this is sufficient reason for denying judgment on the pleadings.
Judament reversed.