| Vt. | Jan 15, 1883
The opinion of the court was delivered by
The intestate, Calista Holton, during her last sickness and just before death, gave the note in question to the female plaintiff, who is the daughter by a former marriage of said Calista’s husband, Ebenezer Holton. Mrs. Rogers before her marriage had lived with her father some time after her majority, a portion of which was after his marriage to said Calista. It does not appear that there was any contract or understanding that she should have pay for services in the family, or that her services were worth more than her “ living.” Said Calista, of her own money, loaned to Mrs. Rogers $200. The note she ever kept in- her possession up to the time of her husband’s death, and since, until she collected it. The said Ebenezer, through a third person, conveyed his homestead to his wife, the said Calista. It was of about $800 value burdened with a mortgage of $500 ; and all his personal estate did not exceed $100 in value. The said Calista after her husband’s death, for the purpose of paying the mortgage on the homestead, called for the payment of the $200 note of Rogers, and he paid it. It is stated as a fact, that Holton and his wife designed and often talked between themselves, either to for
I. Did the promise rest upon sufficient consideration ? If it should be assumed (which does not appear) that Mrs. Rogers had a legal claim for services performed, the claim was against the husband and not the wife. It is suggested, in argument, that the conveyance of the homestead to Calista was in trust to pay this sum to Mrs. Rogers. But there was no declaration of such a trust; and the property, conveyed was of so small value that the whole would go to the wife on the decease of the husband ; and the court would not assume without proof that the wife took upon herself a trust, which would strip her of all means of support. It is unavailable as a gift, for it rested altogether in promise not executed. Smith v. Kittridge , 21 Vt. 238" court="Vt." date_filed="1849-02-15" href="https://app.midpage.ai/document/smith-v-kittridge-6574060?utm_source=webapp" opinion_id="6574060">21 Vt. 238.
. There are many things done very proper to be done, which become unavailing for the want of form or legal requisites. It was very proper that this woman at the close of life should essay to give her daughter-in-law $200 ; it was proper in itself, and in accord with the often-expressed wish of herself and husband. But her method was legally unavailing. The note was given without any legal consideration — not for any moral or legal obligation or duty resting upon the party, and by well settled rules of law the note; as a contract, is without legal validity.
The judgment is reversed, and judgment on the report for the plaintiff for the lesser sum.