122 Ky. 707 | Ky. Ct. App. | 1906
OpinioN by Chief
— Reversing.
Mary P. Sullivan died a resident of Hardin county leaving surviving her ten children, and- this suit was brought by her administrator for the settlement of her estate. The only question arising upon the appeal is as to the validity of three notes executed by her to three of her younger children, Thomas D. Sullivan, Samuel I. Sullivan and Katie M. Pierce. These notes are as follows:
“For value received I promise to pay Thomas D. Sullivan five hundred ($500) dollars due' twelve months after date, but if same is not paid by me no interest is to be collected until after my death. This is not an advancement made by me but money due my son for services and kindness rendered me by him. This September 25, 1896.
“Mary F. Sullivan.”
“For value received of him I this day promise to pay my son Samuel I. Sullivan five hundred ($500) dollars to be paid him out of my estate before it is divided among my other children. This note is not
“Mary P. Sullivan.”
“For value received I this day promise to pay to my daughter Katie M. Pierce five hundred ($500) dollars to- be paid her out of my estate before it is divided among the other children. This note is not to- bear interest until my death. August 28, 1902.
“Mhry F. Sullivan.”
The proof shows that Thomas D. Sullivan was a bachelor, living with his mother when the note to him wasi executed, and cropping the farm on which he lived as her tenant. She made an arrangement with him by which he was to stay with her and take care of her as long as she lived, and in consideration of his promise to do this she executed the note to him. Shortly after the execution of the note, however, he married. His wife and bis mother did not get along together, and about the year 1898 he left her, They then had some disagreement as to whether he should give up the note, and had, or tried to have an arbitration about it; but he did not give it up. Afterwards the mother executed to Samuel I. Sullivan and Katie M. Pierce the other two notes as advancements. These notes the old lady declared were executed because they had received this much less than the other children and she wished them made up equal. The Circuit Court enforced the notes, and the administrator of the estate appeals.
The administrator introduced Joel Jackson and proposed to prove by him that he was one of the arbitrators selected by Mrs. Sullivan and her son Thomas, and that Thomas D. Sullivan told him then that he held the $500 note, but was not entitled to retain it, because he had not done what he agreed
As to the other two notes a different question is presented. The proof taken on the trial is not sufficient to show that Samuel I. Sullivan or Katie M. Pierce in fact received $500 less than the other children. In ' that event the notes would not be material. The .notes executed to them are on their face testamentary dispositions of the estate. The language of both notes is. the same, and while each contains a promise to pay jhey both provide that the $500 is to be paid out of the estate before it is divided among the other children and is not to bear interest until her death. A testamentary disposition
“A valuable consideration is necessary to support any contract, and the rule makes no exception as to the character of the consideration respecting negotiable instruments when the consideration is open to inquiry. Therefore a consideration founded on mere love and affection, or gratitude, is not sufficient to sustain a suit on a bill or note; as, for instance, when a bill or note is accepted or made by a parent in favor of a child, or vice versa, it could not be enforced between the original parties, the engagement being gratuitous upon what is called a good, in contradiction to a valuable, consideration.” In Edwards on Bills, Notes and Negotiable Instruments, section 456, it is
None of the Kentucky cases relied on are in point. It is true a note may be made payable at death, but' it must be upon a valid consideration. A note may be delivered as a gift causa mortis, but these notes were not so delivered. In Reynolds’ Adm’r v. Reynolds, 92 Ky., 556, 13 Ky. Law Rep., 793, 18 S. W., 517, the money belonged to the mother, and was in effect borrowed by the father, who executed his note to the daughter for it¿ The consideration there for the note was the money which belonged to- the mother, and which the father retained upon his promise to pay it to the daughter. In Fain v. Turner’s Adm’r, 96 Ky., 634, 16 Ky. Law Rep., 719, 29 S. W., 628, the note of the mother was based upon the consideration that the child forbore to bring a suit and thus lost a right of action which she had. In Graves v. Graves, 7 B. Mon., 213, the promise of each of the children was a sufficient consideration to support the promise of the other. The case of Jennings v. Anderson, 4 T. B. Mon., 445, rests upon the idea that the instru-
Judgment reversed, and cause remanded for further proceedings consistent herewith.