76 Mass. 83 | Mass. | 1857
This case presents the naked question of a legal consideration for the note sought to be recovered. The facts offered to be shown by the evidence were that the husband, who was the original debtor, had died, leaving no estate real or personal liable to the payment of his debts, or the subject of distribution among his heirs, or which might be applied by way of an allowance to his widow in any form. The case stated is that of one dying without leaving anything to pass to anybody for any purpose, or in any form whatsoever. Whether this fact can be shown may be a subject of inquiry hereafter; but, as regards the legal question now before us, we must take the case to have been that of a widow who, at the solicitation of a creditor of her deceased husband, gives to him a promissory note promising to pay him the amount of his debt due from her husband, in a case where there are no assets to be administered, and where no possible benefit can result to the party giving such note, and no possible damage is suffered by the payee.
In the case supposed, the widow would derive no benefit from the discharge of a debt due by her deceased husband. Nor do we perceive how any possible damage to such creditor could arise from having given a receipt to the widow purporting to discharge such demand. The giving of the receipt would not, under the circumstances here offered to be shown, establish a legal consideration for the note. In the opinion of the court, upon the facts offered, if shown to exist, the case would be that of a voluntary promise, not founded on any legal consideration.
Exceptions sustained.
