Majority
p. 163Hadley v. Reed. (Supreme Court, General Term, Second Department. December 10,1890.) Argued before Barnard, P. J., and Pratt, J.
Headnote
Negotiable Instruments—Consideration—Married Women.A note given by a married woman to one of her children to equalize the distribution of her estate among them, without other consideration than natural love and affection, is void; and her other children, in an action against the estate, are not estopped from disputing it, where there was no act or declaration on the part of any of them to mislead the payee.
Appeal from circuit court, Westchester county.
Action by Ella S. Hadley against Mary Jane Reed, as administratrix of Jane Lu Gar, deceased, upon a promissory note made by said Jane Lu Gar payable to the order of plaintiff, one of her daughters, and alleged to have been given to equalize the distribution of the estate of the maker among her children. From a judgment for defendant entered on the dismissal of the complaint on trial by the court, a jury having been waived, plaintiff appeals.
Martin J. Keogh, for appellant. John Chetwood, for respondent.
The law seems to be firmly settled that natural love and affection do not constitute a sufficient consideration to support an executory contract. Whitaker v. Whitaker, 52 N. Y. 372 ; Fink v. Cox, 18 Johns. 145 ; Harris v. Clark, 3 N. Y. 93 . Starting from this point, the question arises
p. 164
whether there is anything to take the case from under this rule. The counsel for the appellant claims that the note was given to equalize the distribution of the maker’s estate among her children; but this would not be a sufficient consideration. Parish v. Stone, 14 Pick. 198 . Neither has the claim that the defendant and the other heirs are estopped from denying the validity of the note any merit. The note was given by the maker of her own free will, and the consent of her other children was neither necessary nor asked nor given. Besides, all the children were not present at any one time when the matter was talked over, and there is no proof of any act or declaration on the part of the defendant, or any of her sisters, which could be said to have misled the plaintiff. Again, the maker being a married woman at the inception of the note, there is no proof that she was carrying on a separate business, or that it was made for the benefit of her separate estate, or that it was for property furnished at the time. The note, therefore, being without consideration, was void. Linderman v. Farquharson, 101 N. Y. 434 , 5 N. E. Rep. 67 ; Bank v. Pruyn, 90 N. Y. 254 . The judgment must be affirmed, with costs.
Cases cited
- Fink v. Cox 18 Johns. 145 p. 163
- Harris v. Clark 3 N. Y. 93 p. 163
- Linderman v. Farquharson 101 N. Y. 434 p. 164