Dunckel v. Failing — 5 N.Y.S. 504

Majority

p. 504

Dunckel v. Failing et al.

(Supreme Court, General Term, Third Department.

May 27, 1889.)

Headnote

1. Contracts—Consideration—Compromise.

If a creditor receives as the proceeds of a policy of insurance on the life of her debtor, payable to her, a greater sum than her debt, and gives her note to the debtor’s widow for a sum less than the excess, such transaction does not constitute the compromise of a doubtful claim, as there is no pretense of legal obligation to pay the excess to the widow, and the note is without consideration.

8. Fraud—What Constitutes.

The fact that deceased owed other creditors, and was insolvent, would not make it fraudulent in him to make the policy payable to one creditor alone.

Appeal from special term, Montgomery county.

Action by Ella L. Dunckel against Ephraim Failing and Ira T. Dunckel, executors, etc., of Elizabeth Dunckel,. deceased, on a promissory note given by defendants’ testatrix to plaintiff. Judgment for defendants, and plaintiff appeals.

Argued before Learned, P. J., and Landon and Ingalls, JJ.

D. 8. Morrel and John C. Wheeler, for appellant. Weller & Moore, for respondents.

One Harmon Dunckel, about a year or so before his death, obtained a policy of insurance on his life, payable to Elizabeth Dunckel, his mother, defendants’ testatrix, to whom he was indebted. He died in 1879, and she received the insurance money, $2,000, a few months afterwards. He had no property, and was in debt. He owed the plaintiff $1,250, which she could not collect. Peter A. Dunckel, father of plaintiff, says he was authorized to act for his daughter; that she made a claim against Elizabeth Dunckel (now deceased) for money due her; and that he told Elizabeth Dunckel it was hard for plaintiff to lose the whole amount; that Elizabeth said she would give a note of $550; that accordingly she gave the note in suit, dated May 30, 1884, for that amount, payable six months after her death, to plaintiff or bearer, with interest. Some of the assessments on the policy of insurance were paid by Elizabeth. It does not appear how much was paid by Harmon. It was held by the referee and by the learned justice that the note was without consideration. The plaintiff now insists that it was valid, because given in compromise of a disputed claim. So far as we can see, the learned justice was quite correct in saying that this was in fact only a claim on the good nature of Elizabeth. It is evident that there is nothing to compromise where there is no claim of legal obligation; and we fail to see any proof of any legal claim. Mo facts are shown on which to base such a claim. Harmon’s debt to plaintiff did not constitute a claim against Elizabeth.

Something was argued of the wrong done to Harmon’s creditors by his payment of premiums. There is no proof that he paid any. Some were unpaid

p. 505

at his death. Furthermore, as he owed Elizabeth, there seems tp have been no fraud in'his attempting to secure her by this policy. It was a just and proper act in him to secure a creditor in this way; and that act furnished no ground of complaint, so far as we discover, on the part of another creditor. We think that the judgment should be affirmed, .with costs.