Hegeman v. Moon — 43 N.Y. St. Rep. 662

Majority

p. 662

Joseph Hegeman, Resp’t, v. Christina S. Moon et al., App’lts.^[1]

(Court of Appeals,

Filed March 15, 1892.)

Headnote

Decedent’s estate—Claims against—Direction to executors to pat.

Plaintiff advanced certain moneys to testatrix’ son for his own account, and on that of his mother. Subsequently testatrix paid a portion of the indebtedness, received the note, and in consideration of plaintiff’s agreement to accept the balance without interest, executed and delivered to him a paper directing her executors, one year after her death, to pay to plaintiff a specified sum, “being the balance due him for cash advanced at various times by him to my son and others, as per statement rendered by him.” Held, that the instrument was not of a testamentary character, but was a promissory note, payable one year after the maker’s death, and imported a consideration and constituted a claim against the maker.

Appeal from judgment of the supreme court, general term, second department, affirming order overruling demurrer to complaint.

Demurrer to complaint. The complaint stated, in substance,, that between 1863 and 1867 the plaintiff advanced to his nephew,, Adrian Hegeman, for his own account and the account of his mother, Cornelia W. Hegeman, various sums, amounting in all to about. $3,075, which Adrian agreed to repay. On January 1, 1869.. there was due plaintiff for principal and interest, $3,363.41, for which Adrian made and delivered to plaintiff his promissory note payable on demand, with interest. On the 8th of February, 1871, Cornelia W. Hegeman paid plaintiff a bond of the Wabash Railroad of the par value of $1,000 on account of above indebtedness, and plaintiff on the same day surrendered to her the note of Adrian and extended the time for the payment of the moneys, and! in consideration thereof, and of plaintiff s agreement to accept the,

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principal of the amount due without interest, and of other sufficient considerations, the said Cornelia W. Hegeman made and -delivered to plaintiff her draft, or order in writing, a copy of which is as follows:

■“$1976.90-100. Brooklyn, February 8, 1871.

“ One year after my death I hereby direct my executors to pay to Joseph Hegeman, his heirs, executors or assigns, the sum of nineteen hundred and seventy-six dollars and ninety cents, being the balance due him for cash advanced at various times by him to Adrian Hegeman, my son, and others, as per statement rendered by him this day, without interest.

“ Cornelia W. Hegeman.’’

Cornelia W. Hegeman died December 3, 1888, leaving a will which was duly admitted to probate and letters testamentary issued thereon to defendants as executors thereof. The executors qualified, and on the 3d of December, 1889, the plaintiff presented the said draft to the executors and demanded payment, which was refused. The plaintiff offered thereupon to refer the claim, which was also refused. The plaintiff further alleged there was due him from defendants as executors the sum of $1,976.90, and interest from December 3, 1889, and demanded judgment.

To this complaint the defendants demurred, on the ground that it did not state facts sufficient to constitute a cause of action. The ••special term overruled the demurrer and the general term affirmed that judgment, and certified it was proper to obtain a decision of this court before proceeding further in the action. And, therefore, defendants appeal here.

Benjamin G. Hitchings, for app’lts; Charles P. Buckley, for Tesp’t.

The defendants object to the judgment herein, because they claim the paper set out in the complaint is of a testamentary character, ana not being executed as provided for by the statute of wills, is for that reason void. They also object that if not of such a character it is a contract to answer for the debt, default or miscarriage of another person, or is one which, by its terms, is not to be performed within one year, and in either event is void, because it does not express a consideration.

We think-none of these objections are well founded. The instrument is, in its nature and substance, a promissory note, payable one year after the maker’s death.

It has just been held in the second division of this court that a promissory note, payable bv its terms after the death of its maker, is valid. Carnwright v. Gray, 127 N. Y., 92 ; 38 St. Rep., 56 .

In that case the instrument was in this form: “ Thirty days after death I promise to'pay Cornelius Carnwright fifteen hundred dollars, with interest,” and was signed by the maker. Of course the promise was impossible of strict performance. The maker could not pay after his death, and so his promise was, in one ■sense, an impossibility. The law, however, regards the substance ©f things, .and the promise was, in substance, that thirty days

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after the maker’s death hi-s estate should pay the sum promised by him in the note to be thus paid.

In the instrument now before us there is no promise expressed in terms, but there is -a direction to the executors of the maker to pay the named sum in one year from the maker’s death. There is the further statement that such sum is due the-payee for cash advanced at various times by him to the maker’s-son and others. The maker then signs such statement. From whom is the sum due? A written statement that a certain amount of money is due a payee'therein named, followed by the-signature of the maker of the statement, implies that the money is-due from the maker and is an indebtedness front him to the person to whom the money is thus acknowledged to be - due. Kimball v. Huntington, 10 Wend., 675 . The acknowledgment of the-indebtedness and that it is due implies a promise to pay it on demand. It is a promissory note within the statute. Id.

The addition of the words that the money is due the payee “for cash advanced at various times by him to Adrian Hegeman, my son, and others, as per statement rendered by him this day,” does not alter the implication that the money is due the payee from the-maker. It simply states the origin of the indebtedness of the-maker. It was not for money advanced directly to her, but toiler son and others. There is nothing inconsistent with her indebtedness to the payee in the fact of this acknowledged advance-of the money to the maker’s son. An original indebtedness may have arisen against the maker by the payee advancing at the maker’s request moneys to her son. And when she says that a certain amount is due the payee and signs the statement, with the addition of the origin of the indebtedness, the implication is-neither forced nor unnatural that she means that the amount is due from her or else she would not have signed the paper. The-time, when the money is to be payable is, however, altered by the direction given to her executor to pay it one year from her death. If there were no limitation, an acknowledgment that the debt-was due would imply that it was payable at once or on demand. The direction is, however, in the nature of a promise and expresses a time of payment and therefore excludes the presumption that it is payable immediately, which would otherwise arise from the use of the word due.

Being a promissory note it imports a consideration. Carnwright v. Gray, supra.

The defendants insist that even if the instrument be a promissory note and therefore within the principle that such an instrument in and of itself generally imports a consideration, no-such presumption exists when the instrument shows on its face there is no valid consideration. They urge that the noté in question shows on its face that the only consideration is an indebtedness of the son to the payee, and such consideration is not sufficient

' What has been already said disposes[1] of this claim, The note¡ shows an indebtedness from the maker, because such is the natural and fair implication to be derived from the language used. What

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ver may be implied from language actually used in an instrument is in judgment of law contained in it. Rogers v. Kneeland, 10 Wend., 219 .

The views we take answer the objections of the defendants as Above set forth, and it follows that the interlocutory judgment appealed from must be affirmed, with costs, with leave to defendants to answer over within twenty days after service of a copy of the •order of affirmance on payment of costs.

All concur. _