Summary
In Hegeman v. Moon (supra) an indebtedness was acknowledged but a distinct promise to pay was embodied in the direction to the maker's executors to pay one year after the maker's death.
Summary of this case from Hoag v. Garden City Bank & Trust Co.Opinion
Argued March 1, 1892
Decided March 15, 1892
Benjamin G. Hitchings for appellants. Charles P. Buckley for respondent.
The defendants object to the judgment herein because they claim the paper set out in the complaint is of a testamentary character, and 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 is 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 by its terms after the death of its maker, is valid. ( Carnwright v. Gray, 127 N.Y. 92.)
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 of things, and the promise was in substance that thirty days after the maker's death his 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 from him to the person to whom the money is thus acknowledged to be due. ( Kimball v. Huntington, 10 Wend. 675.) The acknowledgement 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 to her 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 acknowledgement 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 note 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 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. Whatever 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.
Ordered accordingly.