Summary
finding the phrase “raise the presumption of a legal consideration” in a will
Summary of this case from Sipko v. Koger, Inc.Opinion
02-06-1900
WARD v. BUSH et al.
Vail & Ward, for complainant. E. S. Savage, for defendants Daly and Terrill, executors. Otto Grouse, for defendants Bush and others.
Bill by Clarence D. Ward against Laura Bush and others to recover a legacy. Decree for complainant.
Vail & Ward, for complainant.
E. S. Savage, for defendants Daly and Terrill, executors. Otto Grouse, for defendants Bush and others.
STEVENS, V. C. By her will, Mary A. Van Ortwick made the following bequest: "Item. I give and bequeath unto Dr. J. J. Daly, of Rahway, N. J., the sum of one thousand dollars, for value received." Dr. Daly died in the lifetime of testatrix, and the question is whether the legacy lapsed. The rule is that a legacy does not lapse when given to pay a debt. It has been so held even where the debt was barred by the statute of limitations at the time testator made his will. Williamson v. Naylor, 3 Young & C. Eq. 208; Philips v. Philips, 3 Hare, 281; Turner v. Martin, 7 De Gex, M. & G. 429. The case is said to be one of mingled bounty and obligation, and the rule with reference to the lapsing of legacies being itself founded on presumed intention is held to be not applicable where the Intent appears to be to discharge a duty,—a duty which, manifestly, is owing as well to the estate of the creditor as to the creditor himself. On much the same principle, a legacy given to and accepted by a widow in lieu of dower is not subject to abatement, proportionally with other legacies, on a deficiency of assets; for the legacy is considered as a purchase of the dower. Heath v. Dendy, 1 Russ. 546; Williamson v. Williamson, 6 Paige, 298. In the case at bar there is enough to show that the legacy was given, not as mere bounty, but in discharge of an obligation. It need not appear to have been an exact equivalent to it. Philips v. Philips, 3 Hare, 292. The testatrix says that she gives it "for value received." These words, as well understood by laymen as by lawyers, raise the presumption of a legal consideration moving from the promisee sufficient to sustain the promise. Holliday v. Atkinson, 5 Barn. & C. 501; Clayton v. Gosling, Id. 360. It is so held not only in the case of notes and bills, but of other contracts (Whitney v. Stearns, 16 Me. 397), and even of deeds of land (Jackson v. Alexander, 3 Johns. 493). In the case last cited, where the deed was expressed to be for "value received," and could only operate as a bargain and sale under the statute of uses, Kent, C. J., says: "'Value received' Is equivalent to saying money was received, or a chattel was received. It is an express averment ex vi termini of a quid pro quo." In the case at bar no evidence was offered on either side. There being, however, in the will itself, an admission of valuable consideration received, the bequest comes within the abovementioned rule, and must be held not to have lapsed by Dr. Daly's death in testatrix's lifetime. Duncan v. Franklin Tp., 43 N. J. Eq. 144, 10 Atl. 546, it was said, lays down a contrary rule. But the decision there was placed upon the ground that the expression, "his services in assisting me at different times," did not, standing alone, Import obligation. It might have had reference to mere voluntary courtesy. Here the words used do, prima facie, import obligation. They import such consideration as would, in an action at law, support a promise. They must, therefore, in this court, suffice to indicate an intention on the part of testatrix to discharge a legal obligation, and not to confer a mere bounty.