Mr. Justice Boggs
delivered the opinion of the court:
A citation was issued against appellants in the county court of McLean county, under the provisions of the 80th section of chapter 3 of the Revised Statutes, on the application of appellee, and proceedings were had thereunder seeking to require appellants to disclose their knowledge of any evidences of indebtedness or effects belonging to the estate of Joseph Jennings, for which apjiellee was administrator, which it was alleged they had concealed. During the examination in the county court it was disclosed that three promissory notes in controversy were in the possession of P. Y. Hamilton, who had been the attorney of Joseph Jennings in his lifetime, whereupon he was made a party defendant to the proceedings.
The county court found that a promissory note for $2737.50, executed by J. B. Horseman to Josephine Murphy, and by Josephine Murphy endorsed to Joseph Jennings, in the hands of Hamilton, with an endorsement from Joseph" Jennings to Wilford Jennings, was part of the estate of Joseph Jennings, and ordered Hamilton to turn it, with $172.62 interest collected thereon, over to the administrator. It found that two notes in the possession of Hamilton, dated October 2, 1894, one for $3310 and the other for $3309.20, both signed by Wilford Jennings and pajmble to Joseph Jennings, did not belong to Joseph Jennings at the time of his death, and refused to order them to be delivered to the administrator. The latter appealed to the circuit court of McLean county, where the case was heard, by agreement, upon the same evidence and the same judgment was entered. Both parties then appealed to the Appellate Court. The administrator assigned as for error the holding" of the circuit court that the two notes executed by Wilford Jennings to Joseph Jennings were not part of the estate, and its refusal to hold that Wilford should turn over to the administrator, as part of the estate, the proceeds of certain stock which Joseph Jennings held in his lifetime in Shinkle’s Loan Association and which was collected by Wilford in 1894. Appellants assigned as error the holding of the court that the note executed by J. B. Horseman was part of the estate and ordering it to be delivered to the administrator. In the Appellate Court the decree of the- circuit court, so far as it related to the Horseman note, was affirmed, but it was reversed so far as it related to the two notes executed by Wilford Jennings, and the cause was remanded, with directions to decree that the two last mentioned notes are part of the estate of Joseph Jennings and order them delivered to the administrator. From this judgment of the Appellate Court this appeal has been prosecuted by said Wilford Jennings.
From the evidence it appears that the stock in Shinkle’s Loan Association was assigned to appellant by his father, Joseph Jennings, the deceased intestate, and was recognized and treated as appellant’s property, and he exercised ownership over it long before his father’s death. It also appears that no question was made as to the ownership of the stock anterior to the appeal to the Appellate Court. Eveu if there was error in the judgment with reference to that question by the trial court, it could not be availed of in an appellate tribunal if there raised for the first time. Neither was there error in the finding of the trial court on that question, nor in the affirmance of the judgment on that question by the Appellate Court.
The evidence shows that Joseph Jennings, the deceased, died March 17, 1897. Some years prior to the date of his death he purchased property in the city of Normal and the title was taken in the name of his wife. She, by will, devised that property to her two daughters, both of whom were married, viz., Mrs. Murphy and Mrs. Story. The mother died in 1893, and the daughters sold and conveyed that property to one J. B. Morseman, who made notes to the daughters, secured by mortgage, evidencing the purchase price. Mrs. Josephine Murphy held one of these notes for the sum of about §2537.50. After the death of his first wife Joseph Jennings invested about §11,000 in California lands, which he subsequently disposed of, some of which Mrs. Murphy purchased from him and she assigned the Morseman note above mentioned to her father in part payment thereof. He placed the note, in the hands of F. Y. Hamilton, one of the appellants, for safe keeping. Hamilton was then the custodian of the note for Joseph Jennings, deceased. While the note was so in the custody of Hamilton, the owner thereof, Joseph Jennings, came to Hamilton’s office and told Hamilton he wanted to give the note to his son, Wilford, the appellant, and requested Hamilton to write an assignment of the note to Wilford. Hamilton wrote an assignment as requested, and Joseph Jennings signed the same and handed the note back to Hamilton to hold for Wilford, the son. Hamilton collected the' annual interest due thereon in May, 1895, and paid the same to Wilford. In May, 1896, he again collected the interest and again paid the same to Wilford. The father lived until March 17, 1897. The note was not actually in the hands of Wilford. Hamilton did business for both father and son and was entrusted with papers of both father and son. The son paid no consideration for the note, and the question is whether the gift of the note was a completed gift inter vivos.
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Mr. Justice Boggs
delivered the opinion of the court:
A citation was issued against appellants in the county court of McLean county, under the provisions of the 80th section of chapter 3 of the Revised Statutes, on the application of appellee, and proceedings were had thereunder seeking to require appellants to disclose their knowledge of any evidences of indebtedness or effects belonging to the estate of Joseph Jennings, for which apjiellee was administrator, which it was alleged they had concealed. During the examination in the county court it was disclosed that three promissory notes in controversy were in the possession of P. Y. Hamilton, who had been the attorney of Joseph Jennings in his lifetime, whereupon he was made a party defendant to the proceedings.
The county court found that a promissory note for $2737.50, executed by J. B. Horseman to Josephine Murphy, and by Josephine Murphy endorsed to Joseph Jennings, in the hands of Hamilton, with an endorsement from Joseph" Jennings to Wilford Jennings, was part of the estate of Joseph Jennings, and ordered Hamilton to turn it, with $172.62 interest collected thereon, over to the administrator. It found that two notes in the possession of Hamilton, dated October 2, 1894, one for $3310 and the other for $3309.20, both signed by Wilford Jennings and pajmble to Joseph Jennings, did not belong to Joseph Jennings at the time of his death, and refused to order them to be delivered to the administrator. The latter appealed to the circuit court of McLean county, where the case was heard, by agreement, upon the same evidence and the same judgment was entered. Both parties then appealed to the Appellate Court. The administrator assigned as for error the holding" of the circuit court that the two notes executed by Wilford Jennings to Joseph Jennings were not part of the estate, and its refusal to hold that Wilford should turn over to the administrator, as part of the estate, the proceeds of certain stock which Joseph Jennings held in his lifetime in Shinkle’s Loan Association and which was collected by Wilford in 1894. Appellants assigned as error the holding of the court that the note executed by J. B. Horseman was part of the estate and ordering it to be delivered to the administrator. In the Appellate Court the decree of the- circuit court, so far as it related to the Horseman note, was affirmed, but it was reversed so far as it related to the two notes executed by Wilford Jennings, and the cause was remanded, with directions to decree that the two last mentioned notes are part of the estate of Joseph Jennings and order them delivered to the administrator. From this judgment of the Appellate Court this appeal has been prosecuted by said Wilford Jennings.
From the evidence it appears that the stock in Shinkle’s Loan Association was assigned to appellant by his father, Joseph Jennings, the deceased intestate, and was recognized and treated as appellant’s property, and he exercised ownership over it long before his father’s death. It also appears that no question was made as to the ownership of the stock anterior to the appeal to the Appellate Court. Eveu if there was error in the judgment with reference to that question by the trial court, it could not be availed of in an appellate tribunal if there raised for the first time. Neither was there error in the finding of the trial court on that question, nor in the affirmance of the judgment on that question by the Appellate Court.
The evidence shows that Joseph Jennings, the deceased, died March 17, 1897. Some years prior to the date of his death he purchased property in the city of Normal and the title was taken in the name of his wife. She, by will, devised that property to her two daughters, both of whom were married, viz., Mrs. Murphy and Mrs. Story. The mother died in 1893, and the daughters sold and conveyed that property to one J. B. Morseman, who made notes to the daughters, secured by mortgage, evidencing the purchase price. Mrs. Josephine Murphy held one of these notes for the sum of about §2537.50. After the death of his first wife Joseph Jennings invested about §11,000 in California lands, which he subsequently disposed of, some of which Mrs. Murphy purchased from him and she assigned the Morseman note above mentioned to her father in part payment thereof. He placed the note, in the hands of F. Y. Hamilton, one of the appellants, for safe keeping. Hamilton was then the custodian of the note for Joseph Jennings, deceased. While the note was so in the custody of Hamilton, the owner thereof, Joseph Jennings, came to Hamilton’s office and told Hamilton he wanted to give the note to his son, Wilford, the appellant, and requested Hamilton to write an assignment of the note to Wilford. Hamilton wrote an assignment as requested, and Joseph Jennings signed the same and handed the note back to Hamilton to hold for Wilford, the son. Hamilton collected the' annual interest due thereon in May, 1895, and paid the same to Wilford. In May, 1896, he again collected the interest and again paid the same to Wilford. The father lived until March 17, 1897. The note was not actually in the hands of Wilford. Hamilton did business for both father and son and was entrusted with papers of both father and son. The son paid no consideration for the note, and the question is whether the gift of the note was a completed gift inter vivos.
Counsel urge as being conclusive of the point against Wilford, that the latter, while on the witness stand, testified that he had no interest in the Morseman note and claimed none. We have consulted the record with reference to this contention, and think it clear Wilford was endeavoring to state he claimed no interest in the proceeds of the sale of the property in the city of Normal which his mother owned at the time of her death and which she devised to her daughters, Mrs. Murphy and Mrs. Story; that he understood his sisters were entitled to the notes which had been given as the purchase price of the Normal property and he had no interest in the proceeds of the sale of that property. The facts were, the note in question was given to Mrs. Murphy by the purchaser of the Normal property, and that she assigned it to her father in part payment of the price of some property in California which she purchased of her father, and it seems Wilford did not know the note about which the contention arose was one that Mrs. Murphy had assigned. His statement did not justify a conclusion against him, but the proper solution of the contention was left to depend upon whether a completed gift inter vivos was established by the proof. The rules of law relating to such gifts have been long established. Delivery of the subject matter of a gift inter vivos is necessary to the validity of such a gift. Words of gift are not sufficient, but there must be an actual and positive change of possession. Delivery to the ag'ent of the donor, to be by such agent delivered to the donee, is not effectual if the donor dies before the ag'ent has carried out his instructions, as the death of the principal revokes the authority of the agent. But if the donor delivers the property to an ag'ent of the donee and parts with the possession and all right of control over the property, and the agent is invested with actual possession thereof, the gift becomes complete though the donee does not himself have the manual possession of the property. The possession of the agent is the possession of the principal—the donee. That Joseph Jennings intended to vest Wilford with the full and complete and immediate ownership of the note cannot be denied. That he supposed he had done so is equally clear. That the gift was to take effect in presentí is unmistakable. Such is the testimony of Hamilton., There was no contervailing testimony, and the payment of the interest for two years to Wilford is inconsistent with any other position. The proper view is, that when Joseph Jenning's, after writing his name to the assignment upon the note, handed .the note to Hamilton he intended Hamilton should receive it as the agent of Wilford. Hamilton so understood that such was the effect of the acts of Joseph, and Joseph had a like understanding. Hamilton, the father and the son all acted upon this understanding. The father reserved no control over the note but actually abandoned all dominion over it. Hamilton received the note from the father as the agent of Wilford and so ever afterwards held it. The conclusion seems irresistible that the gift inter vivos was complete. The finding' to the contrary by the circuit court was erroneous and the Appellate Court erred in affirming such finding.
On the second day of October, 1894, Joseph Jennings executed and delivered to Wilford Jennings a deed conveying to said Wilford 82.74 acres of land. The deed recited a consideration in the sum of $6619.20, and Wilford executed two notes therefor, one for $3310, due one year after date, and the other for $3309.20, due two years after date, each specifying they were non-interest bearing. On the same day Joseph executed a will making bequests to • Emeline LaRue (a daughter) and to the children of Lucinda Janes (a daughter) who were living on the sixth day of June, 1890. On the same day the following instrument was executed, to-wit:
"October 2, 1894.
“It is hereby agreed by and between Joseph Jennings and Wilford M. Jennings, both of McLean county, Illinois, that two notes dated October 2,1894, for $3310 and $3309.20, respectively, given by Wilford M. Jennings to Joseph Jennings, shall be left in escrow with IP. Y. Hamilton on the following conditions and terms: Upon the death of said Joseph Jennings the said Wilford M. Jennings shall pay the bequests made by the said Joseph Jennings by his last will and testament, as follows, viz.: To Emeline LaRue, or her children in case of her death, the sum of $1200, as specified in said will, and to the children of Lucinda Janes living on the 6th day of December, 1890, the sum of $1000, (one thousand dollars,) as specified in said will, and when all of said payments shall have been made by the said Wilford M. Jennings then the notes herein described shall be canceled and delivered up to the said Wilford M. Jennings as fully paid up and discharged. Receipts from said parties, or their legally constituted representative or representatives, shall be sufficient evidence to the said Hamilton for the delivery of said notes under this agreement.
“Dated the day and-year first above written.
Joseph Jennings,
Wileobd Jennings.”
This instrument, and the two notes therein referred to, were delivered to said Hamilton. Joseph Jennings, who was a widower, re-married in November, 1894. The will referred to in the instrument was destroyed soon after the second marriage and a second will executed. The sefcond will was destroyed by the testator in the spring of 1895. No other will was executed, and Joseph Jennings died intestate on March 17, 1897. The escrow agreement and the notes remained in the hands of Hamilton during the lifetime of Joseph Jennings and were produced in the county court by him. A payment in the sum of $1000 was endorsed on the $3310 note on December 1,1895. The county court held the notes were no part of the assets of the estate of Joseph Jennings, deceased. The circuit court affirmed the holding, but the Appellate Court reached a different conclusion and adjudged the notes belonged to the estate of the payee, Joseph Jennings.
Even if the instrument should, as the appellant contends, be construed to be an agreement that he should be allowed to discharge both notes by the payment of a smaller sum to his sisters or their children, it could not be so enforced for the lack of consideration to support it. An agreement that a smaller sum shall be received in discharge of an indebtedness in a larger amount is without consideration and cannot be enforced as against the holder of the debt. (Ostrander v. Scott, 161 Ill. 339.) The testimony of Wilford tended to show that Joseph Jennings contracted to sell the land to him for $3200. The deed, however, recited that the consideration for the land was $6619.20. The father exacted of Wilford, and the latter executed, two notes, amounting in the aggregate to the exact sum mentioned in the deed. These notes were given for the land. The evidence showed the land was worth even more than the amount of the two notes. While it is admissible to show the consideration for a conveyance was different from that mentioned in the deed, the testimony of Wilford cannot be regarded as sufficient to overcome the other evidence as to the real truth of the matter. The true state of the case, as we think it is unmistakably established by the evidence, is, that Joseph Jennings sold the land to Wilford for $6619.20; that the notes were executed to secure the payment thereof; that Joseph Jennings attempted to make a testamentary disposition of the $3200 of the notes to Emetine LaRue and the children of Lucinda Janes and the remainder to Wilford, but not to take effect during the lifetime of the donor. The disposition of the property attempted to be made was not absolute, but was executory and testamentary in character. It was not declared by a writing executed in conformity with the statute relating to wills, and was for that reason inoperative. (Comer v. Comer, 120 Ill. 420.) It could not be upheld as a gift inter vivos, for the reason it was not carried to completion by delivery of the subject matter of the gift. We concur in the conclusion reached by the Appellate Court that these two notes were assets of the estate of Joseph Jennings, deceased.
The judgment of the Appellate Court as to the disposition of the note given by Horseman to Mrs. Murphy is reversed, otherwise the judgment of that court is affirmed. The cause is remanded to the county court, with directions to enter a judgment, order or decree directing said Hamilton to deliver to the appellee administrator the notes executed by appellant Wilford Jennings to Joseph Jennings, and to deliver to Wilford Jennings the note payable to Mrs. Murphy and assigned by Joseph Jennings to Wilford Jennings. The costs in this court will be paid as follows: One-half by Wilford M. Jennings and the other half by the appellee administrator in due course of administration.
Reversed in part and remanded.