Kirkpatrick v. Pyle

11 Del. 569

Opinion

The Court, Comegys, C. J.,

announced the following opinion in the case :

The question whether the paper, upon which the action in this case is founded, is the proper subject of a suit, has been fully and forcibly presented by the counsel on both sides, and is one of much importance.

The paper in controversy bears date the 28th day of May, 1873, and the maker of it did not die until September 2, 1880. There is no question of the due execution of the instrument, nor any that simultaneously therewith it was delivered to the plaintiff. Its form is as follows:

$1000 Wilmington, Delawabe.

Six months after my death I do order and direct my administrator to pay Mary F. Kirkpatrick, or order, one thousand dollars without defalcation for value received.

Witness my hand and seal this twenty-eighth day of May, A.D., 1873.

(Signed) Mabtha Kibkpatbick. [seal] Witnesses present,

Wm. H. Geubb,

L. P. Bush.

The defendant has filed a single plea to the declaration setting forth a certain state of facts from which, he alleges, an inference is required that the paper in question is testamentary, and not an instrument for the payment of money; and if it be testamentary, this court has no jurisdiction to entertain a suit upon it. It is meant to be a plea to the jurisdiction, and we treat it as such. The defendant traverses the facts of the plea by his short pleading, and issue is made between the parties. By arrangement between the counsel, it is agreed that the court shall first determine for itself whether there is ground for the defendant’s plea; and it will be asked, in case there appears to be such prima faoie,“to submit the case to a jury, that the facts alleged may be inquired of and passed upon as in other cases. We approve of this arrangement, though without meaning to give any opinion upon what our judgment would be, in case they should be found by a jury to be as averred in the plea. The submission of them to the jury and their affirmative finding would be not to decide the question of jurisdiction, but to render certain the matter of the plea, leaving to the court to determine the ultimate question.

What is the nature and character of the instrument sued upon ? Does it express a sense of pecuniary liability by the defendant’s testator to the plaintiff, or is it a testamentary paper only ? The defendant takes the latter view of it; but the plaintiff asserts it to be an instrument, the delivery of which to him by the deceased, imposed upon her a legal liability which he can enforce by this action. The question for us to decide is this: Does this paper import by its terms liability on the part of the testatrix to the plaintiff for money, or a state of indebtedness by her to the plaintiff which prompted the making of the instrument and its delivery ? If it does, the defendant admits there is no ground for his contention. But if not, then he insists that it is a mere direction to her prospective representative to pay money, which makes it testamentary. It is not disputed that the test of its testamentary character is its revocability by the testatrix, which is the rule with respect to all provisions in wills. A single question is all we have to deal with.

It is undoubtedly true, generally, that all verbal contracts and all parol writings, are void unless they are founded on a valid consideration. Without it they are naked contracts. In fact, no instruments imposing pecuniary obligation are valid without consideration. But some of them are so constructed as to import in law such consideration without any being expressed. These are commercial instruments, commonly called commercial paper, and writings or instruments under seal. For reasons, at one time (when most men could not write and the only mode of giving their assent to a writing was by affixing to it their individual seal with its own device), great solemnity and importance were thrown about the act of impressing the wax with the maker’s seal; and because of such he was not allowed to dispute the validity of the instrument, by averring that there was no consideration for it.. It was taken, conclusively, as his deliberate, well-considered act, and to be binding upon him. Nothing but fraud practiced upon him when he made it, or duress, or something that showed it was not, in reality, his act and deed, could be set up against its validity. Such is the law still; and it is also the law, and has always been so, that no parol proof will be heard to alter, explain, add to, or take from any of its terms. To allow this would be to destroy its value as a certain, definite expression of the maker’s purpose in executing it, and introduce uncertainty, confusion and doubt created by verbal testimony _ And while this is true, it is none the less true that whatever is expressly stated in the instrument or necessarily results from what is stated, the party making it is estopped to deny—the law refusing to hear any averment or proof against his solemn declaration under his seal.

The learned counsel for the defendant do not attempt to deny the law as stated; but they contend that the sanctity of a seal does not attach to the paper before us, although in point of fact one appears opposite the maker’s name. They contend that this is in form virtually an inland bill of exchange, or that it is a sort of draft, or order, upon a then non-existing person and who never has yet existed, for the payment of a sum of money; and that upon the expiration of six months after the maker’s death. They construe it to be at the utmost, if anything, only a legacy to the plaintiff, subject to the power of revocation. They contend, and cite abundant authority for doing so, that what in reality is a mere testamentary paper, cannot claim any better quality, simply because of its mere form. This is undoubtedly true. They also claim that the bare fact that the gift of a legacy is made under the form of a sealed paper does not impart to it any greater consequence than an unsealed paper would—that is, does not impress it with the value of being what is called a purchased legacy, making the legatee a purchaser and causing him to have preference in the administration of an estate over all legatees who are mere volunteers; nor, they contend, can it be received in any light which will withdraw it from the ordinary case of a simple legacy, given by a separate but valid instrument, to be proved, approved and allowed in this State by our judge of probate, the register, as any other testament. They insist upon it that this quality of legacy appears sufficiently upon the very face of the paper; but, if not thus considered, yet the form of the paper taken in connection with the period when the money mentioned in it is to be paid, creates a doubt or is sufficient to raise one about what it really is; and that the method of solving such doubt, so as to determine whether this court will take cognizance of the case or not, is by an issue to be tried by a jury at the bar of the court.

The counsel for the plaintiff contend that here is no case of a legacy, but one of the creation of a debt, to be discharged like any other debt; and they insist that to allow proof to be offered that it is a legacy, would be to upset those certain and well-established rules of evidence before noticed against interfering with the terms of a written paper. While admitting this, it at the same time is the constant course elsewhere with respect to disputes like the present (we have had none heretofore) that where there is in the mind of the court doubt about the intention of a testator with respect to a paper executed by him before his will, and having a form different from such an instrument, it will always submit the solution of such doubt to a jury in some appropriate form of issue. This is usually a question for a probate court, where it is the constant practice to send issues of this kind to a common law tribunal; but, as here now, it may be a question for a court of law to decide, whether a paper on which suit is brought, is cognizable at law or is a legacy, to be first probated as other wills. In case of doubt, then, it will not take cognizance without the finding of a. jury upon the question of a testator’s intention—one of fact simply.

If we were to refuse to examine into a case where suit is brought against a decedent’s estate upon a sealed instrument, and defence made that it is a legacy gift and not an obligation of indebtedness, simply because of the character of the instrument, we should strain the rule to an extent not done heretofore, and make it absurd to a degree that would' reconcile the most conservative to its abandonment entirely. Wherever a case arises for inquiring into the true meaning of the act of a testator with respect to an instrument by him made, an enlightened court will resort to any means to ascertain such meaning consistent with such purpose, and the general rules and policy of the law. Although such instrument be a deed or bond in mere form, yet if, on the face of it, it appears to have been meant to be a legacy merely, it will be taken to be a legacy, and this court will not allow it to be sued upon or rather, suit to be brought for such legacy, until regular proof of it as a testamentary paper has been made before the register and the paper admitted to probate. All this goes to support the defendant’s contention in this case.

The defendant further contends, and supports his plea by authority which cannot be disputed, that where a testator has not, in a paper payable post mortem, recognized himself either by intendment, or language, as under legal indebtedness to the party in whose favor it is made, such instrument is without consideration, purely voluntary, and testamentary in its character; and this, whatever form he may have given it. Testamentary, or not, is the only question in such cases. He insists that there is nothing, upon the face of the paper before us, to give it any quality withdrawing it from the rule I have stated, that a seal gives no vigor to a testamentary gift it would not have without it.

The plaintiff meets this plea however by calling our attention to the fact that, in addition to the circumstance that the paper is under seal, it contains the expression that it is made for “ value receivedand he presses upon us the consideration that these words show indebtedness, responsibility, liability, of a pecuniary nature to the plaintiff by the testator. To rebut this argument, the defendant claims that we should treat that expression as words of mere form, because they are usually part of the language of drafts, or bills of exchange (to which they liken this paper), and which are good without them. They also suggest, that, in such papers, they mean value received by the drawees from the drawers, and refer to it. Such, however, is not the case; they express a consideration moving from the payees to the drawers of them, the acceptance of the drawees being an admission that they have funds in hand of the drawers sufficient to meet them, and an undertaking to pay them. While we impute no great force to the paper in this case as a sealed instrument merely, to make it obligatory, and not testamentary,.{yet we cannot erase these words “ value received ” from it, any more than any other words in it; for, looking at the paper alone, and not searching elsewhere, for its meaning, they, clearly enough to our minds, show that the testatrix, when she made it, had in her mind a sense of obligation of indebtedness which she meant to satisfy, in the form of acknowledgment of liability to be discharged after her death. /' While if this were a parol instrument, without apparent consideration, we should refuse to entertain a suit with respect to it at all until it had undergone the appoval of the register ; yet, being a sealed paper, expressing value received, and as we think, plainly by that language creating a legal liability though not to be discharged in the lifetime of the maker, we feel constrained to regard it like any debitum in presentí soluendwm, in futurio. The mere question of the form of the instrument in our opinion is not of much moment; the fact of acknowledgment of liability clothes it with the quality of any other acknowledgment under seal of indebtedness. There is consideration, then, for the paper, without the aid of the seal; and this being decided the executor is estopped in this court to deny it. As a party cannot aver against his own deed, so neither will his legal representative be allowed to do it.

There is really no conflict of authority upon the question with which we have been dealing • and, therefore, we should not have thought it necessary to review the cases cited by counsel even if had had time—which we certainly cannot have had. It is from no want of respect for their arguments; which were certainly as able as elaborate. In fact,all the cases decided anywhere upon the point considered have been opened and submitted to us, with fine critical comments of great service in understanding them. None of them however presented by the defendant’s counsel justify us, as we think, in holding this paper to be other than one intended to express legal liability on the part of its maker, and provide for its discharge. We therefore hold it to be, upon the face of it, a valid legal instrument to secure the payment of acknowledged indebtedness, and not a testamentary gift. If it had been a simple direction to pay, it would have been testamentary only; but the expression “ value received,” having a certain meaning in law, must be considered as doing for the instrument that which forbade us to treat it otherwise than as we have done.

There was a suggestion rather diffidently made—that though the instrument here contains the words “ value received,” yet that in fact it was but a mere voluntary paper, and therefore only to be treated as testamentary. In answer to it, a sufficient reply is, that voluntary bonds are good against the obligors, and everybody else but creditors, or those occupying a quasi relation of such.

Another point was made and much stress was laid upon it by the defendant’s counsel that the paper here had no effect during the lifetime of the testatrix; but we do not view it in that light. Its obligatory character did not depend upon her death, but only provision for discharge of it.