By the Court, Brown, J.
I shall examine the two principal questions discussed upon the argument of this, cause. 1st. Whether the bond claimed by the respondents, for the sum of $1000, and which the surrogate adjudged, by -his decree, should be paid out of the proceeds of the estate, is a valid, legal claim, against the appellants. And, 2d. Whether the surrogate, upon the proceedings for the final accounting, had jurisdiction and authority to make a decree for the payment of the money mentioned in the*bond, when the same was disputed, and the liability of the appellants to pay the amount claimed; and no judgment had been obtained for its recovery.
The case comes before this court, upon an appeal from a decree of the surrogate of the county of Dutchess. The appellants are the executors of the will of Rebecca Thompson, deceased; who, after the lapse of eighteen months from the time of granting letters testamentary, applied by petition to render a final account of their proceedings, according to the 70th section of the act, (2 R. S. 35, 2d ed.) concerning “ the duties of executors and administrators in rendering an account,” &c. The respondents were made parties to the proceedings, in respect to a legacy given them by the will; and they are also [311] named in the citation as creditors of the testatrix. Upon the hearing and examination before the surrogate, the respondents presented, and claimed to be allowed and paid, the amount due for principal and interest, upon a bond, dated April 29th, 1843, by which the testatrix promised to pay to the respondents, at her decease, “ $1000, to endow a scholarship, to be known by the name of the Rebecca Thompson scholarship.” It was sealed in the usual manner; the signature was proved to be in her hand-writing; and the body of the instrument was also proved to be in the hand-writing of Mr. Kendrick, then the secretary of the Baptist Education Society, and who is since deceased. The respondents also gave in evidence, the declarations of the testatrix, that Mr. Kendrick had been there, and she had given a bond, payable at her death, to endow a scholarship in the Hamilton institution. The due execution of the bond, the objects for which it was given, and the consideration—if any—upon which the promise must rest, admit of no dispute. There was "no evidence, however, that it had ever before been presented to the executors, as a claim against the estate, or any proceedings instituted, or judgment rendered for its recovery.
The common law distinguishes contracts into agreements by specialty, and agreements by parol. If merely written, and not under seal, they are by parol; and before they can be enforced, a consideration must be proved. The solemnity, and deliberation, observed in the execution of a specialty, gave the transaction under that code, an importance, and a character which was withheld from a simple contract. For, between the two, there was this manifest difference; in a contract by parol, a consideration must appear, to give it vitality ; while, in a contract under seal, no consideration need appear, to make it obligatory. The geal affixed to the instrument, was it-gelf evidence of a sufficient consideration. It was a good defense to an action upon a specialty^ that the consideration was illegal, or that it was obtained by fraud ; but a mere failure, or a want of consideration, formed no defense. (2 Wilson, 347. 2 John. 177. Dorian v. Sammis, reported in a note to this case. 20 Id. 130.) The revised statutes have modified this rule of the old law. The dig[312] nity of a seal has been greatly impaired, and the distinction between contracts under seal, and contracts by parol, in its most essential aspect, has been taken away. “ In every action upon a sealed instrument, and when a set-off is founded upon a sealed instrument, the seal thereof shall only be presumptive evidence of a sufficient consideration, which may be rebutted in the same manner, and to the same extent, as if such instrument was not sealed.” (2 R. S. 328, § 97, 2d ed.) In Case v. Boughton, (11 Wend. 107,) one of the questions-of law was,' whether the failure of consideration could be pleaded to an action, brought upon a sealed instrument; Chief Justice Savage delivered an opinion ’in the affirmative, declaring that in this respect, there is now no distinction between an instrument with a seal, or without one. Such was also the judgment of the court in McCurete v. Stevens, (13 Wend. 527 ;) in Russel v. Rogers, (15 Id. 351;) in Mann v. Eckford’s Executors, (15 Id. 502;) and in Tallmadge v. Wallis, (25 Id. 107.) In the case of Mann v. Eckford’s Executors, (15 Id. 519,) Mr. Justice Bronson noticed the distinction to be taken in the application of the rule laid down in the statute, to sealed contracts made anterior to the time it took effect, and those made since. “So far,” he says, “ as this statute goes only to the remedy of the contracting parties, there can be no very great evil in applying it to sealed obligations, executed prior to the revision. But in making the application, care must be taken that we do not go beyond the form of the remedy, and interfere with the obligation of the contract. It is a familiar principle in jurisprudence, that a statute shall not have a retrospective effect, so as to destroy a vested right; and this principle of natural justice, so far as relates to the obligation of contracts, is recognized and enforced, by the constitution of the United States. This statute must, I think, receive a more restricted construction, when applied to antecedent agreements under seal, than it will require in relation to contracts entered into since the act was passed.” The bond to pay the sum of $1000 to the respondents, was made since the passage of the act, and must, therefore, be subject to its provisions, as well in respect to the evi[313] dence and the form of the remedy, as to the obligation of the contract. The consideration is open to inquiry and examination, to the same extent as if it was a contract by parol. And if that essential element is wanting, the power of the respondents to enforce it must fail.
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By the Court, Brown, J.
I shall examine the two principal questions discussed upon the argument of this, cause. 1st. Whether the bond claimed by the respondents, for the sum of $1000, and which the surrogate adjudged, by -his decree, should be paid out of the proceeds of the estate, is a valid, legal claim, against the appellants. And, 2d. Whether the surrogate, upon the proceedings for the final accounting, had jurisdiction and authority to make a decree for the payment of the money mentioned in the*bond, when the same was disputed, and the liability of the appellants to pay the amount claimed; and no judgment had been obtained for its recovery.
The case comes before this court, upon an appeal from a decree of the surrogate of the county of Dutchess. The appellants are the executors of the will of Rebecca Thompson, deceased; who, after the lapse of eighteen months from the time of granting letters testamentary, applied by petition to render a final account of their proceedings, according to the 70th section of the act, (2 R. S. 35, 2d ed.) concerning “ the duties of executors and administrators in rendering an account,” &c. The respondents were made parties to the proceedings, in respect to a legacy given them by the will; and they are also [311] named in the citation as creditors of the testatrix. Upon the hearing and examination before the surrogate, the respondents presented, and claimed to be allowed and paid, the amount due for principal and interest, upon a bond, dated April 29th, 1843, by which the testatrix promised to pay to the respondents, at her decease, “ $1000, to endow a scholarship, to be known by the name of the Rebecca Thompson scholarship.” It was sealed in the usual manner; the signature was proved to be in her hand-writing; and the body of the instrument was also proved to be in the hand-writing of Mr. Kendrick, then the secretary of the Baptist Education Society, and who is since deceased. The respondents also gave in evidence, the declarations of the testatrix, that Mr. Kendrick had been there, and she had given a bond, payable at her death, to endow a scholarship in the Hamilton institution. The due execution of the bond, the objects for which it was given, and the consideration—if any—upon which the promise must rest, admit of no dispute. There was "no evidence, however, that it had ever before been presented to the executors, as a claim against the estate, or any proceedings instituted, or judgment rendered for its recovery.
The common law distinguishes contracts into agreements by specialty, and agreements by parol. If merely written, and not under seal, they are by parol; and before they can be enforced, a consideration must be proved. The solemnity, and deliberation, observed in the execution of a specialty, gave the transaction under that code, an importance, and a character which was withheld from a simple contract. For, between the two, there was this manifest difference; in a contract by parol, a consideration must appear, to give it vitality ; while, in a contract under seal, no consideration need appear, to make it obligatory. The geal affixed to the instrument, was it-gelf evidence of a sufficient consideration. It was a good defense to an action upon a specialty^ that the consideration was illegal, or that it was obtained by fraud ; but a mere failure, or a want of consideration, formed no defense. (2 Wilson, 347. 2 John. 177. Dorian v. Sammis, reported in a note to this case. 20 Id. 130.) The revised statutes have modified this rule of the old law. The dig[312] nity of a seal has been greatly impaired, and the distinction between contracts under seal, and contracts by parol, in its most essential aspect, has been taken away. “ In every action upon a sealed instrument, and when a set-off is founded upon a sealed instrument, the seal thereof shall only be presumptive evidence of a sufficient consideration, which may be rebutted in the same manner, and to the same extent, as if such instrument was not sealed.” (2 R. S. 328, § 97, 2d ed.) In Case v. Boughton, (11 Wend. 107,) one of the questions-of law was,' whether the failure of consideration could be pleaded to an action, brought upon a sealed instrument; Chief Justice Savage delivered an opinion ’in the affirmative, declaring that in this respect, there is now no distinction between an instrument with a seal, or without one. Such was also the judgment of the court in McCurete v. Stevens, (13 Wend. 527 ;) in Russel v. Rogers, (15 Id. 351;) in Mann v. Eckford’s Executors, (15 Id. 502;) and in Tallmadge v. Wallis, (25 Id. 107.) In the case of Mann v. Eckford’s Executors, (15 Id. 519,) Mr. Justice Bronson noticed the distinction to be taken in the application of the rule laid down in the statute, to sealed contracts made anterior to the time it took effect, and those made since. “So far,” he says, “ as this statute goes only to the remedy of the contracting parties, there can be no very great evil in applying it to sealed obligations, executed prior to the revision. But in making the application, care must be taken that we do not go beyond the form of the remedy, and interfere with the obligation of the contract. It is a familiar principle in jurisprudence, that a statute shall not have a retrospective effect, so as to destroy a vested right; and this principle of natural justice, so far as relates to the obligation of contracts, is recognized and enforced, by the constitution of the United States. This statute must, I think, receive a more restricted construction, when applied to antecedent agreements under seal, than it will require in relation to contracts entered into since the act was passed.” The bond to pay the sum of $1000 to the respondents, was made since the passage of the act, and must, therefore, be subject to its provisions, as well in respect to the evi[313] dence and the form of the remedy, as to the obligation of the contract. The consideration is open to inquiry and examination, to the same extent as if it was a contract by parol. And if that essential element is wanting, the power of the respondents to enforce it must fail.
The rule in regard to the sufficiency of the consideration, is thus stated by Chitty, in his work on contracts, (5th Am. ed. p. 29.) “ It may arise either—1st. By reason of a benefit resulting to the party promising, or at his request to a third person, by the act of the promisee. 2d. On occasion of the latter sustaining any loss or inconvenience, or subjecting himself to any charge or obligation, at the instance of the person mating the promise, although such person obtain no advantage therefrom.” If the contract or promise in question is examined by the light of this rule, it will be difficult to find any consideration upon which it can stand. The instrument recites, that the respondent has assumed the charitable education of certain young men for the gospel ministry, and has incurred, and is liable to incur, much expense thereby. But it does not assert that it has taken upon itself this burden, at the request of the obligor, or upon the faith of the undertaking contained in the bond. It also recites a resolution of the respondent, to regard any person who should place $1000 at its disposal, as havings endowed a scholarship, to be perpetuated forever. But it "will hardly be claimed that an agreement to esteem a person for any particular quality of mind; to regard him as humane, generous or benevolent; or that the promise he makes, or the act which he proposes to perform, shall be deemed an illustration of those virtues, is a sufficient consideration for a bond, or note, or any other executory obligation. Following the recitals, is the promise to pay the sum of $1000 at the decease of the testatrix, to endow the scholarship, to be known by the name of the Rebecca Thompson Scholarship. There is no promise or covenant on the part of the respondent to accept the money, and apply it to the uses of the instrument; and there is also the entire absence of all proof, that any expense had been incurred, or less- or inconvenience suffered by it; or that any act had been done [314] upon the faith of, or in consequence of the promise contained in the bond, beneficial to the obligor, or to any other person. In the case of The First Religious Society of Whitestown v. Stone, (7 John. 112,) the object was to raise a salary for the support of the Rev. Samuel Snowden, and the written promise was to pay annually to the plaintiffs the sum named, so long as Mr. Snowden administered the gospel in the society. The promise was held good, because it was made upon the consideration, that Mr. Snowden should administer the gospel, in the manner, and at the place indicated, which the proof showed had been done. McAuley v. Billenger, (20 John. 89,) was an action of assumpsit upon a subscription paper, to pay $25 to the defendants in error, who were h committee appointed to receive subscriptions to repair, and to contract for the repairs, of a church. The court held the contract entered into by the defendants in error, to repair, and the repairs themselves, which were proved to have been already commenced, a good consideration for the promise. These are cases where the promisee subjects himself to some charge or obligation, at the instance of the party making the promise. The promise of the testatrix, is to pay $1000, to endow a scholarship, to be known by a particular name, and there is nothing in the instrument, or in the proof, to indicate that any act had been, or was to be done, by the promisee, or obligee, until the money was paid, and then it was to be devoted to the uses indicated. Stewart v. The Trustees of Hamilton College, (2 Denio, 403,) was an action upon a subscription paper, by which the plaintiff in error, and others, severally promised to pay to the defendants in error, the sums set opposite their several names, upon condition, 1st. That the money should be invested as a productive fund, and the interest applied to the payment of the salaries of the officers of the institution. And, 2d. That the aggregate contributions, or the subscriptions of responsible persons, should, by a given day, amount to $50,000. It was objected, that the promise was a nudum pactum ; there being no consideration to support it. The judgment of the supreme court was against this objection; and it is worthy of observation, that Chief Justice Nelson, who de[315] livered the opinion, (see 2 Denio, 409,) states the substance of the contract thus: “ Stewart agrees, if the trustees will procure subscriptions to the amount of $50,000, including his own, and invest the same for the benefit of the institution, he will pay the $800. The trustees consent, and perform the condition; and the labor and expense of procuring the subscriptions, and investing the fund, constituted loss or damage to the trustees, and thus brought the case within the definition of a good consideration.” If the contract had been of the form into which the chief justice translates it, his legal deduction could not be gainsaid. The court of errors did not, however, see it in the light which he did; for the judgment was reversed, upon the ground that it did not appear from the paper, or the proofs, that the trustees were to be at the labor and expense of procuring the subscriptions referred to by the chief justice, as constituting the loss or damage, within the definition of a good consideration. The rule laid down in Phillips' Limerick Academy v. Davis, (11 Mass. Rep. 113,) is there quoted with approbation. It is this: ■ “ That voluntary agreements and promises, however reasonable the expectation from them of gifts, or disbursements, even to public uses, when made without consideration, are not to be enforced as contracts.” These authorities are—in my judgment— h decisive of the question, and the bond must be regarded as a promise to make a gift of a sum of money, at a future time, without any consideration to support it. After the very able and elaborate investigations which the law of gifts—both causa mortis, and inter vivos—has recently undergone in this court and the court of appeals, in the case of Harris v. Clark.