[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
The will of Theron B. Worth was given in evidence before the referee, and it contained various devises and bequests which I have not set forth specifically; but in the view which I take of the case, I deem them to be entirely immaterial.
The transfer of the note from the testator to the plaintiff was not in the nature of a gift causa mortis; for independent of its being founded upon some consideration, the testator, when he executed it, was not the subject of any physical malady which would be likely to end in his death, or from which he had any apprehension that his death would ensue. Neither was it an absolute gift, inter vivos, because there was some
consideration for it, and because also the delivery of it was a conditional one. It was subject to revocation by the maker at any time during his life; and it was also subject to the further condition, that the plaintiff should not open the envelope in which it was delivered to her until after his death. It was not intended by the maker as a testamentary bequest; for long after its original delivery to the plaintiff, and after he had subsequently had it in his possession, and returned it to her, in the will which he made, he bequeathed to her the use (while she remained single) of $1,000, without any intimation that it was in lieu of the note; and without any reference to it, and without any attempt on his part then, or thereafter, to reclaim it from her possession. It was, therefore, manifestly his intent, that the note should be hers as well as the bequest.
A deed executed and delivered by a grantor, which is to take effect so as to pass the title at his death, is not in any sense a testamentary disposition of the property described in it; nor is a note, executed and delivered, and accepted, in the lifetime of the maker, but made payable at, or after his death, such a disposition of it; but in both cases, the instrument is absolute, and passes the right to the land, in the one case, and to the money in the other, to vest in possession or action at the death of the grantor or maker. And, if the note in question was delivered and accepted, the transaction is no more testamentary, than in the cases of the deed and note referred to; and the only difference is, that in those, the delivery passed the right without power of revocation and without condition; while in this, the power of revocation and
the condition continued till his death. I think there are but two questions in the case.
The first is, whether the delivery, in the manner and with the conditions specified, and under all the circumstances of the case, was such, that if the note was founded upon a sufficient valuable consideration, it would on his death constitute a valid and legal claim against his estate; and if so, then, second,
was there such a consideration expressed, and proved by parol, as would make the note a valid demand, if the delivery had been absolute and unconditional.
I think the circumstances show that the maker of the note delivered it to her with the intention that it should be hers absolutely, unless he should thereafter apply to her for its redelivery, or unless she should open the envelope during his life. Or, in other words, that he intended to pass the title in it to her, subject to being devested (as she had the possession) by either of those acts; and that, if neither of them were performed, the title to the note should remain in her. It was not delivered to her as an escrow, for such a delivery must be made to some third person; and, as a general rule, an escrow is made to await some affirmative action on the part of the other party, before he is entitled to the absolute delivery of the instrument, and not the affirmative action of the party who delivers it as an escrow. The delivery, therefore, was complete, provided there was an acceptance by her.
There is no doubt, that a delivery of a deed or note, or other obligation, to one person in favor of, and for the benefit of another, constitutes a valid and binding delivery as against the party who delivers it, whether the party in whose favor it is delivered is owner of it or not; and for the purpose of protecting his interests, the law holds the party receiving the delivery as his trustee, and makes his acceptance of it the acceptance of the beneficiary. And this, too, whether the person receiving the delivery knows the contents of the instrument or not, and whether he does anything more than merely receive it or not. And yet, where the person, in whose favor the instrument is executed will be injured by the acceptance
of it, the delivery to such third person does not bind him,
unless he authorized such acceptance or adopts it by some subsequent act.
The same is the case with an instrument executed and delivered personally to an idiot or lunatic. If beneficial to him, the party executing it is bound by it, and the idiot or lunatic is entitled to its benefits; but if against his interests, he is not bound, although he has received the delivery. In these cases, the delivery is held good, though the grantee or obligee really had nothing to do with the transaction, in order to carry out the intent of the party who executed the instrument, and for the benefit of the party for whose benefit it was delivered, and constitutes an acceptance on his part, when for his interest to do so, and not when otherwise.
Upon what principle is it, then, that a direct delivery of an obligation to the obligee himself, and a reception thereof by him, does not constitute an acceptance, if the contents of the instrument delivered are not at the time known to him?
And why may not a party deliver an instrument, the contents of which are not known to the party receiving it, with the like effect as if it were, without his knowledge, delivered for his benefit to some third person for him?
Or, suppose that on the 30th day of January, 1864, Theron B. Worth had been indebted to the plaintiff in the exact sum of $10,000; and had on that day delivered the note in question precisely as he did; and it had remained in the possession of the plaintiff as it did, till his death, is it possible that the plaintiff could not maintain an action on the note, and that she would have been compelled to count on the original indebtedness? To my mind, the delivery and acceptance were more complete than in any of the other cases to which I have alluded. The delivery was to the party to be benefited; and from what appears it is manifest, that when she received it, she considered it to be something which was of value to her. He had told her that he would pay her well for the services performed for him, and had offered to buy her a house and lot in compensation; and when she received
it, on the day when he left her to return to his home, she could not doubt that it contained the compensation, or the evidence of it, which he had promised to make to her; and no doubt she gladly accepted it as such, in the full belief that it contained a generous compensation.
As nothing happened subsequently to the delivery which would invalidate the note, the next question is, were the conditions such as to render it therefor void per se.
By the terms of the delivery, it was intended to be valid, if neither of two affirmative acts were afterward done.
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
The will of Theron B. Worth was given in evidence before the referee, and it contained various devises and bequests which I have not set forth specifically; but in the view which I take of the case, I deem them to be entirely immaterial.
The transfer of the note from the testator to the plaintiff was not in the nature of a gift causa mortis; for independent of its being founded upon some consideration, the testator, when he executed it, was not the subject of any physical malady which would be likely to end in his death, or from which he had any apprehension that his death would ensue. Neither was it an absolute gift, inter vivos, because there was some
consideration for it, and because also the delivery of it was a conditional one. It was subject to revocation by the maker at any time during his life; and it was also subject to the further condition, that the plaintiff should not open the envelope in which it was delivered to her until after his death. It was not intended by the maker as a testamentary bequest; for long after its original delivery to the plaintiff, and after he had subsequently had it in his possession, and returned it to her, in the will which he made, he bequeathed to her the use (while she remained single) of $1,000, without any intimation that it was in lieu of the note; and without any reference to it, and without any attempt on his part then, or thereafter, to reclaim it from her possession. It was, therefore, manifestly his intent, that the note should be hers as well as the bequest.
A deed executed and delivered by a grantor, which is to take effect so as to pass the title at his death, is not in any sense a testamentary disposition of the property described in it; nor is a note, executed and delivered, and accepted, in the lifetime of the maker, but made payable at, or after his death, such a disposition of it; but in both cases, the instrument is absolute, and passes the right to the land, in the one case, and to the money in the other, to vest in possession or action at the death of the grantor or maker. And, if the note in question was delivered and accepted, the transaction is no more testamentary, than in the cases of the deed and note referred to; and the only difference is, that in those, the delivery passed the right without power of revocation and without condition; while in this, the power of revocation and
the condition continued till his death. I think there are but two questions in the case.
The first is, whether the delivery, in the manner and with the conditions specified, and under all the circumstances of the case, was such, that if the note was founded upon a sufficient valuable consideration, it would on his death constitute a valid and legal claim against his estate; and if so, then, second,
was there such a consideration expressed, and proved by parol, as would make the note a valid demand, if the delivery had been absolute and unconditional.
I think the circumstances show that the maker of the note delivered it to her with the intention that it should be hers absolutely, unless he should thereafter apply to her for its redelivery, or unless she should open the envelope during his life. Or, in other words, that he intended to pass the title in it to her, subject to being devested (as she had the possession) by either of those acts; and that, if neither of them were performed, the title to the note should remain in her. It was not delivered to her as an escrow, for such a delivery must be made to some third person; and, as a general rule, an escrow is made to await some affirmative action on the part of the other party, before he is entitled to the absolute delivery of the instrument, and not the affirmative action of the party who delivers it as an escrow. The delivery, therefore, was complete, provided there was an acceptance by her.
There is no doubt, that a delivery of a deed or note, or other obligation, to one person in favor of, and for the benefit of another, constitutes a valid and binding delivery as against the party who delivers it, whether the party in whose favor it is delivered is owner of it or not; and for the purpose of protecting his interests, the law holds the party receiving the delivery as his trustee, and makes his acceptance of it the acceptance of the beneficiary. And this, too, whether the person receiving the delivery knows the contents of the instrument or not, and whether he does anything more than merely receive it or not. And yet, where the person, in whose favor the instrument is executed will be injured by the acceptance
of it, the delivery to such third person does not bind him,
unless he authorized such acceptance or adopts it by some subsequent act.
The same is the case with an instrument executed and delivered personally to an idiot or lunatic. If beneficial to him, the party executing it is bound by it, and the idiot or lunatic is entitled to its benefits; but if against his interests, he is not bound, although he has received the delivery. In these cases, the delivery is held good, though the grantee or obligee really had nothing to do with the transaction, in order to carry out the intent of the party who executed the instrument, and for the benefit of the party for whose benefit it was delivered, and constitutes an acceptance on his part, when for his interest to do so, and not when otherwise.
Upon what principle is it, then, that a direct delivery of an obligation to the obligee himself, and a reception thereof by him, does not constitute an acceptance, if the contents of the instrument delivered are not at the time known to him?
And why may not a party deliver an instrument, the contents of which are not known to the party receiving it, with the like effect as if it were, without his knowledge, delivered for his benefit to some third person for him?
Or, suppose that on the 30th day of January, 1864, Theron B. Worth had been indebted to the plaintiff in the exact sum of $10,000; and had on that day delivered the note in question precisely as he did; and it had remained in the possession of the plaintiff as it did, till his death, is it possible that the plaintiff could not maintain an action on the note, and that she would have been compelled to count on the original indebtedness? To my mind, the delivery and acceptance were more complete than in any of the other cases to which I have alluded. The delivery was to the party to be benefited; and from what appears it is manifest, that when she received it, she considered it to be something which was of value to her. He had told her that he would pay her well for the services performed for him, and had offered to buy her a house and lot in compensation; and when she received
it, on the day when he left her to return to his home, she could not doubt that it contained the compensation, or the evidence of it, which he had promised to make to her; and no doubt she gladly accepted it as such, in the full belief that it contained a generous compensation.
As nothing happened subsequently to the delivery which would invalidate the note, the next question is, were the conditions such as to render it therefor void per se.
By the terms of the delivery, it was intended to be valid, if neither of two affirmative acts were afterward done. It is clear that neither of these acts were performed, and in my judgment the delivery and acceptance were sufficient, and the note, as such, remained valid in the hands of the plaintiff, provided it was executed for a good consideration.
To support a note, or other contract, it is not necessary that the consideration therefor, shall be equal in pecuniary value to the amount of the obligation incurred by the note or contract. It is enough, generally, that no part of the consideration, upon which it was founded, was wanting at the time the obligation was incurred, and that no part of it has subsequently failed. And, as to all considerations founded upon specific articles of property, parted with by the obligee to the obligor, and which have not a specific, fixed, and certain pecuniary value, the court, upon the question of consideration, will not inquire into their actual pecuniary value, but will leave the parties to such estimates thereof as they have formed in making their contract.
If one voluntarily and fairly purchases either real or personal property of another, at a fixed price, and executes his note for the payment of the purchase money, he will not be allowed, when sued thereon, to prove, for the purpose of defeating, or reducing the amount of the recovery on the note, that the property in fact was not worth one-half, or one-quarter, or even one-tenth, of the amount at which he purchased it.
If one contracts with another, that he shall walk from Albany to Niagara Falls, or for any other service to be performed
by him, and agrees to pay him therefor the sum of $1,000, if the service is performed, he will not be allowed to interpose as a defence, if sued upon the contract, either that the service was not pecuniarily worth that sum to the party for whom it was performed, or that he received no actual benefit from such performance by the other party.
So, too, while the payment of a less amount, in money, for a larger debt which is due, and the taking a receipt therefor from the creditor, expressing that it is in full payment, does not amount to an accord and satisfaction, yet the acceptance of an article, or articles of property, and receipting them as in full, does amount to an accord and satisfaction, though their actual value is far less than the debt upon which they are received. These principles are elementary and familiar.
The note contains the declaration of the testator, that his agreement to pay her the $10,000 was in consideration of services rendered to him. He was very sick; but precisely how sick he was, or how dangerous his disease was, we do not know. We do know that he received a great deal of care and attention; and that she bestowed it upon him; and that, while she was bestowing such care and attention upon him, he frequently said he would pay her well for her services. It may well be that his life was considered in danger, and that he desired to stimulate her efforts in his behalf by means of pecuniary considerations, even beyond those which, as his sister, he could expect from her. And he may well, at that time, have estimated her services and attention as worth more to him than $10,000. "For all that a man hath, will he give for his life." At all events, it is clear that she was unremitting in her attentions to him, and he recovered. And if the note speaks truly, he then considered those attentions worth $10,000 to him. It is true, that in the manner of delivering it to her, he reserved the locus penitentiæ, in case he should afterward consider her services of less value to him; but he lived more than three years after that; and if his acts during that time are evidence of his opinion, he continued
to believe, to the end of his life, that in giving the note for that consideration he had not committed a mistake. He chose, for these services, to execute the note. We have no pecuniary standard by which we can measure, or weigh their value to him. He estimated them then, and continued to do so, at $10,000, and those who stand in his shoes have no right to repudiate the contract which he made.
I think the note was executed for a valuable consideration, and that it is valid against his executors.
The order of the General Term should be affirmed, and final judgment should be ordered for the plaintiff for the full amount specified in the note, with interest thereon, from the 15th day of October, 1867 (when the claim of the plaintiff was made upon the defendant), together with her costs of the action to be paid out of the estate of the deceased.