Graves v. Graves
| Decision Date | 26 October 1846 |
| Citation | 46 Ky. 213 |
| Parties | Graves <I>vs</I> Graves. |
| Court | Kentucky Court of Appeals |
THIS was an action by petition and summons, on a note exected by J. Graves to N. Graves, for $318. The defendant pleaded that he executed the note "as a promise to give the plaintiff, who was his brother, a mere gratuity, and without any good or valuable consideration whatever." To which the plaintiff replied that the note was not given to him by defendant as a mere gratuity, but because he was the brother of the defendant, and because the defendant was indebted to him, and was given for a good and valuable consideration, concluding to the country.
Upon the trial of the issue thus made between the parties, it was proved, that after the death of John Graves their father, N. Graves, who had resided in Illinois, came to Kentucky, and contended with his brothers and sisters that they ought to give him something to make him equal to themselves in what they had received from their father's estate, not asserting, however, any enforcible claim or right, but contending that he was entitled, in justice, to be made equal. The father had made large advances to him while in Illinois, and therefore gave him much less than his other children, by his will; and Nathan asked contribution from the others, not as an enforcible right, but as a gratuity, which he thought justly due, because, as he said, he had not in fact received an equal share, &c. The brothers and sisters agreed to make him equal to themselves. And accordingly, William Graves, a brother, gave him a negro girl estimated to be worth $318; Felix Graves, a brother, executed his note to him for $318, and paid it; Allen Mays, a brother-in-law, did the same; and the note now in question was executed by the defendant on the same account. The amount for which the notes were given, was fixed by reference to the value of the slave given by William Graves, without any calculation to ascertain the precise deficiency in the share received by Nathan from his father, and as the bill of exceptions states, without any express admission, that in point of fact he had received less than they had.
Conceding, as we are inclined to do, that the fraternal relation, and the love and affection properly belonging to it, would not alone be sufficient against the plea of no consideration to sustain even a written promise, and doubting as we do, whether the additional fact, that by the will of the common father, one brother had received more of his estate than the other, would furnish a valuable consideration by which the note might be upheld, we are of opinion, that in this case the note does not merely rest upon the consideration of love and affection between brother and brother, nor upon the existence of an obligation on the part of one brother to renounce the partiality, or remedy the supposed injustice of the father, by equalising the unequal distribution which he has himself made of his own estate. If, as far as these inducements are concerned, the note now in question should be deemed purely gratuitous, and without such consideration, either good or valuable, as would make it enforcible in law there is still an additional inducement, which, as we think, suffices to give value to the consideration, and to sustain the note.
The brothers and sisters of the plaintiff, though under no legal obligation to yield to his appeal, did, from...
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