Hegeman v. Moon

• Decision Date: 15 March 1892
• Citation: 30 N.E. 487,131 N.Y. 462
• Parties: HEGEMAN v. MOON et al.
• Court: New York Court of Appeals Court of Appeals

131 N.Y. 462

30 N.E. 487

HEGEMAN

v.MOON et al.

Court of Appeals of New York.

March 15, 1892.

Appeal from supreme court, general term, second department.

Action by Joseph Hegeman against Christina S. Moon and Morse Burtis, as executors of Cornelia W. Hegeman, deceased. From a judgment of the general term, affirming a judgment overruling a demurrer to the complaint, defendants appeal. Affirmed.

Benjamin F. Hitchings, for appellants.

Woodward & Buckley, for respondent.

The other facts fully appear in the following statement by PECKHAM, J.:

The complaint stated, in substance, that between 1863 and 1867 the plaintiff advanced to his nephew Adrian Hegeman, for his own account and the account of his mother, Cornelia W. Hegeman, various sums, amounting in all to about $3,075, which Adrian agreed to repay. On January 1, 1869, there was due plaintiff, for principal and interest, $3,363.41, for which Adrian made and delivered to plaintiff his promissory note, payable on demand, with interest. On the 8th of February, 1871, Cornelia W. Hegeman paid plaintiff a bond of the Wabash Railroad, of the par value of $1,000, on account of above indebtedness; and plaintiff on the same day surrendered to her the note of Adrian, and extended the time for the payment of the moneys; and in consideration thereof, and of plaintiff's agreement to accept the principal of the amount due, without interest, and of other sufficient considerations, the said Cornelia W. Hegeman made and delivered to plaintiff her draft or order in writing, a copy of which is as follows: ‘§1,976.90-100. Brooklyn, February 8th, 1871. One year after my death I hereby direct my executors to pay to Joseph Hegeman, his heirs, executors, or assigns, the sum of nineteen hundred and seventy-six dollars and ninety cents, being the balance due him for cash advanced at various times by him to Adrian Hegeman, my son, and others, as per statement rendered by him this day, without interest. CORNELIA W. HEGEMAN.’ Cornelia W. Hegeman died December 3, 1888, leaving a will, which was duly admitted to probate, and letters testamentary issued thereon to defendants as executors thereof. The executors qualified, and on the 3d of December, 1889, the plaintiff presented the said draft to the executors, and demanded payment, which was refused. The plaintiff offered thereupon to refer the claim, which was also refused. The plaintiff further alleged there was due him from defendants, as executors, the sum of $1,976.90, and interest from December 3, 1889, and demanded judgment. To this complaint the defendants demurred on the ground that it did not state facts sufficient to constitute a cause of action. The special term overruled the demurrer, and the general term affirmed that judgment, and certified it was proper to obtain a decision of this court before proceeding further in the action; and therefore defendants appeal here.

PECKHAM, J., ( after stating the facts.)

The defendants object to the judgment herein, because they claim the paper set out in the complaint is of a testamentary character, and, not being executed as providedfor by the statute of wills, is for that reason void. They also object that, if not of such a character, it is a contract to answer for the debt, default, or miscarriage of another person, or is one which by its terms is not to be performed within one year, and in either event is void because it does not express a consideration.

We think none of these objections are well founded. The instrument is in its nature and substance a promissory note, payable one year after the maker's death. It has just been held in the second division of this court that a promissory note payable by its terms after the death of its maker is valid. Carnwright v. Gray, 127 N. Y. 92, 27 N. E. Rep. 835. In that case the instrument was in this form: ‘Thirty days after death I promise to pay Cornelius Carnwright fifteen hundred...