Mccowen v. Mccord

• Citation: 49 Ga.App. 358,175 S.E. 593
• Decision Date: 19 July 1934
• Docket Number: No. 23630.,23630.
• Court: United States Court of Appeals (Georgia)
• Parties: McCOWEN. v. McCORD.

49 Ga.App. 358

175 S.E. 593

McCOWEN.

v.McCORD.

No. 23630.

Court of Appeals of Georgia,

Division No. 2.

July 19, 1934.

Syllabus by the Court.

1. While ordinarily a wife may contract

as a feme sole, she cannot bind her separate estate by any assumption of the debts of her husband (Civil Code 1010, § 3007); but this inhibition does not affect the power of a widow to contract with reference to the debts of a deceased husband. Mize v. Hawkins, 54 Ga. 501 (1).

2. Every executory contract in order to be enforceable must be supported by a valuable consideration, or, in the absence of a valuable consideration, by a good consideration founded either on love and affection toward one to whom a natural duty exists (Worth v. Daniel, 1 Ga. App. 15 (2), 17, 57 S. E. 898), or by a good consideration based on a strong moral obligation supported either by some antecedent legal obligation, though unenforceable at the time, or by some present equitable duty (Davis & Co. v. Morgan, 117 Ga. 504, 506, 507, 43 S. E. 732, 61 L. R. A. 148, 97 Am. St. Rep. 171; Monroe v. Martin, 137 Ga. 262 (1), 263, 73 S. E. 341; McElven v. Sloan, 56 Ga. 208; Civil Code, §§ 4243, 4241). Accordingly, mere sentiment, love, and affection, or respect for the memory of a deceased husband, by his widow, will not support an executory promise on her part to assume the payment of an obligation due by his estate. Brazell v. Hearn, 33 Ga. App. 490 (1, 2), 127 S. E. 479. There is nothing held to the contrary to what is here stated in the Mize Case, supra, or in Walker v. Walker, 139 Ga. 547 (7, a), 77 S. E. 795, Booker v. Small & Sons, 147 Ga. 566, 94 S. E. 999, or Montgomery v. Padgett, 38 Ga. App. 389 (2), 144 S. E. 41. In those cases it was only the power of the widow to contract with reference to the debts of her deceased husband which was dealt with, and no question appears to have been presented as to whether in such a contract, as in all other executory contracts, a valid consideration is required. Those cases do not hold that the mere fact of widowhood, in the absence of benefit to the widow or detriment to the creditor, would support such a promise. In the Montgomery Case it in fact appeared that the antecedent claim, which bad been contracted by the husband, was to be "extinguished" by the giving of the note of the widow.

3. A promise by a widow to assume the payment of a debt owing by the estate of her deceased husband is supported by a valid consideration, if it was expressly or impliedly within the minds of the contracting parties that any benefit might thereby accrue to her as promisor, or any detriment might be suffered by him to whom the promise is made. Civil Code, § 4242; Tompkins v. Philips, 12 Ga. 52 (1, 2); American haw Institute's Restatement of Law of Contracts, § 90, vol. 1, p. 110; 1 Page on Contracts, p 854, § 522; 6 R. C. L. 660, § 70; 13 C. J. 316, 318, 342, 348. Thus, if a widow gives her written obligation in payment or extinguishment of a debt owing by the estate of her deceased husband, the promise may be supported by a valuable consideration either by way of a detriment to be suffered by the creditor in the relinquishment of his original claim upon the assets of the estate, or by any benefit to the widow which may thus inure to her by reason of any increased interest in the estate.

4. If, on the other hand, the promise of the widow be not made in payment or extinguishment of the debt owing by the estate, but such original obligation continues to be held by the creditor against the estate, her obligation, in order to be binding, must be supported by some valid independent consideration, in actual or legal contemplation of the contracting parties, such as may afford benefit to her or may occasion detriment to the creditor. See Golding v. McCall, 5 Ga. App. 545 (1), 549, 63 S. E. 706.

5. In the instant case, the jury, under the evidence, were authorized to find either in favor of the plaintiff or of the defendant widow upon the question as to whether her note had been given in consideration of and on condition that the creditor's claim against the husband's estate should be surrendered. While there is no evidence that the widow signed the note with any such agreement or understanding between herself personally and the creditor or the creditor's agent, there is evidence for the plaintiff by the creditor's agent that such an agreement was made between him as agent for the creditor and the administrator of the husband's estate; and, while the administrator denied that he was the agent of the defendant in such negotiations, there was evidence by the defendant herself, which she sought subsequently to modify and explain, which authorized the jury to find that the administrator was acting also as her personal and individual agent.

6. Exception is taken to the exclusion of testimony by the agent of the creditor to the effect that the alleged agent of the defendant had told the witness that the defendant had agreed to give the note if the witness would withdraw the claim against the husband's estate; the contention being that this testimony showed an admission by the defendant through her authorized agent, and explained the conduct of the plaintiff. While the jury were authorized to find that the alleged agent of the defendant was in fact her agent, this ruling did not prejudice the plaintiff, since substantially the same evidence appears to have been admitted without objection, the same witness having testified that the alleged agent had proposed to the witness that the note would be given, provided that, the witness withdrew the claim against the estate.

7. For the reasons stated in the opinion, the exceptions to the charge of the court show no reversible error.

Error from City Court of Macon; C. H. Hall, Judge.

Suit by L. M McCowen, executrix, against R. C. J. McCord. Judgment for defendant, plaintiff's motion for a new trial was overruled, and plaintiff brings error.

Affirmed.

This is a suit by an executrix against a widow for the principal sum of $3,434 upon a promissory note, by which she obligated herself to pay a debt owing by her deceased husband to the plaintiff's testatrix. A verdict and judgment were rendered in favor of the defendant. It is undisputed that the note was given by the widow for a debt which had been contracted by the husband. There was no testimony to indicate that any agreement existed between the creditor of the deceased husband and the widow herself that her note was to be taken in extinguishment of the creditor's claim against the husband's estate. On the contrary, the evidence indicates that the defendant herself had no conversation at all with the creditor or any one representing the creditor with reference to the transaction. The defendant testified that "he [the administrator] just told me when I inherited half of my father's estate, the nice thing to do was pay it when I could, and I just thought that was the thing to do, and I just signed it." It appears, however, from the evidence of the creditor's agent that the note was delivered to him by the administrator of the husband's estate, and that, "prior to his actually giving me the note, he had stated to me he would give it to me, provided I would withdraw the claim." The evidence shows that, upon the delivery of the widow's note by the administrator to the agent of the creditor, the creditor's agent then actually withdrew and destroyed the claim against the estate, with the result that the creditor did not share with other creditors in the distribution made from the assets of the insolvent estate.

Upon the question as to whether the administrator was the agent of the widow in the negotiations with the agent of the creditor, the administrator himself testified in effect that he was not her agent. But there was testimony by the widow, which, despite her subsequent modification and explanation, would have authorized a finding that the administrator, who conducted the negotiations culminating in his delivery of the note to the agent of the creditor, was her authorized agent during the summer of 1924 while she was out of the state. These portions of her evidence are as follows: "I was in Asheville in the summer of 1924. My father was ill and I was there with him, and I left everything with [the administrator] to wind up of Henry's estate, because I could not be down there, and went back up there with him. My father was up in Asheville ill...