Carpenter v. Page

Devens, J. It must be held that the Superior Court has found that the note in suit was given by the defendant in payment of her husband’s debt to the plaintiffs ; that they received it as such at her request, and receipted their bill against the husband’s estate. The defendant’s contention is, that, as the debt was one due from her husband’s estate, which the wife was not bound to pay, and as, at the time, no administration had been .granted on the husband’s estate, the note given by her was without consideration. The relation in which the parties in the case at bar stood to each other establishes fully a sufficient consideration for the defendant’s promise. While she was under no legal liability to pay her husband’s debt, she was entitled to administration upon his estate. Pub. Sts. c. 130, § 1. If his debt was paid by her, and she was afterwards appointed administratrix of his estate, she would be entitled in her account to an allowance for the payment of this debt, as her appointment would relate back to the husband’s decease. By giving the note in suit, she established a claim against her husband’s estate, which she could readily enforce. Again, as the plaintiffs were creditors of the husband’s estate, if administration thereon was refused or neglected to be taken out by the widow or next of kin, the plainr tiffs would be entitled thereto. By acceptance of the note as a payment of their debt, they would necessarily be deprived of this right, and a valuable privilege would have been relinquished by them, which would also afford a good consideration for the defendant’s promise. 317 The case of Nelson v. Serle, 4 M. & W. 795, relied on by the defendant, recognizes fully that, where the debt of a husband is paid by the note of his widow, who is entitled to administration on his estate, the consideration is sufficient. See also Ridout v. Bristow, 1 Cr. & J. 231. jExceptions overruled.