Rice's Adm'r v. Rice

SOMEBYILLE, J. A promissory note may be defined to be, a written promise to pay money ; and while the word “promise ” need not be used, words of equivalent import are required, the fair construction of which would be tantamount to a promise, express or implied—1 Parsons B. & N. 14, 25; Fleming v. Burge, 6 Ala. 373. The instrument sued on in this case is, in the body of it, called a “note.” It purports to be a gift of five hundred dollars, payable “ after the death ” of the maker. Words are used [218] seeking to prohibit the transfer or assignment of it to any third person. It is not, strictly, a promissory note; for.there is no promise to pay, or words of similar force and meaning. Nor do we clearly see how it can be construed to be testamentary in its character. A will has been defined to be, “an instrument by which a person makes a disposition of his property, to take effect after his decease, and which is in its own nature ambulatory and revocable during his life.” 1 Jarm. on Wills, 1. Where, however, a paper is, on its face, imperfect and equivocal, the presumption is always against its operating as testamentary, unless it is made clearly to appear that it was executed animo íestandi, or being intended by the maker to operate as a posthumous dispositon of his estate. 1 Redf. Law Wills, 170-2. But courts have inclined to solve many doubtful cases, by giving such instruments a testamentary effect, where it was necessary in order to prevent the entire defeat of their legal operation ; and such has been the current of our own decisions.—Kinnebrew v. Kinnebrew, 35 Ala. 628; Gilham v. Mustin, 42 Ala. 365. The controlling question, in such cases, seems to be, whether the maker intended that any interest or estate whatever should vest before his death, and upon the execution of the paper.—Gilham v. Mustin, 42 Ala. 365; Wall v. Wall, 30 Miss. (1 Geo.) 91. The intention of the maker is the key of all interpretation, however irregular the instrument may be in its form, or however inartificial in its expression. But this intention may be ascertained, not only from the writing itself, but from the light of attendant facts and circumstances. Hall v. Burkham, 59 Ala. 349; McGuire v. Bk. Mobile, 42 Ala. 589. The instrument sued on was delivered by the maker, presumptively, during his life-time, thus vesting an interest in the appellee. If has no attesting witnesses, and can not operate as a will, thus widely differing from the one decided to be a will in Kinnebrew v. Kinnebrew, 35 Ala. 628. It is correct, as a general rule, that a promissory note, in ordinary form, imports, prima facie, a legal consideration ; yet this presumption can not be held to prevail, where the instrument, on its face, purports to be a gift in the nature of a legacy, which is the character of the one under consideration. It is obviously a nudum pactum, in the absence of any extrinsic evidence of a valuable consideration, and is no more a ground of action than a voluntary promise to deliver a chattel as a mere gift.—Copp v. Sawyer, 6 N. H. 386; Pearson v. Pearson, 7 Johns. Rep. 26. The court below erred in its construction of this instrument ; and the judgment must, for this reason, be reversed, and the cause remanded.