Miller v. Western College

Mr. Justice Wright delivered the opinion of the Court. On the 9th day of December, 1887, Mary Beatty, then residing at Dover, 111., executed and delivered to the appellee the following instrument: $7,000.00. • Dover, III., December 9, 1887. In consideration of a desire to aid the cause of Christian education, and the privilege of sending one student four years free of tuition, I promise to pay to the order of the treasurer of Western College, of Toledo, Iowa, for the erection of the Ladies’ Boarding Hall of said college, on or before the first day of December, 1910, the sum of seven thousand dollars, without interest. Provided, that in the event of my death before the maturity of this note, it shall become then due. P. O., Dover; county, Bureau; State, Illinois. Mart Beattt. Witness, H. H. Maynard, W. M. Beardshear. On the 7th day of December, 1893, Mary Beatty died leaving a will, and on January 5,1894, letters testamentary issued to the appellants. The above instrument was filed in the County Court for probate against the estate of the testatrix, and from there removed by appeal to the Circuit Court, which gave judgment against appellants for $6,361, and from that judgment appellants prosecute their appeal to this court, and seek to reverse the same on three principal grounds : First, the instrument, as is insisted by them, upon which the claim is based, is testamentary in its character, and therefore void. Second, it is not supported by a sufficient consideration; and lastly, if the instrument is valid, the defense of set-off, interposed on the trial, should have prevailed. If it shall be determined the instrument above quoted contains the elements of a promissory note, it can not then be justly said to be of a testamentary nature. In Dorsey v. Wolff, 142 Ill. 593, citing numerous authorities, it was said: u Various definitions have been given of a promissory note. In general terms, it may be defined to be a written promise of one person to pay to another person therein named, or order, a fixed sum of money at all events, and at a time specified therein, or at a time which must certainly arrive.” The instrument here presented is payable on the 1st day of December, 1910, with proviso that in the event of the death of the maker before the maturity of the note, it shall then become due. Both events on the happening of which the note was to become due must certainly arrive. In Shaw et al. v. Camp, 61 Ill. App. 62, the note involved was, in this respect, much like the one before us. The Appellate Court of the Third District held it a valid note. It has several times been decided by the Supreme Court, that a deed delivered, and not to take effect until after the death of the grantor, was a valid deed. (Harshbarger v. Carroll, 163 Ill. 636, and cases cited.) Ho reason can be perceived why the instrument here does not fall strictly within the principles of the decisions to which reference has been made, and it follows, therefore, it is not of a testamentary nature. It is alleged by counsel for appellants, as a second reason against the validity of the note, that it is not supported by a sufficient consideration. From the evidence it can scarcely be doubted, after the note was delivered, and upon the faith of its promise, the ladies’ boarding hall mentioned in the contract was built by appellee, and named, in honor of the donor, the Mary Beatty Hail. In Richelieu Hotel Co. v. International Mil. Encampment Co., 140 Ill. 248, citing Hudson v. Green Hill Seminary, 113 Ill. 618, it was said: “ The real consideration upon which the plaintiff is entitled to recover in said case, is, that it has expended money, furnished materials, or bestowed labor, upon the faith of the promise in writing, and not any special benefit derived, or expected to be derived by the promisor from the corporation.” Applying this doctrine to the facts before us, it is clearly to be seen the note is well supported by a sufficient consideration. It now remains to be determined if appellants’ defense of set-off should have prevailed to a greater extent than it did. It appears from the evidence after the deceased had executed and delivered the note, she was induced by persons representing the appellee, to advance to the appellee certain sums of money, from time to time, which were evidenced by three separate certificates, one for. $3,500, dated Hovember 16, 1888; one for $700, dated April 4, 1889, and one for $2,500, dated August 6, 1889, and delivered to and accepted by the deceased, and with indorsements thereon. Said certificates with indorsements are as follows : Certificate. In consideration of the agreement on the part of Western College of Toledo, Iowa, that it will keep up and maintain its college and increase its facilities for a Christian education; and in further consideration of the payment to Mrs. Mary Beatty of one hundred eighty-seven and 50-100 dollars each and every year of her natural life, the first payment to be made one year from the date hereof, the said Mrs. Mary Beatty has deposited with the said Western College . the sum of twenty-five hundred dollars, for the benefit of, and to become and be the property of said Western College, and to be used as the board of trustees, or executive committee thereof may direct. Witness my hand this 6th day of August, 1889. $187.50. L. H. Burkin, Treasurer, And on the back thereof appears the following, to wit: “ We hereby guarantee the payment of the within annuity. L. H. Bufkin, M. S. Drury. Aug. 6, 1890, paid one year’s annuity. Oct. 9, 1891, “ <£ ££ “ ” Certificate. In consideration of the agreement on the part of Western College of Toledo, Iowa, that it will keep up and maintain its college, and increase its facilities for a Christian education; and in further consideration of the payment to Mrs. Mary Beatty of fifty-two and 50-100 dollars each and every year of .her natural life, the first payment to be made one year from the date hereof; the said Mrs. Mary Beatty has deposited with the said Western College the sum of seven hundred dollars, for the benefit of, and to become and be the property of said Western College, and to be used as the board of trustees or executive committee thereof may direct. Witness my hand this 4th day of April, 1889. $52.50. L. H. Bufkin, Treasurer. And on the back thereof appears as follows: “ We guarantee the payment of the within annuity. L. H. Bufkin, M. S. Drury. April 4, 1890, paid within year’s annuity. April 4, 1891, paid on the within year’s annuity. Mary Beatty. April 15, 1892, paid one year’s annuity.” Certificate; In consideration of the agreement on the part of Western College of Toledo, Iowa, that it will keep up and maintain its college and increase its facilities for a Christian education; and in further consideration of the payment to Mrs. Mary Beatty of two hundred sixty-two and 50-100 dollars each and every year of her natural life, the first payment to be made one year from the date hereof; the said Mrs. Mary Beatty has deposited with the said Western College the sum of thirty-five hundred dollars, for the benefit of, and to become and be the property of said Western College, and to be used as the board of trustees or executive committee thereof may direct. Witness my hand this 16th day of November, 1888. $3,500. L. H. Bimmf, Treasurer. And on the back thereof appears the following, to wit: “We hereby guarantee the payment of the annuity to Mrs. Mary Beatty according to the terms of the within certificate. L. H. Bufkin, M. S. Drury, W. M. Beardshear. Deceived on the within $262.50, December 5,1889. Mary Beatty. Deceived on the within $262.50, December 5, 1890. Mary Beatty. Paid on the within $262.50, by note dated November 16, 1891.” Counsel for appellants contend the $6,700 represented by these certificates is an unexecuted gift by the deceased to the appellee, the title thereto remaining in the donor at the time of her death, and especially so, for the additional reason that default had been made in the payment of the interest or annuities accruing thereon, and therefore the executors were entitled to set off the principal as well as the unpaid interest, or annuities. We can not perceive any force to this contention. The certificates expressly provide the money represented by them respectively, is for the benefit and to be the property of the appellee, and to be used as the board of trustees or executive committee might direct. The deceased accepted the certificates and thereby bound herself by the terms thereof, and is given By them only a right of action against the appellee for the annuities, in case of nonpayment. The title to the money is effectually vested in the college, and to be used by it, thereby placing it beyond her power to reclaim. The numerous authorities cited by appellants’ counsel have no application to the question as we understand it. After the allowance of interest to the appellee on the $7,000 note from December 7, 1893, the time it fell due, it - will be found appellants have received credit for all unpaid annuities, including the note and interest that was given for arrears, and therefore the amount of the judgment is not excessive. Complaint is further made by counsel for appellants of the instructions to the jury by the trial court, and of instructions refused. We have examined the instructions, given and refused, of which complaint is made, and find the action of the court in those respects is in harmony with our own views of the same question. Finding no error in the record and proceedings of the Circuit Court, its judgment will be affirmed. Dibell, J., took no part.