Cover v. Stem

Alvey, O. J., delivered the opinion of the Court. This is an action of debt brought by the appellant against the appellee as executor of David Engel, deceased, to recover the sum of three thousand dollars, alleged to be due and owing by virtue of what is desfcribed in the declaration as a writing obligatory, made and delivered by the appellee’s testator, on the 4th day of Sept., 1884. The declaration contains several counts, all founded upon the supposed writing obligatory; and which writing was filed with the declaration, and, by agreement, is incorporated in and made part of the declaration. The appellee demurred to the entire declaration, and the Court below sustained the demurrer, and gave judgment for the defendant.

It,is from that judgment that this appeal is taken. The instrument declared on is in the following form : “Md., September 4th, 1884. At my death, my estate or my executor pay to July Ann Cover the sum of three thousand dollars. Witness: David Engel, of P. [seal.] Columbus Cover.” It is contended, on the part of the appellant, that this instrument is a bill obligatory, and imports a legal obligation of the maker, the time of payment only being deferred until after his death, when his administrator or executor was directed to pay the amount.

While, on the other band, it is contended by the appellee, that the instrument has all the characteristics of a testamentary paper, and did not, in any proper sense, create a legal obligation upon the maker, such as that of a bond or single bill. ' ⁴⁵¹ What the consideration may have been to induce the maker to pass such an instrument, does not appear. But it is insisted that the seal to the instrument imports a sufficient consideration for the obligation of the maker ; and this, as a general proposition, is certainly true, as applied to bonds and deeds generally. But still the question here is, whether the instrument declared on be in its nature a bill obligatory, binding and conclusive upon the maker, or whether it be a mere posthumous disposition of three thousand dollars, part of his estate, to be paid by his executor, as any other pecuniary legacy given by the testator. An obligation is defined to be a deed in writing, whereby •one man doth bind himself to another to pay a sum of money, or do some'other thing.

Shep. Touch., tit. Obligation, p. 367. The same definition is given in Com.

Dig., tit. Obligation, (B,) and in Bacon’s Abr. tit. Obligation (Bi) It is true, no precise form of words is necessary to create a bond or obligation. Therefore, any memorandum in writing under seal, whereby a debt is acknowledged to be owing, will obligate the party to pay ; for it is said that any words which prove a man to be a debtor, if they be under seal, will charge him with the payment of the money.

Core’s Case, Dyer, 226 ; Shep. Touch., 368, 369-70, and Bac. Abr. Obligation (B,) and the examples there given of what form of words will be sufficient to create a valid obligation.

It is, however, laid down in Bac. Abr. Obligation (B,) as essentially necessary, to create a valid obligation, that words he employed to declare the intention of the party, and which must clearly denote his being bound; “because such obligation is only in the nature of a contract, or a security for the performance of a contract, which ought to be construed according to the intention of the parties.” In other words, there must be terms employed to create a debitum in presentí, though the solvendum may be in futuro, and even after the death of the ⁴⁵² obligor. It would seem to be clear, that