Feeser v. Feeser

Boyd, J., delivered the opinion of the Court.. The declaration filed in this case by the appellee against the appellant contains six counts. The defendant filed a demurrer to the whole declaration, and n;ot to each count, which was overruled and, having refused to plead, judgment by default was entered against him, which was subsequently extended for the amount of plaintiff’s claim.. Although alleged technical errors in the narr. are suggested in the briefs, an agreement of the attorneys' was filed at the argument showing that it was the desire of both parties to have us determine ⁷²⁴ whether the instrument sued on is a valid obligation, binding the estate of defendant’s decedent, and, as it is set out in full in one of the counts, we will pass on that question, without considering the technical defects alleged to exist.

The instrument which was executed by William J. Feeser, under seal, is as follows : “ $204.68. Due David H. Feeser the sum of two hundred and four dollars and sixty-eight cents, with interest from date, and said sum of money and interest is not to be paid during my life-time, but to be paid by my executor, out of my estate within one year after my death, and said sum of money is due and owing by my said son, Ezra D. Feeser, to the said David H. Feeser. I bind my executor to pay the same out of my estate as aforesaid, and then to be deducted of the distributive share coming to my said son, Ezra D. Feeser, out of my estate. Witness my hand and seal this 24th day of August, 1887.” It was said in Carey v. Dennis, 13 Md. 17 , “ that where an instrument does not operate inter vivos, but is made to depend for its whole operation upon the event of the death of the maker to consummate it, then it can only take effect as testamentary.” In that case the bonds sued on were in such form as would ordinarily bind the maker, but they were given by a father to a third party with directions “to take care of them, and deliver them to his sons in case he died without a will,” and they were not delivered to them in the life-time of the father.

Our predecessors held that delivery in the life-time of the maker was essential to the validity, as debts, and they were in the nature of testamentary papers. But in the case before us no such difficulty arises, and, as was said in Cover v. Stem, 67 Md. 449 , the question is whether this instrument is “ in its nature a bill obligatory, binding and conclusive upon the maker, or whether it be a mere posthumous disposition ” of so much money to be paid by the executor. It is clear that this is a very different instrument from the one under consideration in the last-mentioned case, which was under seal but simply read, “At my death, my estate or my executor pay to July Ann Cover the sum of three thousand dollars.” This ⁷²⁵ instrument begins “Due David H. Feeser the sum of two hundred and four dollars and sixty-eight cents, with interest from date.” “ The word ‘ due ’ has a variety of meanings, depending on the connection in which it is used. It has been ■defined generally to be that which is owed, that which custom, statute or law requires to be paid.” 10 Ency. of Law (2nd ed.), 277.

In Burton v. State, 3 Gill, 13 , a due bill was regarded as equivalent to a “ written acknowledgment of an indebtedness to a certain extent.” In Wilderman v. Rogers, 66 Md. 127 , a due bill was held to be within the statute authorizing a married woman to be sued “ on any note, bill of exchange, single bill, bond, contract or agreement, which she may have executed jointly with her husband.” The Court said that while it ‘ ‘ may not be