I think the subscription given to the American University in this case should be considered as a contract, and not as a will. Mrs. Voshell made the following pledge: "I hereby promise and will pay to the American University * * * the sum of one-third of my estate." The instrument was delivered to the University, and the University accepted it. No precise language is required to create a legal obligation. It is necessary only that such language be used as will clearly show the intention of the person to be bound. Where the relation of debtor and creditor exists during the lifetime of the parties, the mere fact that the time of the payment of the obligation is deferred until after the death of the debtor is not sufficient to make it merely a testamentary paper. If a party signs an instrument creating an obligation which is payable after his death, he creates adebitum in praesenti solvendum in futuro, which is irrevocable like any other obligation. Cover v. Stem, 67 Md. 449, 10 A. 231, 1 Am.. St. Rep. 406; Junkins v. Sullivan, 110 Md. 539, 542, 73 A. 264; Patterson v. Chapman, Cal., 179 Cal. 203,176 P. 37, 2 A.L.R. 1467. *Page 695
It is true that ordinarily a promise to make a gift is an offer which, in the absence of consideration, cannot be enforced.Cottage Street Methodist Church v. Kendall, 121 Mass. 528, 23 Am. Rep. 286. But a charitable subscription is an offer which becomes a binding contract as soon as the enterprise toward which the subscription was given has been commenced, or liability has been incurred in furtherance of the enterprise on the faith of the subscription. The courts ought not to allow charitable work to be frustrated and the trustees of such enterprises to be embarrassed by the refusal of individuals to comply with their solemn pledges to contribute during the progress of work which they themselves have set in motion. Gettings v. Mayhew,6 Md. 113, 131, 132; Erdman v. Trustees of Eutaw Church, 129 Md. 595,99 A. 793; Amherst Academy v. Cowls, 6 Picks., Mass., 427, 17 Am. Dec. 387, 391; Keuka College v. Ray, 167 N.Y. 96,60 N.E. 325; Trustees of University of Pennsylvania v. Cadwalader,277 Pa. 512, 121 A. 314; Furman University v. Waller, 124 S.C. 68.117 S.E. 356, 33 A.L.R. 615; Hardin College v. Johnson, 221 Mo. App. 285, 3 S.W.2d 264; Rouff v. Washington and LeeUniversity, Tex. Civ. App., 48 S.W.2d 483.
In this case the subscriber makes her pledge in consideration of her interest in Christian education, and the University avers that the subscription was accepted upon the terms and conditions stipulated therein, and was entered upon its records. The University also asserts that it must rely largely for its support upon contributions from benefactors; that it does not appraise individual pledges and determine to what extent it should rely on each, but in the administration of its affairs it reckons this mass of potential receipts importantly in its financial planning, and is enabled by experience to make a rough estimate of the percentage of loss. The English courts have rigidly held that subscriptions to charitable and educational institutions are promises without consideration, which may be withdrawn at any time before acceptance, and are therefore nudum pactum. *Page 696 However, it is recognized in the United States that charitable pledges and bequests, because of their lofty motivation and the benefits which they confer upon society, should be strongly favored by the courts. Inasmuch Gospel Mission v. MercantileTrust Co. of Baltimore, 184 Md. 231, 40 A.2d 506. The trend of American decisions has been to uphold such subscriptions whenever it can be done without overstepping entirely the established rules requiring consideration for contracts. New JerseyOrthopaedic Hospital Dispensary v. Wright, 95 N.J.L. 462, 113 A. 144. In fact, some courts have held that it is not necessary that the institution shall have done a particular thing in reliance upon a particular promise, and thus have adopted the rule that the promise impliedly given by the institution that the fund subscribed will be used in conformity with the terms and objects of the subscription is sufficient consideration to support the subscriber's promise. Ladies' Collegiate Institutev. French, 16 Gray, Mass., 196; Barnett v. Franklin College,10 Ind. App. 103, 37 N.E. 427; In re Griswold, 113 Neb. 256, 202 N.W. 609, 38 A.L.R. 858; Central Maine General Hospital v.Carter, 125 Me. 191, 132 A. 417, 44 A.L.R. 1333; Idwin v.Lombard University, 56 Ohio St. 9, 46 N.E. 63, 36 L.R.A. 239, 60 Am. St. Rep. 727.
I do not think it is necessary to rely upon the provision in the pledge that it is given "in consideration of the mutual promises of other subscribers to the American University Fund of $6,000,000 for Endowment, Buildings, Betterments, Equipment, Liquidation and Expenses." Some courts have sustained charitable subscriptions as contracts on the ground that the promise of each subscriber is supported by the promises of the other subscribers.University of Southern California v. Bryson, 103 Cal. App. 39, 283, P. 949. Professor Williston has criticized that view for the reason that the promise of each subscriber is ordinarily made directly to the charitable corporation, and the subscriber actually does not make his promise in exchange for the promisee's inducing other persons to subscribe. 1 Williston on Contracts, *Page 697 Rev. Ed., sec. 116. However, I think the pledge in this case is a legal obligation because (1) it was given to a University chartered by Congress for the express purpose of carrying out the object contemplated in the instrument, (2) it was given toward a fund to raise the University's endowment and give the institution greater stability and efficiency, and (3) it expressly provided that the subscription shall be known as "The Lidie M. Voshell Memorial Fund."
I am of the opinion that a subscription to a scholarship fund, made upon the condition that the gift shall bear the donor's name and serve to perpetuate her memory, has sufficient consideration to support the donor's promise and creates a bilateral agreement. In Allegheny College v. National Chautauqua County Bank ofJamestown, 246 N.Y. 369, 159 N.E. 173, 176, 57 A.L.R. 980, Chief Judge Cardozo said: "A parallel situation might arise upon the endowment of a chair or a fellowship in a university by the aid of annual payments with the condition that it should commemorate the name of the founder or that of a member of his family. The university would fail to live up to the fair meaning of its promise if it were to publish in its circulars of information and elsewhere the existence of a chair or a fellowship in the prescribed subject, and omit the benefactor's name. A duty to act in ways beneficial to the promisor and beyond the application of the fund to the mere uses of the trust would be cast upon the promisee by the acceptance of the money. We do not need to measure the extent either of benefit to the promisor or the detriment to the promisee implicit in this duty. * * * The longing for post-humous remembrance is an emotion not so weak as to justify us in saying that its gratification is a negligible good."
I think that the duty assumed by the American University to perpetuate the name of Mrs. Voshell as the founder of a memorial fund is sufficient to give validity to the subscription. When the University acceded to the condition stipulated in the pledge, the result was the creation of a bilateral contract. *Page 698