To the rulings of the court that the findings of the trial court that Mr. Hatten signed the note in suit, that he was mentally competent at the time he signed it, and that there is no evidence that his signature was procured by undue influence exercised by the claimant, must be sustained, I agree. These findings cannot be said to be against the great weight and clear preponderance of the evidence and therefore must be sustained on appeal. But I cannot go any further with the court than this.
The three findings of the trial court above referred to being sustained it follows that Mr. Hatten could by will bequeath to the claimant $25,000 if he wanted to. The note in suit is not a will for want of execution with the formalities required for a will. Also he might have made a gift of $25,000 to the claimant if he wanted to, but a promissory note is not a gift, but only an unexecuted promise to make a gift. Tyler v. Stitt, 127 Wis. 379,106 N.W. 114; Estate of Smith, 226 Wis. 556,277 N.W. 141.
It is true that a promissory note payable after the death of the maker may be enforced if it is supported by a valuable consideration. A good consideration is not sufficient.Smith Case, supra. But "an alleged indebtedness or liability which does not in fact exist or which is not a binding and legally enforceable obligation of the obligor cannot ordinarily constitute a consideration for a bill or note." 10 C.J.S. p. 605, § 150; 8 C.J. p. 216, notes 48, 50. There are, of course, exceptions, as notes against which the statute of limitations has run and notes which have been discharged in bankruptcy. But under the rule above stated the consideration of the note in suit, if there is any, must rest on the facts *Page 222 that a contract existed between Mr. Hatten and the claimant that he would pay her for the things furnished him, and that he executed and delivered to her this note as compensation for those things. I cannot read from the evidence in this case any such agreement. Such agreement, if it existed, must be made out from the testimony of the claimant herself. It is true that the instrument in suit is a negotiable promissory note reciting that it was given for value received, and that there is a presumption in the first instance that it was given for a valuable consideration. But when the testimony shows precisely what the consideration was, the presumption is of no avail to support the note.
the testimony of the claimant, so far as it bears on the consideration for the note, is as follows:
"The consideration of the note was for the privileges that he had had in my home over a period of a number of years, for the services that had been rendered to him through my family and myself over a period of years, for privileges that I had made for him and for other things I did for him that he considered of value to him to the amount of what he paid for my obligations. I knew Mr. Hatten for twenty-five years. At times he came to my home for meals during that entire time but not so frequently as in the last seven years. Sometimes he would be there for a couple of meals a week during the last seven years and sometimes I would not see him for a month, and then when my husband was sick he was there probably a couple of times a week and then later three times a week and in the last year he averaged about three or four times a week. He usually stayed and visited a while after mealtime. Sometimes he would stay for the evening. Sometimes he would come up before church Sunday morning and bring his collar along in his pocket, and would go in and get himself ready to go to church, and he would come there for lunch and spend the afternoon and along toward evening he would go home. Sometimes my son would take the car and take him home.
"On one occasion Mr. Hatten came up there and laid down on the studio couch. He claimed his hotel room was very cold and he would be almost frozen. I would start the *Page 223 fire in the fireplace and he would go on the couch and fall asleep. This night I came down in the morning and he was still there. Several times in the evening he would fall asleep and I would let him lie there and would call my son and he would come over. Once it bothered me because he was sleeping so soundly. I called up my son and had him look him over and he said, `he is having the sleep of his life, let him sleep and I will come over later.' Mr. Hatten was very sensitive. I would have my son drop in, not letting him know he was coming there to take him home. On that occasion he slept on the studio couch in the library. . . .
"I was asked, `You weren't doing it with the expectation of getting money? And I answered, `No, sir, I wasn't doing it expecting to receive money at that time, although I felt as though what we did for him I should be paid. I did not feel as though I could afford to take him out in my car as much as I did.'
"I was asked whether it registered very sharply with me, and I answered, `I felt as though if he wanted to pay me all right, if he didn't all right. That is the way I felt about it.' That is my feeling at present.
"I mean I rendered these same kind of services for twenty-five years. He never said anything about the period of time during which I had been kind to him. He did say he appreciated the privileges of my home and what my family and I had done for him. The services I rendered as the hostess in the home were the usual acts of hospitality I or anyone else would render to a guest in the home. I never presented this note to Mr. Hatten for payment."
From this testimony I am unable to see how anyone can spell out any legal obligation on Mr. Hatten's part to pay the claimant for what the claimant did for him. It seems to me plain that had the note not been given, the claimant would not have made any claim against Mr. Hatten or against his estate, and that if she had it would not have been enforceable as a legal obligation. Confessedly there was no legal obligation to pay for anything but the meals and use of automobile furnished. All else was a mere courtesy extended by one friend to another. While the claimant undertakes to include twenty-five years in the period during *Page 224 which these things were furnished, whatever of them was furnished prior to the death of the claimant's husband, was not due and recoverable by the claimant, if due and recoverable at all, but by the claimant's husband, who lived until November, 1932. Thus the claimant could recover, if at all, for only meals and automobile service furnished for the five years after her husband's death. The value of the meals furnished could hardly have exceeded $200 during this period. The value of automobile service recoverable could hardly have been as much as that.
From the testimony quoted I cannot spell out a legal obligation of Hatten, nor can I see how the trial judge could.
Were we to discard all of the claimant's testimony but that to the effect that she expected to be paid for what she did for Hatten and her testimony that Hatten said — on two occasions — that she would be paid for what she did — I can see nothing more than an agreement to pay her the value of the services rendered, which as above stated would not exceed $400 or $500. For this $25,000 is demanded. To my single-track mind the most recoverable would be the value of the things furnished. The rest included in the note was a mere attempt to make a gift, a mere unfulfilled promise to make a gift. To make the things furnished constitute a consideration for the amount of the note there must be some reasonable relation between the value of the things furnished and the amount of the note. The amount of the note must constitute by force of some process of reasoning no more than permissible reasonable compensation for the things furnished. Else the way is opened for the plundering of estates through the subterfuge of getting mere promises to make gifts and invalid attempts at testamentary dispositions declared enforceable contracts. Suppose instead writing in the note "twenty-five thousand dollars," Hatten had written in "twenty-five hundred thousand dollars." Would any court have held the note valid as supported by a *Page 225 consideration? Upon the reasoning here relied on a note for $2,500,000 would be valid if the instant note is.
Two decisions of this court are relied on in particular as supporting the instant recovery. Sheldon v. Blackman,188 Wis. 4, 205 N.W. 486, and Estate of McAskill,216 Wis. 276, 257 N.W. 177. The facts in these cases, taken as a whole, are as far from the facts of the instant case as noon is from midnight, as a reading of the opinions in these cases will show. Besides it is said in the Sheldon Case (p. 11):
"There might be circumstances under which the inadequacy of consideration might be so grossly disproportionate to the value of the benefit received or the services rendered that a court might feel justified in refusing to enforce the contract."
The circumstances of this case, if ever there might be such circumstances, not only justify but in my opinion compel this court to refuse "to enforce the contract" if there was a contract.
The claimant drags in, and the opinion of the court seems to sanction it, the case of Park Falls State Bank v.Fordyce, 206 Wis. 628, 238 N.W. 516, as holding that a mere moral consideration will support a promissory note. The case, in my view, goes to no such extent. The holding that case is correctly stated in Elbinger v. Capitol TeutoniaCo. 208 Wis. 163, 165, 242 N.W. 568, as follows:
"We there held that whenever the promisor has originally received value, material pecuniary benefit, under circumstances giving rise to a moral obligation on his part to pay for that which he has received, it is a sufficient consideration to support a promise on his part to pay therefor."
To the same effect is Estate of Smith, supra.
In my opinion the judgment of the county court should be reversed and the claim disallowed; or at most allowed only to the extent of the value of the meals and use of the *Page 226 automobile furnished by claimant after the death of her husband.