The opinion of the court was delivered by
Hebard, J.There is no principle of law better understood by the profession, than this, — that a promise for the payment of money is void, unless made upon good and.legal consideration. What constitutes a sufficient consideration has been the subject of more doubt and uncertainty. The only consideration for the note in this case is love and affection; — the question is whether that is a sufficient consideration to be the basis of a contract. It is said in general terms that the consideration must be something that is beneficial to the promisor, or prejudicial to the promisee. The consideration in this case can hardly be brought within that rule. A moral obligation is also a good consideration for a promise, — but that holds only in cases where a prior .legal obligation had existed, which, by reason of some existing rule of law, cannot now be enforced. Cook v. Bradley, 7 Conn. 57. It is therefore clear that there was no such moral obligation existing on the part of the maker of the note, as would make a legal consideration. The plaintiff has relied upon the authority of Brackett et ux. v. Waite to establish the sufficiency of this consideration. In that case love and affection were holden to be a sufficient consideration in a deed, for the reason that, upon the execution and delivery of the deed, the title to the land passes, and the contract is no longer executory.
But the case has been argued, mainly, upon the ground that this was a donatio causa mortis, and the authority of the case of Bow*210ers v. Hurd, 10 Mass. 427, has been relied upon by the plaintiff. But that case does not go upon the ground of a gift' causa mortis. It expressly controverts that position. The note in that case was given under circumstances in many respects very similar to the present one, — and this case is attempted to be sustained by the authority of that case upon its similarity, rather than upon the law which governs that case.
To give a transaction the character of a donatio causa mortis, and make it valid, it must be made by the donor in contemplation of approaching death, it must be given to take effect only in case the donor dies, and it must be accompanied by actual delivery. If the gift is absolute, and is to take effect irrespective of the fact whether the donor lives or dies, it then becomes a donatio inter vi~ vos. A gift causa mortis in some respects partakes of the nature of a legacy; it takes effect only upon the death of the donor, and it may be revoked and the thing taken back during his life. But, upon the death of the donor, the title to the thing becomes complete in the donee, without proving the claim before the probate court, and in this respect it differs from a will. A mere promise, therefore, to pay a sum of money is not a donatio causa mortis, within the meaning of the law.
The fact that this note existed in the nature of a claim against the estate, which must be submitted to be allowed before it could be available, determines the character of it. If it was a gift, if any thing was given, it of course was in the donee’s hands, and she, for that, would have no claim against the estate. The claim, in that case, would be made by the other side. If the deceased, instead of giving this written promise, had given the money, and the donee had taken and kept possession of it, she would not have been under the necessity of presenting her claim to the probate court, and this gift would probably have been valid, unless impeached for some cause which has not been suggested. But this was not a gift; it was merely a promise to give, and required the same interpositions of law to make it available, that are required in any case.
This species of gift was recognized by the civil law at an early period in the Roman government, and then received the same construction which has since been put upon it by the common law courts; and the general principles, which govern and distinguish *211those gifts from others, are well understood; but some controversy has arisen in relation to the subject matter of them, and mainly in relation to paper securities and choses in action, and some rather unmeaning distinctions have been made, — as between bonds and notes of hand, and between negotiable notes and those not negotiable, and in relation to this point the decisions have been somewhat conflicting. Some of the courts have held that a bond was the subject of such gift, but that notes were not, others have held that a negotiable note might be the subject of a gift, but that a note not negotiable was not, and some seem to suppose that a note, whether negotiable or not, might as well pass by this principle of law as a bond. And my own opinion would coincide with this last view of the case. I am unable to see any distinction in principle, or indeed any reason why a note of a third person may not as well pass by a gift causa mortis, as a horse, or a piece of furniture, or any other species of personal property. Notes, whether negotiable or not, are made the subject of sale and purchase, and the transactions, in relation to them, are recognized and protected by law. In the case of Coutant v. Schuyler et al., 1 Paige 316, the chancellor repudiates the distinction between a bond and a note, and adopts the doctrine that the note of a third person is the proper subject of such gift. But I am not aware that there is any case to be found, in which it has been held that the note of the donor is a proper subject of such gift, except the case of Wright v. Wright, 1 Cow. 598, and that is not regarded as a well considered case, and is referred to in the case of Raymond v. Selleck, 10 Conn. 480, with disapprobation, and is opposed to the authority of the case of Parish et al. v. Stone, 14 Pick. 198, and is also opposed to the whole current of English authorities.
The case of Raymond v. Selleck, above alluded to, is a case that coinsides with the one under consideration in every important particular, and the court go very fully into the consideration of the subject, and come to a conclusion with which this court is well satisfied.
The doctrine of the case from the 10th Mass, before alluded to, upon which the plaintiff has relied, is, that when the maker of a note has acknowledged that it was given for value, he is not at liberty to deny it; and it was upon that ground that the recovery was *212had in that case, and not on the ground that it was a gift causa mortis. But, although that doctrine once obtained in Massachusetts, it is not law there now, and I am not aware, that it was ever adopted in this state.
We think, therefore, clearly, that this note was but the evidence, which the daughter held, that the deceased, in his life time, had promised to give her the sum of money therein expressed, and to be treated like any other note that is void for want of consideration ; and to hold differently, we think, would establish a very dangerous doctrine, and one that would overturn our whole system of testamentary disposition of estates. It might, in some cases, put whole estates at the mercy of a few interested individuals, who happen to have access to, and who have gained the confidence of the dying man, and the transaction would be disencumbered of all the salutary checks which the law has thrown around the disposition of property by will, — there being no witnesses required, and there being no tribunal instituted by law for the purpose of testing its validity after the decease of the donor; — and the very circumstance which sometimes renders a will suspicious is the living principle in a donatio causa mortis. The circumstance that a will is made just at the closing period of life, when the judgment of the testator has become weakened by sickness and the prostration of his physical powers, and when the consideration of dollars and cents must have lost much of its hold upon his affections, is always taken into the account, and weighs against the validity of a will. Whereas a donatio causa mortis, to have any validity, must be made in the donor’s last sickness, in view and in contemplation of approaching death; and, unlike wills, is perfected only by the delivery and possession of the gift. Donatio perjicitur possessione accipientis. Noble v. Smith et al., 2 Johns. 52.
The judgment of the county court is affirmed.