The opinion of the Court was drawn up by
Emery J.As the note was lost after the commencement of the action, parol proof was rightfully received of its contents and of the indorsement. The note was dated Feb. 15, 1832, given by Joshua Gould to Hanson Hight, or his order, for $270, payable in two years from April then next, with interest annually. And a memorandum was made upon the back of the note substantially as follows. March, 1832. “ For a valuable consideration, I hereby assign the within note to Abigail Weston my daughter, to be collected for her own use and benefit; and I hereby assign to her the same security which I hold for the payment of said note.” The memorandum was signed by said Hanson Hight. And on July, 1835, before the commencement of this action, said Abigail and her husband, George B. Weston, indorsed the note to the plaintiff without recourse to them. The consideration of the note was a bond, which the intestate gave to said Gould, to convey certain real estate, owned by the intestate, on Gould’s paying this and other notes. It was proved, that Gould was not supposed to have attachable property, which was visible, in his hands for several years last past. An action was commenced on the note by George B. Weston and wife, in their names, against the defendant as administrator, and they failed in proof before the jury, and became nonsuit, after which they transferred the note to the plaintiff. G. B. Weston testified, that on the first day of May, 1834, he presented the note to said Gould and demanded payment, which was refused, and on that day he notified the defendant that the note had been presented to Gould and payment refused, and demanded of the defendant payment of the note, or a conveyance *290of the real estate, and defendant told him he should not have the land. In the June following, the defendant told him he should not-have the land, but would pay the note. The testimony of said Abigail Weston was, that the intestate indorsed the note to her, and that the substance of the indorsement was, that she should have the same indemnity that he' had. He said the note was good, and that the land was holden for it, and if Gould did not pay the note, of which he seemed suspicious, that she might have the land" for which the' note was given, if she chose, or the heirs would pay her the amount of said rióte, and keep the land.
This is not a case of donatio caus'a mortis'. It was not made in' the last sickness of the intestate. The note was given to Abigail Weston by the intestate,- in March, 1832, when he was sick and expected to live but a little while; but he got better and attended to his business until December, 1832, when he" was taken sick again, so as to be confined to his house, and soon" after died. His disorder was consumption. It is truly said to be a most flattering, deceptive and fatal disease. It is known to’continue’ for years, hut with intervals of such portions of seeming health that it has little effect upon the mental powers, áñdj as in this instance, not to' incapacitate the sufferer from attending to his business. The very ground upon which donations of this description are supported fail-' ed. There was such a subsequent recovery as vacated the'gift.
In Holliday v. Atkinson & al. Exrs. 5 Barnw. & Cress. 501, (in 1826) Abbott C. J. says, a promissory note is not good, as a donatio causa mortis; and in Parish v. Stone, 14 Pick. 198, it was’ held, that the delivery of a donor’s own note, payable to the donee,cannot constitute a donatio mortis causa to the donee. Nor would the equalizing the distribution of one’s estate after his decease be a sufficient consideration for a contract by him to pay money. The attempt here is to charge the administrator by reason of the indorsement of the note. We are not aware that this would'in general be greater ground for claim against him, than if the note of' the testator had been directly given to his daughter. We are farther satisfied, that if the testimony of George B. Weston was credited, the demand and notice were seasonably made. Theré was, however,.contradictory evidence, and the case is presented to us, under some peculiar circumstances. We' perceive in a certain *291extent of the evidence, an almost certain foundation for the claim of the plaintiff, and in a little farther advance, an unquestionable destruction of it. Looking yet farther we apprehend a possibility, that injustice may be done to the plaintiff from the want of a full exhibition of all the facts which may truly exist. An arrangement was made by consent to bring the case before us; and as our desire is to do lull justice to the parties ; perceiving that there may have been such a release of the right and interest which Weston and bis wife bad in Sight’s, the intestate, estate, by way of advancement, as might constitute a good consideration for the indorsement of the note to hold the administrator responsible; we deem it important to set aside the nonsuit and grant a new trial, so that the real truth may be made manifest.