Wright v. Wright

nrte Executed W a testator Bess, and delivered to the payee, .without consideraexpectation of dissolution, and intended as a gift, is valid as a donatio causa mortis ; And an action lies thereon, at the suit of the payee, against the executors of the maker. It seems, that on appeal from the refusal of a circuit judge to grant an order for staying; proceedings, with a view to a motion fer a new trial, it is enough that the party make out a doubtful case.

Assumpsit, by payee against executors of the maker, on a promissory note for 500 dollars, dated Sept. 15th, 1821. Plea, the general issue. This cause was tried at the last Franklin Circuit, Aug. 21, 1823, before the Hon. R. * ° _ H. Walworth, Circuit Judge. The defendants attempted io shew a want of consideration for the note, but wholly failed in their proof, and a verdict was found for the plaintiff, tipon proving the hand writing of the testator. Soon after the trial, the defendants discovered, for the first time, that John Livingston had, shortly after the testator’s death, heard the plaintiff declare, that the testator had, by his will, not only released him from a considerable debt, but that he had, also, made a present to him of the note in question. The testator made and published his will in August, 1821, from which time to his death, he remained extremely weak and unfit to transact business. He was the brother of the plaintiff. Upon affidavit of these facts, the defendant applied to Judge Walworth for an order to stay the proceedings in the cause, till the further order of this Court, on a motion for a new trial. His Honor refused the order, for the following reasons, which he endorsed upon the papers presented : “ I cannot direct the proceedings stayed ; because I am satisfied, from what appeared at the trial, and from the affidavit of Livingston, that the defence is not a meritorious one. The testator intended to give this additional sum to the plaintiff, and executed the note for that purpose, and left ample property to pay it; and the defendants, one of whom is a residuary legatee, seek to get rid of it on a technical objection.' Having had one opportunity to do this, they are not entitled to the favour of the Court.” An appeal from the decision of Judge Walworth was made to this Court; and S. A. Foot, for the defendant, cited Fink v. Cox, executor.(a)