not be enforced, as it is based upon no consideration; and, when the gift is thus incomplete, there is a locus pœnitentiæ, and the gift may be revoked. Where the alleged gift is of legal estate, capable of legal conveyance, and no conveyance is made, the gift is revocable. ... A gift inter vivos cannot be made to take effect in possession in futuro; nor will equity interpose to perfect a defective gift or voluntary settlement made without consideration; nor can equity convert an imperfect gift into a declaration of trust merely on account of that imperfection."

Apart from the difficulty in respect of delivery in effecting an executed gift, the absence of any intent to make a present gift is of course fatal to the claim of a gift.

As examples of cases turning upon that consideration, see the following:

It was said in Daubenspeck v. Biggs (1880) 71 Ind. 255, that, while certain evidence tended to show a purpose upon the part of a deceased wife's husband, to relinquish all right in her estate to her children, it failed to show that he accomplished that purpose in any effectual manner, since he had parted with no possession, had made no delivery of the property or assignment of his interest therein to the alleged donees, and had made no declaration or promise which he was not at full liberty to revoke at any time.

An instrument under seal by a legatee (party of the first part), directing executors (named as the parties of the second part) to pay certain legacies to other persons (not parties to the agreement), which had failed because they were witnesses to the will, was held in Orth v. Kaesche (1914) 165 App. Div. 513, 150 N. Y. Supp. 957 (affirmed in (1918) 222 N. Y. 612, 118 N. E. 1071, without referring to this point) not to amount to an irrevocable gift, since nothing was ever delivered to the donees and no agreement was ever made with them. There was an alternative ground for the decision, in that the instrument was executed under a mistake, and

could in any event be rescinded on that ground.

After expressing the opinion that a conversation, or agreement, if it might be dignified as such, between a mother and her surviving children (which resulted from her suggestion to them that a deceased son intended to make a will in her favor, and that they ought to give her their shares of his estate), would be insufficient of itself to transfer to her the title to any of his property, or to effectuate a gift of the same (although a complete gift inter vivos to the mother was made by such children in respect to certain collateral which formed a part of such estate, by reason of their actual delivery to her of their shares in such collateral), the surrogate in Re Sproule (1904) 42 Misc. 448, 87 N. Y. Supp. 432, said that as to another portion of the son's estate, namely, his undivided shares of his deceased father's estate, there was no attempt to make any transfer, this being strengthened by evidence that the children gave the mother the use only of the son's estate.

In Re Katz (1926) 127 Misc. 16, 215 N. Y. Supp. 775 where it was claimed that decedent had made to his deceased wife's sister a gift of whatever interest he had in his wife's estate over a certain sum, by stating that all he wanted for himself was that sum, and that he wanted the sister to carry out his wife's wishes, and by handing over to the sister his wife's bank books and a letter in which she had not only expressed her wish that he should have that sum, but also her desires as to disposing of other property, and that the sister should be her executrix, the court was not satisfied that the evidence was sufficient to establish a gift of any portion of his interest in his wife's estate, since there was no expression of an intention to make a gift, and, also, since he apparently believed that he had no further interest in the estate.

Although an instrument reciting that certain shares had been left by will to the subscriber, and that he gave them to his named friend, in return for kindness and attention, hav

ing been delivered to the friend, was held in Johnson v. Williams (1882) 63 How. Pr. (N. Y.) 233, affirmed in (1883) 16 N. Y. Week. Dig. 196, which is affirmed without opinion in (1884) 95 N. Y. 668, to be valid as an assignment, where the stock itself was not delivered, the lower court said that the transaction could not be upheld as a gift, either inter vivos or donatio mortis causa.

In Kansas City Theological Seminary v. Kendrick (1918) Mo. App. 203 S. W. 628 (certiorari quashed in (1919) Mo., 216 S. W. 967), where all the heirs of a decedent executed and delivered to defendant a power of attorney, authorizing him to collect from the public administrator what was coming to them, and to settle the estate in accordance with the terms of a defective will, but subsequently revoked such power, the court said, in overruling the plaintiff's claim that the heirs had thereby given it the sum left to it by the will, that there could have been no executed gift until the money had been delivered by the defendant to the plaintiff, and that the contention that the power of attorney was symbolic delivery would, of course, be denied.

Apparently, in reply to the contention that, in quitclaiming to a half brother her interest in a certain piece of property, which was part of their mother's estate, a gift was intended by a sister, it was said in Salt v. Anderson (1919) 107 Wash. 149, 180 Pac. 873, that this could not be presumed, where it was admitted that the mother had wished her estate to be equally divided between the children, and there was evidence that the half brother had agreed to quitclaim to the sister his interest in some other property which had belonged to the mother.

In Whiting v. Farnsworth (1911) 108 Me. 384, 81 Atl. 214, where a surviving husband had handed over to his wife's heirs, immediately after her death, certain articles of personal property which had belonged to her, and it was contended that he had an interest in them because his distributive share in her estate would come out of them, and that accordingly he could give away that interest, the

court said, in refusing to enforce the alleged gift, that it was not concerned with his power to assign his distributive share, by way of gift or otherwise, but merely whether he had any interest, legal or equitable, in the property itself, which he could transfer by gift of the property. And, after pointing out that he did not assign his share, it said that he was merely holding the property as a depository, pending the appointment of an administrator, and had neither a legal nor an equitable title to it.

In Barroll v. Brice (1911) 115 Md. 498, 80 Atl. 1035, it was held that a perfected gift by a surviving husband, of his interest in a fund which his deceased wife had loaned him, could not be predicated, so as to preclude his executor recovering back from her estate the husband's statutory onethird share, after having paid the fund over to such estate,-where the husband had admitted the debt to her testamentary representative, had not objected to the distribution of the estate (the will having made no provision for him), and had been permitted to retain the fund at his own request, although he had promised that it would be paid eventually.

As to a renunciation of part of an interest in an estate, in order to equalize the shares of the heirs, to conform with the testator's wishes, not amounting to a donation, see Re Haaf (1899) 52 La. Ann. 249, 26 So. 834.

The assignment to a wife, to support herself and children, of all the husband's interest which had accrued in an estate, was held in Hartman's Estate (1906) 31 Pa. Super. Ct. 152, to be inoperative where the will provided that the bequest was for his sole and exclusive use and benefit,—even though he had been jailed for nonsupport and released only because of having made such assignment.

A voluntary donation, by way of a deed, from a feeble old lady to her natural son, of her interest in an estate, was set aside upon the ground that she did not understand what she was doing and that the son unduly influenced her, in Doyle v. Doyle (1920) 47 N. B. 45. E. W. H.

they had met by appointment. When asked what were the circumstances under which the note was delivered at that place, she answered as follows: "We are going to be married very shortly, and I met Mr. Cockrell, and he wanted to present me with a wedding gift, and he came along and said, 'Here's your wedding gift.'"

And, when questioned as to what she said when the note was received, she answered: "I thanked him profusely. I was very glad to get it."

At the trial of the case the plaintiff was asked on cross-examination how she had come into possession of this note, and answered: "Well, Mr. Cockrell and I had become engaged, and I talked about an engagement ring, and I showed him the kind of ring I wanted; it was the kind my sister had, a very beautiful ring. He said he couldn't give it to me right then, but that he would get it, and all the time we were engaged my friends would ask me when I was going to get my ring, and I would tell them a little later; so finally, in talking it over with Mr. Cockrell, he said, 'I will give you a substantial gift until you get your ring.' So on the evening of April 2d Mr. Cockrell met me at 37 Wall street, and he took these papers out of his pocket and said, 'Here is your wedding gift;' and that is how I came into possession of the note."

The defendant at the trial offered to prove that there was a failure of consideration for the note between the original parties, and contended that such evidence was admissible on the ground that the plaintiff was not a holder in due course. The offer was overruled, and the trial court, when directing a verdict, stated: "The presumption in this case is that Mrs. Cockrell is a holder in due course. The only testimony bearing upon that question is the testimony of the plaintiff herself as to the circumstances under which she secured possession of this note.

Under those circumstances, you have a situation where the plaintiff, under the law, is presumed

We think that the testimony of the plaintiff, both before and at the trial, was sufficient to destroy the existing presumption that she was a bona fide holder for value, and consequently did not Bills and notes

for value.

hold the note free gift-purchaser from equities between the original parties. The note in question was delivered and made payable in the state of New York, and the law of that state governs in this case. Section 91 of the Negotiable Instrument Act of New York (Consol. Laws, chap. 38), which is identical with § 52 of the New Jersey statute (3 Comp. Stat. 1910, p. 3741), states that a holder in due course is a holder who has taken the instrument under the following conditions: "(1) That it is complete and regular upon its face. (2) That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact.

(3)

That he took it in good faith and for value. (4) That at the time it was negotiated to him he had no notice. of any infirmity in the instrument or defect in the title of the person negotiating it."

It is apparent from the testimony of the plaintiff that the note was given and accepted as a gift, and the only consideration for the transfer was love and affection, which do not constitute a sufficient consideration to support a promissory note. There was no consideration upon which the plaintiff could have enforced her claim against the transferrer as indorser. A valuable consideration is a class of consideration upon which a promise may be Contracts-valufounded, and enti- able consideratles the promisee to enforce his claim against an unwilling promisor. Fischer v. Union Trust Co. 138 Mich. 612, 68 L.R.A. 987, 110 Am. St. Rep. 329, 101 N. W. 852. The transfer could not have

tion-what is.

been made in consideration of the impending marriage, because the plaintiff and transferrer had been engaged and agreed to marry some six months prior to the delivery of the note, and the question of the note had never been discussed; the plaintiff having had no knowledge of its existence until the day of delivery, and it was transferred unconditionally without any previous arrangements between the parties or any promise or act on the part of the plaintiff. It has been held that a donee takes only the right of the payee, and that a wife, taking a note as a gift from her husband, is not a purchaser for value. Holladay v. Rich, 93 Neb. 491, 140 N. W. 794; Greer v. Orchard, 175 Mo. App. 494, 161 S. W. 875.

Promises or contracts made on the basis of mere love and affection, unsupported by a pecuniary or material benefit, create at most bare moral obligations, and a breach thereof presents no cause for redress by the courts. The respondent contends that love and affection has been held to be a good consideration in instruments of conveyance, and therefore should be so considered in the present case. It is true that love and affection are held to be a sufficient considera

contracts-considerationlove and affection.

Bills and notes- tion for a deed, because, upon its execution and delivery, the title to the land passes, and the contract is no longer executory, which is not the case in a promissory note, as nothing passes under the instrument until it is paid. A consideration of this character will support a contract as between the parties, when executed, but will not support an action to enforce an executory contract.

It is now well established that a

for an executory promise. Freeman v. Robinson, 38 N. J. L. 383, 20 Am. Rep. 399; Morris v. Norton, 21 C. C. A. 553, 43 U. S. App. 739, 75 Fed. 912; Widger v. Baxter, 190 Mass. 130, 3 L.R.A. (N.S.) 436, 76 N. E. 509; Parsons v. Teller, 188 N. Y. 318, 80 N. E. 930. The Negotiable Instrument Act clearly contemplates that, to be a holder in "due course,' the holder must, among other things, have acquired the note in good faith and for value, which is not the fact in this case.

Under the Negotiable Instruments Act of New York (§ 54) and of New Jersey (§ 28) absence or failure of consideration is a matter of defense as against any person not a holder in due course; and partial failure of consideration is a defense pro tanto, whether the failure is an ascertained and liquidated amount or otherwise. The plaintiff not being a holder in due course, it was error to reject proof of failure of consideration for the note between the original parties, which resulted in a direction of a verdict for the plaintiff.

The judgment under review will be reversed.

For affirmance: None.

For reversal: The Chief Justice, Justices Trenchard, Parker, Minturn, Kalisch, Black, Katzenbach, Campbell, and Lloyd, and Judges White, Gardner, Van Buskirk, McGlennon, Kays, and Hetfield.