Brown v. Copeland , 206 Ala. 124 ( 1921 )

  • Upon the issue of non est factum the evidence amply supports the finding of the court adversely to defendant, and the question for review is upon the plea of no consideration.

    Appellant's contention is that, as a matter of law, a note given to plaintiff upon the consideration alone of his indebtedness to her deceased husband was without any valid consideration, and will not support a recovery by her.

    Distributees or legatees of a decedent "have no title to the assets, and are not appointed by law to demand or receive them; all their interest is secondary, and is capable of conversion into unqualified ownership, only through the process of administration." Costephens v. Dean, 69 Ala. 385. From this principle it follows that plaintiff, as widow of Dr. Copeland, was not entitled to demand or receive payment of defendant's indebtedness to him, nor could she give to defendant any receipt or acquittance which would protect him from liability to an administrator subsequently appointed.

    In order to convert defendant's previous indebtedness to plaintiff's husband into a valid consideration for the note given to her, it was necessary for her to show such a relationship on her part to that indebtedness as would enable her to give defendant a valid receipt in discharge of it. Nelson v. Lovejoy, 14 Ala. 568. The mere fact that she was the creditor's widow does not show such relationship and interest. In receiving the note neither plaintiff nor the decedent's estate surrendered anything of value, and in giving the note defendant did not receive or *Page 125 secure anything of value for himself. In the text of Corpus Juris it is stated that —

    "Where the consideration is the maker's debt to the decedent, it will not support a note made to his widow, or even to his personal representative, if the debt did not pass to such representative." 8 Corp. Jur. 219, § 353.

    Of course if it should be made to appear that the right to the original indebtedness had in any way become vested in plaintiff, then the note was founded upon a valid consideration.

    Under the evidence before the court, we hold that defendant's plea of no consideration should have been sustained, and the judgment for plaintiff was erroneous.

    The judgment will be reversed, and, as plaintiff may be able to make the requisite showing on another trial, we will remand the cause, instead of rendering judgment here.

    Reversed and remanded.

    ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.