On appeal from the Monmouth Common Pleas.
For the appellant, Theodore D. Parsons.
For the respondent, John J. Quinn.
Before Brogan, Chief Justice, and Justices Parker and Perskie.
The opinion of the court was delivered by
PARKER, J. The above named respondent is the son of defendant's testator, Charles H. Clayton, deceased; the appellant-executrix is the widow of Charles H. Clayton, a second wife and the plaintiff's stepmother. The suit is on a paper purporting to be a promissory note, the genuineness of which was a matter of bitter dispute at the trial. Charles H. Clayton died on June 3d, 1938. The paper which is the
basis of the suit is on a regular promissory note form and is dated February 8th, 1934, promising to pay to Lester Clayton or order $13,600 with interest, "value received."
The will of Charles H. Clayton, which was duly proved, directs the payment of debts, &c.; leaves to his son Lester $100; devises and bequeaths all the residuary estate to the defendant-wife, and appoints her and one Edward G. Forman the executors. For some reason not here material, Mr. Forman did not qualify and letters testamentary were issued to the widow. The son Lester had filed a caveat to the will, but later withdrew the caveat, so that the will was proved without objection. Then, under date of August 1st, 1938, he presented to the executrix a claim for the face of the note with interest, the whole amounting to $17,303.73. In the affidavit attached to the claim he stated: "This note was given to me by my father on February 8th, 1934, and no interest thereon or any part of the principal thereof has been paid." The claim was rejected by the executrix and the present suit was brought in consequence thereof. At the trial the fundamental question of fact was whether or not the note was the genuine note of the decedent, and a great deal of testimony, expert and otherwise, was taken on that point. This question was left to the jury who resolved it in favor of the plaintiff, and defendant appealed.
There are forty-five grounds of appeal, but many of them are abandoned. The case is submitted on briefs, the grounds of appeal relied on being specified under the seven points made in the brief of the appellant. These grounds of appeal will be dealt with in their order.
Point I is based on Grounds Numbers 33 and 41 and both go to the proposition that the language of the affidavit annexed to the claim using the word "gave" indicated a pure gift, and that the gift of a promissory note by a father to a son with no consideration other than that of natural love and affection is without consideration which will support it in the law. Under Ground 33 the court refused the defendant's seventh request to charge, among other things, that if plaintiff was given this note by his father, he was not a holder in due course, and was not entitled to a verdict. We paraphrase
the language of the request. Ground 41 brings up request to charge No. 20 refused by the court, "If this note was a gift to Lester Clayton by his father, then your verdict must be ...