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BAPTIST UNIVERSITY v. BORDEN.
Items 4 and 10, was sustained by his Honor and no exception made thereto.
The thirteenth contention that the executor should pay out of the personal estate all liabilities arising out of the contract with the Government of the United States, set out in paragraph 16, was sustained by his Honor and the executor excepted. We concur with the ruling of his Honor upon this question. As we have seen rents follow the reversion and can only be subjected to the payment of debts when there is a failure of personalty and it becomes necessary to subject the land. The amound paid by the executor for debts accruing under the provisions of said contract are the personal liabilities of the testator, accruing it is true since his death, but in consequence of the contract made by him prior thereto.
The third contention by the trustees of the Baptist Female University, that the subscription of $1,000 on the indebtedness of said University, set forth in paragraph 6, is a debt against the estate, and the same was not adeemed by the devises in the will of the testator to said University, may be considered in connection with the fourteenth contention of the legatees, in Item 6 and the executor, that the subscription of one thousand dollars is without consideration and does not create a binding obligation. The facts in regard to these contentions are that the testator made a subscription of one thousand dollars to the Baptist Female University of North Carolina for the purpose of aiding in the payment of certain indebtedness already created amounting to more than forty thousand dollars; that said University is a school in the control of the Baptist denomination of which the testator was a member; that such subscription was made or given to R. T. Vann, president of said institution a part of whose duty it is to solicit subscriptions for the payment of said debt; that said testator verbally authorized said Vann to announce the said subscription in a public convention of the Baptists of
BAPTIST UNIVERSITY v. BORDEN.
North Carolina where other amounts were subscribed by various parties, and the same was announced in the presence of said testator; that said subscription was published in the public prints; that most of the said subscriptions are paid; that said University being indebted as aforesaid employed agents to solicit subscriptions, for the payment of said indebtedness, and in securing said subscriptions it incurred liability to said agents for their compensation and expended money in payment of said agents; that after said subscription was made as aforesaid, the said testator executed his will, which is herewith attached, and made the devises to said University as set out in the same.
The decision of this question is dependent upon the solution of the question whether there be any consideration to support the promise to give $1,000 to the Baptist Female University. It is well settled by a long line of authorities that "a simple contract is incapable of becoming the subject of an action unless supported by a consideration." Smith on Contracts, 106. This is elementary and needs no citation.
We find a very satisfactory definition of a valuable consideration in the case of Curry v. Mislar, 10 Exc., 153: "A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss or responsibil ity given, suffered or undertaken by the other." See Clark on Contracts, Sec. 64.
We find from a careful examination of the numerous cases which have been decided by the courts of the Union, a division of opinion. Among the earliest is the case of Stewart v. Trustees of Hamilton College, 2 Denio, 403. Chancellor Walworth uses the following language: "As a subscription of a single individual agreeing to make a donation to another individual or a corporation for the benefit of the donee merely, I should find great difficulty in finding a valid considera
BAPTIST UNIVERSITY v. BORDEN.
tion to sustain a promise to give without any equivalent therefor, and without any binding agreement on the part of the donee to do anything on his part which would be a loss or injury to him. . . There is no difficulty in my mind in finding a good and sufficient consideration to support a subscription of this kind made by several individuals. Every member of society has an interest in supporting an institution of religion and learning in the community where he resides. And when he consents to become a subscriber with others to raise a fund for that purpose, the real consideration for his promise is the promise which others have already made or which he expects them to make to contribute to the same object. In other words the mutual promises of the several subscribers to contribute toward the fund to be raised for the specified object in which all feel an interest, are the real consideration of the promise of each. For this purpose also, the various subscriptions to the same paper and for the same object, although in fact made at different times, may in legal contemplation be considered as having been made simultaneously. The consideration of the promise therefore is not any consideration of benefit received by each subscriber from the religious or literary corporation to which the amount of his subscription is made payable, nor is his promise founded upon any consideration of injury which the payee has sustained or is to sustain, or be put to for his benefit. But the consideration of the promise of each subscriber is the corresponding promise which is made by other subscribers. Mutual promises have always been held sufficient as between the parties to sustain the promise of each. And it has also been the settled law from the time of the decision in the case of Dutton v. Pool, Freeman Law Report, 471, in 1678, down to the present time, that a party for whose benefit a promise is made may sue in assumpsit upon such promise, although the
BAPTIST UNIVERSITY v. BORDEN
consideration therefor was a consideration between the promisor and a third person.'
In the case of the Trustees of Dartmouth College v. Woodard, 4 Wheat, 518, Chief Justice Marshall, speaking of the contributions to the funds of that institution, says: "These gifts were made, not indeed to make a profit to the donors or their posterity, but for something in their opinion of inestimable value, for something which they deemed a full equivalent for the money with which it was purchased. The consideration for which they stipulated is the perpetual application of the fund to its object in the mode prescribed by themselves."
In Congregational Society v. Perry, 6 N. H., 164; 25 Am. Dec., 455, it is held: "Where several agree to contribute to a common object, which they wish to accomplish, the promise of each is a good consideration for the promise of the others."
In Norton v. Janvier, 5 Harrington, 346, Booth, C. J., says: "The law will not enforce a mere gratuitous or voluntary promise made without consideration. But the question is what is a merely gratuitous promise. If a subscription be made to a common object on condition that such object is accomplished, or sufficient money be raised to effect that object, and that condition is performed, an obligation to pay would be perfect and may be enforced by a suit at law."
In Wayne & Ont. Coll. Inst. v. Smith, 36 Barb., 576, the court uses the following language: "I am by no means satisfied that, in this country where all our religious, educational and charitable institutions are founded by voluntary associations and dependent upon private liberality, the personal benefit to be derived from the erection of a church edifice for worship by himself and family, or the erection of an academy or other institution of learning in his immediate neighborhood for the education of his children, are not works involving a sufficiency of private interest to every citizen and of
BAPTIST UNIVERSITY BORDEN.
pecuniary benefit to maintain a promise expressly and distinctly made, received and acted upon in the erection of buildings for such purposes." It is conceded by the court in this case that this view has not been adopted in most of the cases, and we quote it for the purpose of showing the line of thought. passing through the judicial mind upon this question many
In Williams College v. Danforth, 12 Pick., 541, Chief Justice Shaw, in speaking of a subscription made by several to a common object, says:
"In this case there is an express contract between parties capable of contracting upon mutual stipulations, each having an interest in the stipulations of the others, and these stipu- . lations being such as might be enforced by judicial process. The subscription in the first instance was in the nature of a proposal to the college, by its terms not binding till accepted, and before acceptance revocable. But when the college accepted it they bound themselves to the performance of the conditions. The conditions were that they should apply the money, principal and interest, to the general literary, scientific and religious purposes of the institution, at Williamston, in which the defendant, with the other subscribers, declared that they had an interest. These were then mutual and independent promises, and, according to a well known rule of law, such promises are mutual considerations for each other." This action was brought upon subscription paper signed by the defendant with others. There were certain conditions upon which the money was to be paid.
In Doyle v. Glasscock, 24 Tex., 200, the court says: "The case thus disclosed, we understand to be this: The plaintiff was one of a committee to raise money for the purchase of a site for the lunatic asylum; he applied to the defendant and received his subscription, and on the faith of it, (or the committee of which he was one) made the purchase, and he ad