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Waul v. Kirkman.

a necessity that you should a little longer befriend us, by arranging the protested bill, and add the amount of it to the mammoth debt we owe Jane and you, as was the understanding between you and me last year, with respect to this same debt. Very respectfully, yours, &c.,

S. HURD.

SAME TO SAME.

Pine Hills, Oct. 12, 1843. Dear Sir: Mary is removed from us by death. She died on the 8th; she died the death of the Christian; may our deaths be as hers. She made a will in the early part of her sickness, directing that her part of the estate should remain connected with mine, and debts paid off from the proceeds of the whole by its annual income. In case the creditors should not grant sufficient, indulgence for that, she directs her executors to sell property to pay debts; after the debts are all satisfied, the next income of her half of the estate, for three years, is to be funded for the benefit of Mrs. Pope during her life, and after death for Jane; the residue of her property she devises in accordance with a long cherished and favorite plan of hers of Christian benevolence. In the meantime, until such fund shall be created and become productive, she directs her executor to pay an annuity of $300 to Mrs. Pope. She has nominated me as her executor. Before deciding whether or not to undertake the executorship, I wish to confer with you respecting our debt. You know the condition of the estate. It owes no debts, (except some little accounts, &c.,) save to you. I owe no debts of any magnitude, but the debt to you is very large, and if pressed to collection would sweep nearly or quite the whole estate. If five or six years can be given, and crops should be good, and the market favorable, the debt may be extinguished, and property enough retained to provide a support for Mrs. Pope as well as myself. The land is now cleared, the effective force increasing, the establishment is upon an economical plan, and if money can be made by planting we can make it. Now I desire such arrangements made, that I can have time, and I wish the arrangements secure from any material change by the

Waul v. Kirkman.

death of any concerned. Otherwise, after two or three years trial, I might see the whole estate sacrificed, and none of Mary's wishes accomplished. I am willing to give my time and energies to carry out her wishes, and provide for her sister, provided there is a prospect of success; but if that cannot be secured, is it not better at once to let the property pay the debts? So I am inclined to think. The debt might be divided into instalments, and notes given accordingly, drawing interest. A lien upon the estate would make the debt to Jane as safe as any she has. Is it replied that this is not according to the will? The same court which has authorized other deviations from the letter might authorize this. With respect to Jane, had her mother lived, our house would have been her home; there she would have returned from school, not as a guest, but as a member of the family, as a child. Now, what my house would have been, had Mary lived, I desire it still to be, a home for Jane and her aunt. I do not wish to interfere with her guardian in what belongs to his duties, but it would be gratifying to be permitted 10 exercise the same parental care over her as her mother would have done. You have many children to care for, I have none. occupies the place of a child to me, and I desire her still to retain it. The plan alone suggested, is in accordance with Mary's most earnest and repeated wishes, and with Jane's. Mr. Kilpatrick's school has just commenced another session, and Jane will go there till we hear from you. Very respectfully, yours, &c.,

S. HURD.

Jane now

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SAME TO SAME.

Troy, 15th of May, 1845. Dear Sir: I propose to sell you the interest of Mary and myself in the Mississippi river land, at a price to be set by Henry Anderson, or some other judge of lands. Mrs. Pope's lawyers, Lucas, Watson, and Clapp, at Holly Springs, suggested, as the basis of a compromise between Mrs. Pope and myself, that I acknowledge the $10,000 claim, and she relinquish all claims under the will. I told them perhaps I might accede to their proposition somewhat modified, but your consent

Waul v. Kirkman.

and approbation were necessary to any such arrangement. In making a compromise of that sort, it would be necessary to put the debt to you into instalments, for the payment of each of which I would give a note, with deed of trust, or mortgage upon the negroes of the estate, each note secured by a certain number of negroes. But I suppose you have already heard from Mr. Anderson on the subject. I lay sick in Holly Springs about two weeks, and am yet not well. I find it necessary that I should have a distinct voucher respecting the credited sum of $15,203.17, for which you took my receipt, inasmuch as the amount must appear in my transactions as executor. Please send me a receipt for it, corresponding in amount and date with the receipt I gave you. Very respectfully, yours, &c.

SAM'L HURD. P. S. Who attends to the paying of taxes on the Mississippi river land ? our laws are quite summary for collecting taxes.

Troy, Sept. 16, 1845. Tho's Kirkman, Esq.

Dear Sir: I wrote to you May 16, upon several matters of business, and have not received any reply; one was an inquiry, Who attended to the payment of taxes on our Mississppi river land? If the taxes are not paid, we may lose the land. I also propose to sell you my interest in that land. I called your attention to the fact, that by giving a note for the balance of Mary's claim upon her husband, (Mr. Smith's estate,) I became chargeable, as her executor, with that amount. I

I request from you, therefore, a voucher, showing that if I received the money from the executor of Mr. Smith, I paid it to Thomas Kirkman. I wish a receipt corresponding to the one you took from me. 'The crops are cut short by the summer drought. Jane still at Nashville. Very respectfully, yours, &c.,

SAM'L HURD. There was other proof, and various instructions were asked on both sides, but it is not deemed necessary to notice any of them not set out in the opinion.

Waul v. Kirkman.

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The jury found for the plaintiff, and the defendant, having been resused a new trial below, sued out this writ of error.

The case was elaborately argued in this court by Watson and Craft, for plaintiff in error, and by

Fisher, Snider, and George S. Yerger, for defendant in error.

Mr. Chief Justice SHARKEY delivered the opinion of the court.

The plaintiff in error was sued as executor of Thomas Hurd, for a debt due by Mrs. Hurd before marriage, to the defendant in error. The marriage took place in 1842; Mrs. Hurd died in October, 1843, and Hurd died in June, 1846. This suit was brought in April, 1849. The indebtedness consisted of a sum of money due on an open account. The question is, Whether a case has been made out, which shows that Hurd, in his lifetime, and after the death of his wise, had become legally liable to pay this debt.

The jury found against the plaintiff in error, and he moved for a new trial, which motion was overruled. Four reasons were assigned on the motion; 1st. Because improper evidence was permitted to go to the jury; 2d. Because improper charges were given; 3d. Proper charges asked by counsel of defendant below were refused ; and 4th. Because the verdict was contrary to law and evidence. On these questions the case comes up.

In the discussion of these several grounds taken for reversing the judgment, the counsel for the plaintiff in error commenced with the last, and insisted that the verdict was against law and evidence. Where the evidence is conflicting or doubtful, it is a delicate matter for an appellate court to interfere with a verdict, which has been permitted to stand by the court below. There should, at least, be a great preponderance of evidence against the verdict. Where that is the case, the statute makes it our duty to interpose. As was very well said by counsel on the other side, the question is not whether the verdict is clearly right, but whether it is manifestly wrong.

The principles of law which must govern this case, are very well settled. The husband is liable for the debts contracted by

Waul v. Kirkman.

the wife before marriage, but his responsibility continues only so long as the relation of husband and wife exists. If the wise die before a recovery, the husband's liability ceases. Clancy, 13, 21. Hurd, therefore, was exonerated from legal liability by his wife's death, unless he became bound in some other manner. This dilemma is attempted to be got rid of by establishing a promise to pay this debt, after his wife's death, in consideration of forbearance. We can see no advantage that can be derived from a mere naked promise, made during the existence of the marriage, without any new consideration. Such a promise cannot be stronger than the law which imposes a legal liability on the husband. It is like a promise to pay a man's own bond. The account stated during the life of Mrs. Hurd was evidence of the correctness of the account, but it is not seen how it could shift the liability, or create a distinct binding obligation.

But subsequent promises are relied on also. The law is equally clear, that even an express promise by the husband, after the dissolution of the marriage, will not bind him personally, without a new consideration to support it. Chitty on Contracts, 39, Boston edit. of 1827. This indeed is the inevitable result of the principle, that the obligation ceases at the wife's death. The liability of the husband does not accrue by virtue of the original contract, but by the marriage, and if it ceases when that is dissolved, he can be liable, then, only as a stranger would be for the debt of a third person. Or if he be executor, he may make himself liable as any other executor can. A promise by a stranger to pay the debt of another, in consideration of forbearance, is sufficient to create a liability, but the promise must be in writing, and the party who seeks to recover on such a contract must allege and prove the forbearance, otherwise he cannot recover, if it appear that the debt was not the debt of the defendant. If Hurd, therefore, was liable as a third person, this is the rule which must govern. But he was also executor. As such he could become liable for the debts of his testatrix, only on a written promise, founded on a new consideration. The statute of frauds does not make the

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