Tracy

Defendants’ testator, J. C. Wilmerding, died February 20, 1894. About one year previously he made and signed a paper writing having the form of a promissory note for ten thousand dollars, payable sixty days from its date to the order of Felix Tracy, the plaintiff. It is claimed on the latter’s behalf in this action (which is founded on said note as a demand against the estate of said deceased) that the instrument was delivered by the testator to a third person for plaintiff’s use, and that a valid gift thereof, either inter vivos or in view of death, was made by the testator to the plaintiff. There was no consideration for the note, and plaintiff first learned of its existence by information from the executors some months after the teslator’s death.

The court below found that there was no delivery of the note as alleged by plaintiff, and held therefore that the instrument never had effect; whether the evidence justified such finding is made a question in the case, but it is not necessary to be decided. For if it were conceded that delivery was proved, yet, as between the donee and the donor ox his estate, the gift of the donor’s own promissory note created no enforceable…