The opinion of the court was delivered by

The sole question raised by this appeal is whether the estate of the testator, Edward O’Neill, is *363liable to pay the survivors of Douglass, Jackson ,& Pickett a ■certain alleged debt, for at the argument here the last ground of •appeal was abandoned.

The circumstances which gave rise to this claim are peculiar, .and may be stated as follows: Edward O’Neill had been for many years in the employment of Douglass, Jackson & Pickett, proprietors of extensive livery stables in the city of Charleston, and had eventually become their confidential clerk and general manager. In 1879 his health began to fail, and, being about to remove to Summerville, he made a confidential communication to his brother Dennis, the plaintiff in this case, which was testified to by Dennis at the hearing before the master, in the following words: “ My brother told me, when his health was failing, and when he was about to go to Summerville, that I would find instructions in a letter, in his tin box, what to do in reference to a certain sum of money mismanaged or mislaid during the time when he was in the employment of Douglass, Jackson & Pickett.”

The testator died June 27th, 1879, leaving a will dated May 20th, 1879, whereby he appointed his brother Dennis executor, and guardian of his child or children, and, after providing for the payment of all his just debts and funeral expenses, devised and bequeathed his whole estate to his wife, for life, or during widowhood, with remainder to his child or children. The will was duly admitted to probate, the executor qualified and published the usual notice to creditors to present their demands, but no claim was presented by Douglass, Jackson & Pickett, for the reason, as they allege, that they did not then know of any indebtedness on the part of the testator to them. The executor having procured the key of the tin box above referred to, from the testator’s house, repaired to the office of the judge of probate in company with the counsel of the widow, where the tin box, which had been obtained from the safe of Douglass, Jackson & Pickett, where the testator was in the habit of keeping it, was opened and found to contain, amongst other things, the will of the testator, and a sealed envelope, addressed “ Dennis O’Neill, private,” upon which was the following endorsement: “ Don’t *364open this as long E. O’N. is living.” The envelope, when opened, was found to contain the following letter:

“Dear Brother — Pay the amount over to Douglass, Jackson & Pickett, when "Win. Jackson pays you over fiye thousand dollars. Send it to them by express, so they will not be able to find out who sent it. It will be all right as long as they get the money. This is as near as I can come to the amount. Ask them to forgive me if it is any more. Your B., E. O’Neill. May 26th, 1879.”

On the opposite page of the same sheet of paper upon which this letter was written, is the following:

“ Charleston, S. C., May, 1879.

“ Due Douglass, Jackson & Pickett, fifteen hundred dollars for value received.

“$1,500. E. O’NEILL.”

The executor having instituted proceedings for the settlement of the estate of his testator, brought to the attention of the court this claim in favor of Douglass, Jackson & Pickett, to the payment of which the widow objected upon the ground that the claim was not a legal one, whereupon the survivors of Douglass, Jackson & Pickett intervened by petition and asked to have the claim paid.

There is no other evidence in support of the claim, except that above stated, and the question for us to determine is whether this evidence is sufficient to establish the claim. The mere fact that the testator signed a paper in the form of a due bill, acknowledging himself indebted to Douglass, Jackson & Pickett in the sum of $1,500, is certainly not of itself sufficient, for the so-called due bill was never delivered. 1 Dan. Neg. Inst., § 63. But the question is whether this, taken in connection with the other evidence, may not be sufficient to establish the legality of the claim. The reason why a paper in the form of a note constitutes no evidence of indebtedness until it is delivered, is because the transaction is inchoate as long as the paper remains *365in the possession of the maker, and, at most, only furnishes evidence of an intention to give the note, which may or may not ripen into an act. Until it is delivered, it is entirely under the control of the maker and may be destroyed or canceled by him. It cannot by itself even be regarded as an admission of liability, for, until it is delivered, or until the maker does some irrevocable act showing an intention to deliver, it is simply an admission to himself and amounts to no admission at all. But where a person, after signing such a paper, retains it in his possession, and does other acts or makes other declarations, showing that the retention of possession was not for the purpose of enabling him to destroy or cancel it, in case he should change his mind, but for another and different purpose, entirely consistent with the idea that the paper was regarded by him as the evidence of an absolute, binding contract, constituting a valid obligation, then it seems to us that such a paper may be regarded as furnishing evidence of a legal liability.

There cannot be a doubt, from the evidence in this case, that the testator thought that he was indebted to Douglass, Jackson & Pickett, and that such liability grew out of the fact that while he was in the employment of that firm, he had so improperly “ mismanaged or mislaid ” some of their money as to make him liable for the same, and that he displayed extreme anxiety to keep this a secret, especially from his employers. This conclusively shows that his sole purpose in retaining possession of the paper in the form of a due bill was to conceal the facts which gave rise to the indebtedness, and not for the purpose of enabling him to cancel the evidence of such indebtedness, or to recall the admission contained in the paper. His declaration to his brother before his death, was an implied admission that he was liable to make good the loss resulting from his mismanagement, the particulars of which were known only to himself; and this, coupled with his written instructions to his brother as to how he wished the loss repaired, cannot be construed in any other light than as an admission of liability and a promise to pay the same, and then the written memorandum in the form of a due bill indicated the amount for which he admitted his liability.

*366The whole evidence, taken together, amounts to the same thing as if he .had said to his brother, “While I was in the employment of Douglass, Jackson & Pickett, I so mismanaged their funds as to make me liable to them in a sum which you will find stated in a paper in the form of a due bill in my tin box and this amount I wish you to pay them in such a way that they may not know from whom it comes.” If he had said this,, could any one doubt that the evidence would be sufficient to-establish the legality of the claim ?

Suppose he had said to his brother: “ I owe the estate of a, neighbor, who has recently died, a sum of money, which I'borrowed from him shortly before his death, under circumstances-that I do not wish disclosed, but gave him no note or other evidence of such indebtedness, and I wish you to pay the debt in such a way as that it may not be known from whom it comes,, and you will find the amount stated in a memorandum amongst, my private papers.” Such a declaration, whether made orally or in writing, would not be testamentary in its character, but-would be simply furnishing the evidence of an indebtedness incurred during his life-time. So, here, the indebtedness of the-testator to Douglass, Jackson & Pickett arose during his lifetime, but he did not choose to let any one have access to the evidence of such indebtedness until after his death, and, therefore, took care to let his brother, whom he had selected as his executor, know where such evidence could be obtained after his-death.

We agree, therefore, with the Circuit judge, that the evidence adduced was sufficient to establish the claim set up by the survivors of Douglass, Jackson & Pickett.

The judgment of this court is that the judgment of the Circuit Court be affirmed.