Tyler v. Stitt

It is very apparent that the appellant has-no valid claim against the estate of the deceased. The instrument in question was without consideration. It was but a mere promise to make a gift in the future. A promise to-make a gift cannot be enforced. Actual delivery of the property is essential to the validity of a gift, and delivery of the promisor’s own note is not delivery of the property, but a-mere promise to deliver it. All this is familiar' law.

It is claimed that the evidence shows such conduct on the-part of the administrator and heir at law as will raise a constructive trust on his part, requiring him to carry out the attempted gift, under the principles laid down in Brook v. *382Chappell, 34 Wis. 405, or at least that be should now be es-topped from asserting that the gift was not valid. We are not called upon now to decide these questions. This is a ■ simple claim against an estate for a debt supposed to be due from the estate. The defendant is defending that claim in 'his representative character as administrator only. The estate is the real defendant; if there is no debt owing from the • estate there can be no recovery. If there be any estoppel or trust which can be invoked against Mr. Stitt, it affects him ■ only as an individual and not as administrator. Being sued as administrator in a pure action at law, he cannot be held •as an individual upon an entirely different cause of action in -equity. The two causes of action could not be joined. Hawarden v. Y. & L. C. Co. 111 Wis. 545, 87 N. W. 472. A fortiori one cannot be turned into the other.

By the Court. — Judgment affirmed.