This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
If such promise is to perform the legal duty and something more, no consideration for the additional promise exists. If receipt of assets of a decedent's estate is the sole consideration for a promise to pay the debt of a decedent, such promise is not enforceable to the extent that it exceeds such assets,1 even if the promisee destroys his note against decedent in reliance on such promise.2 It was said in an early case that the executor was liable personally if the promise was intended to change the nature of the debt, but otherwise not.3 Of course, if there is an additional consideration, promises to do more than the law requires are upon consideration. Hence, if the claim against decedent's estate is released, there is a consideration for a promise to pay such claim whether the promisor receives assets or not.4 So if there is an agreement for an extension of time, extension forms a consideration for a promise to pay the debt personally, whether there were any assets or not.5 Thus a contract whereby a creditor of a decedent agrees to surrender notes given by such decedent in consideration of a promise by an heir to pay the holder interest thereon for life, has consideration.6 There is a conflict of authority as to the effect of giving a note to take up a debt of decedent's; but the conflict arises not on questions of consideration, but on the question of the effect of such new note upon the prior debt. In some jurisdictions such new note does not discharge the prior debt or in any way affect it. The prior debt of decedent can not, therefore, be a consideration for the new note.7 If the new note discharges decedent's debt, the debt is a consideration for the note.8
8 Alabama. Baker v. Gregory, 28 Ala. 544, 65 Am. Dec. 366.
Arizona. Friedman v. Suttle, 10 Ariz. 57, 9 L. R. A. (N.S.) 933, 85 Pac. 726.
Maryland. Pool v. Horner, 64 Md. 131, 20 Atl. 1036.
New Hampshire. Chadwick v. Knox, 31 N. H. 226, 64 Am. Dec. 329.
South Carolina. McMorris v. Hern-don, 2 Bail. Law (S. Car.) 56, 21 Am. Dec. 515.
Wisconsin. Silverthorn v. Wylie, 96 Wis. 69, 71 N. W. 107.
9 In re Casey's Patents , 1 Ch. 104; Friedman v. Suttle, 10 Ariz. 57, 9 L. R. A. (N.S.) 933, 85 Pac. 726; Chadwick v. Knox, 31 N. H. 226, 64 Am. Dec. 329; Silverthorn v. Wylie, 96 Wis. 69, 71 N. W. 107. "Conceding that the promise made by the defendant was wholly in consideration of the information previously given him by plaintiff, and did not contemplate other or further services from the plaintiff, does the case fall within the rule contended for by appellee? He had previously requested plaintiff to furnish information as to such promising prospects as he should discover. In laying the information before defendant, plaintiff was not acting entirely as a volunteer. We think it fairly may be said that plaintiff furnished this information to defendant at his request and that the request is such a one that, if complied with, the taw would imply a promise to pay, especially if the information given is accepted and acted upon. The rule is that an executed consideration given upon such a request will sustain a promise founded upon it." Friedman v. Suttle, 10 Ariz. 57, 9 L. R. A. (N.S.) 933, 85 Pac. 726.
10 Allen v. Bryson, 67 la. 591, 56 Am. Rep. 358, 25 N. W. 820; Moore v. Elmer, 180 Mass. 15, 61 N. £. 259.
11 Friedman v. Suttle, 10 Ariz. 57, 9 L. R. A. (N.S.) 933, 85 Pac. 726.
1 Bank v. Topping, 13 Wend. (N. Y.) 557. Promise by executor, Paxson v. Nields, 137 Pa. St. 385, 21 Am. St. Rep. 888, 20 Atl. 1016; McGrath v. Barnes, 13 S. Car. 328, 36 Am. Rep. 687; Boyd v. Johnston, 89 Tenn. 284, 14 S. W. 804. Promise by heir, Holmden v. Janes, 42 Kan. 762, 23 Pac. 92.
2 Grimes v. Grimes (Ky.), 89 S. W. 548. (It was said that promisee could therefore recover against decedent's estate on such note.)
3 Anonymous, Vent. 268.
4 Stebbins v. Smith, 21 Mass. (4 Pick.) 97. Promise by administrator, Wilton v. Eaton, 127 Mass. 174; Erwin v. Carroll, 7 Tenn. (1 Yerg.) 145. Promise by widow, Young v. Shepard's Estate, 124 Mich. 552, 83 N. W. 403; Taylor v. Clark (Tenn. Ch. App.), 35 S. W. 442; Reuter v. Sullivan (Tex. Civ. App.), 47 S. W. 683. Promise by heirs, Safe Deposit & Trust Co. y. Wright, 105 Fed. 155, 44 C. C. A. 421; Union & Planters' Bank v. Jefferson, 101 Wis. 452, 44 N. W. 889. Promise by legatee, Young v. Shepard's Estate, 124 Mich. 552, 83 N. W. 403; MeCormal v. Redden, 46 Neb. 776, 65 N. W. 881; by father, Judy v. Louderman, 48 O. S. 562, 29 N. E. 181.
5 Mosely v. Taylor, 34 Ky. (4 Dana) 542; Leonard v. Duffie, 94 Pa. St. 218.
6 Lodge v. Hulings, 63 N. J. Eq. 159, 51 Atl. 1015.
7 United States. Peter v. Beverley, 35 U. S. (10 Pet.) 532, 9 L. ed. 522.
Iowa. Dunne v. Deery, 40 la. 251.
Maine. Walker v. Patterson, 36 Me. 273.
Maryland. Schroeder v. Fink, 60 Md. 436.
Massachusetts. Williams v. Nichols, 76 Mass. (10 Gray) 83.
Minnesota. Nelson v. Larson, 57 Minn. 133, 58 N. W. 687; Germania Bank v. Michaud, 62 Minn. 459, 54 Am. St. Rep. 653, 30 L. R. A. 286, 65 N. W. 70.
Missouri. Kennerly v. Martin, 8 Mo. 698; Hill v. Buford, 9 Mo. 869; Jacobs v. Maloney, 64 Mo. App. 270; Stockton v. Reed, 65 Mo. App. 605.
8Bank v. Topping, 9 Wend. (N. Y.) 273.
But the original liability must be discharged to afford a consideration for the new promise. Thus if A promises, before he obtains a discharge in bankruptcy, to pay a debt from which he is subsequently discharged and such debt remains in force, no consideration for the new promise exists.9 So a written promise to pay a debt not then barred by limitations has no consideration if the original debt is still in force.10