Benton v. Benton

Citations

• 78 Kan. 366
• 97 P. 378
• 1908 Kan. LEXIS 64

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Promissory Note — Time of Payment Not Conditional. A written instrument by which the maker acknowledges an indebtedness and agrees to pay it as soon as. he can is to. be ■ construed as a promissory note payable within a reasonable time. ' '</p> <p>2. Pleadings — Action on a Note — Defendant’s Financial Ability to Pay. In an action upon such an instrument the plaintiff is not required to plead that the defendant has the financial ability to pay it.</p> <p>3..- Wayit of Consideration. A promissory-note recited as its consideration a personal indebtedness owing by the defendant to the plaintiff. In an action thereon the answer alleged that the note was given without consideration, and set out additional facts showing that at the time of its execution the defendant held the amount of the note in trust for the plaintiff and another person. Held, that the answer was good as a plea of want of consideration, and that the recital of a personal indebtedness in the note did not conclusively establish a settlement of the trust.</p> <p>SYLLABUS BY THE COURT.</p> <p>WILLS — Construction. Upon a question involving the interpretation of a part of a will reading “I . . . make the following disposition of my property . . . eight thousand dollars to wife, all of which is to be held in trust by J. O. and H. H. Benton without bond — they to pay heirs such rate of interest as shall be agreed upon, until children become of age — and she remains unmarried' — -in such case money shall fall to my legal heirs,” held, that the words “in such case” are equivalent to “in case she remarries.”</p>