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Estate of Lovekamp

    Brief Fact Summary. Prior to his death, a decedent wrote his ex-wife a check for $60,000 thanking her for moving back in with him after his death.

     

    Synopsis of Rule of Law. Past consideration is no consideration at all. 

     

    Facts. The Appellant, Louise Serrato (the "Appellant") and the decedent were married, but at the time of decedent's death had been divorced for eighteen years.  The Appellant initially alleged that when her and the decedent were divorced, they entered into an oral agreement in which the decedent agreed to give the Appellant $60,000.  However, the Appellant eventually said the agreement was not made upon the parties' divorce in 1975, but in July, 1981.  The Appellant alleged the agreement was "to prevent the forced sale and partition of the ranch and cattle jointly held by the parties."  However, in July of 1981, the parties did not owe any property jointly.  Instead, several months after the parties divorce, they began living with one another again, and the decedent wrote a check to the Appellant for $60,000 dated July 29, 1981.  The decedent said the check was for "coming back and staying with him after they divorced."  The decedent died in September, 1999 and the check was too old to cash so the Appellant initiated this action.

     

     

    Issue. Is there valid consideration?

     

    Held. No.  The court quoted the trial court's findings:  "As a matter of law, under these facts, the decedent giving the claimant a check for $60,000.00 to cash if he sold the place or if something happened to him in consideration of claimant having come back and stayed the rest of the years until 1981, fails as a contract between the parties, as claimant coming back and staying with the decedent until 1981 fails as a past consideration."  The alleged consideration was the Appellant moving back in with the decedent a few months after the divorce in 1975.  However, that was about six years before the check was dated, July 29, 1981.  Additionally, "[b]y the great weight of authority a past consideration, if it imposed no legal obligation at the time it was furnished, will support no promise whatever; or, as the rule has been stated otherwise, an executed consideration is no consideration for any promise other than that which the law would imply. A past consideration, it is said, is some act or forbearance in time past by which a man has benefitted without thereby incurring any legal liability; if afterward, whether from good feeling or from interested motives, he makes a promise to the person by whose act or forbearance he has benefitted, and that promise is made on no other consideration than the past benefit, it is gratuitous and cannot be enforced; it is based on motive and not on consideration."

     

    Discussion. This case offers an informative discussion about past consideration. 

     


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