Page:North Dakota Reports (vol. 48).pdf/661

 to have been of the character stated, it is clear that there was no actual consideration for the notes and the mortgage, and that at the time they were given it was understood that they did not represent an indebtedness, and that the father would not enforce collection. Furthermore, the record is devoid of any evidence tending to establish that the father ever advanced any other moneys or property to the defendants. Thus, in the light of the will, which recites, in effect, that approximately $5,000 in money or property had been advanced to the defendant Bruce B., it must be found that this one-half section, the value of which was no greater than this, was the property referred to as having been advanced. Clearly, it was not advanced at all if the testator held an enforceable mortgage for approximately its value.

Counsel argue that the principal defendant has practically acknowledged the indebtedness in a letter dated November 1, 1919, which was written to his stepsister, one of the legatees. ° The letter is typewritten, and apparently was drafted by some one other than the defendant for his signature. It does contain a specific acknowledgement of the indebtedness, and suggests that the addressee and the other heirs give their consent for the executor to withhold foreclosure proceedings and await the collection of the notes and mortgages until final settlement of the father’s estate, at which time the amount might be deducted from the defendant’s share. The letter in evidence is a carbon copy and is so drawn as to indicate that similar letters were sent to the other heirs and legatees with a view to effecting an amicable adjustment. The complaint alleges that a notice of intention to foreclose had previously been served upon the defendant, and the defendant testified, in substance, that he would rather have given up his interest in the estate of his father than be brought to court in this foreclosure proceeding.

We think that, in the light of the evidence showing the nature of the transaction and of the pressure that was being brought to bear to collect the notes given by the defendant, the effect of the letter as an admission is largely destroyed. We are of the opinion that the judgment is clearly right, and it is affirmed.

, C. J., and }},, and , JJ., concur.