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353; Mowatt v. Wright, 19 Id. 508; Dickins v. Jones, 27 Id. 488; Norton v. Marden, 32 Id. 132; Frontier Bank v. Morse, 38 Id. 284; Mayor of Baltimore v. Lefferman, 45 Id. 171; Baltimore etc. R. R. Co. v. Faunce, 46 Id. 655, and notes. As to recovery of money paid under a mistake of law, see Culbreath v. Culbreath, 50 Id. 375; Northrop v. Graves, Id. 264.

MONEY PAID UPON A CONSIDERATION WHICH FAILS is recoverable as money had and received: 2 Greenl. Ev., scc. 124; Dean v. Mason, 10 Am. Dec. 162; Smith v. McCluskey, 45 Barb. 610; Leach v. Tilton, 40 N. H. 475; Lebanon v. Heath, 47 Id. 353; Woodward v. Fels, 1 Bush, 162; French v. Millard, 2 Ohio St. 44. As where money is paid for an article entirely worthless: Robinson v. Bright, 3 Metc. (Ky.) 30; such as counterfeit or forged notes, or the like: Young v. Adams, 6 Mass. 181; Brewster v. Burnett, 125 Id. 68; S. C., 28 Am. Rep. 203; Tyler v. Bailey, 71 Ill. 34; Carpenter v. Northborough Nat. Bank, 123 Mass. 66; Welch v. Goodwin, Id. 71; S. C., 25 Am. Rep. 24; or for property to which the vendor is unable or refuses to make title, or for the performance of an act which he is unable or refuses to perform: Philipson v. Bates, 22 Am. Dec. 444; Pipkin v. James, 34 Am. Dec. 652; Johnson v. Evans, 50 Id. 669; Murray v. Clay, 47 Id. 731; Reina v. Cross, 6 Cal. 29; Allen v. Citizens' Steam Nav. Co., 22 Id. 28; Demesmey v. Gravelin, 56 Ill. 93; Earle v. Bickford, 6 Allen, 549; Hotchkiss v. Judd, 12 Id. 447; Taylor v. Reid, 19 Minn. 372; Kerrigan v. Kelly, 17 Mo. 275; King v. Hutchins, 28 N. H. 561; Briggs v. Vanderbilt, 19 Barb. 222; Randolph v. Planters' etc. Bank, 7 Rich. 134; or where the contract is afterwards rescinded, where the refunding of the money is all that remains to be done: Gillet v. Maynard, 4 Am. Dec. 329; Harper v. Claxton, 39 Mich. 46; Middleton v. Woolen Mills Co., 35 Ohio St. 253; Pharr v. Bachelor, 3 Ala. 237; Bales v. Weddle, 14 Ind. 349; or where money is advanced for a particular purpose, and is not so applied, or is applied to another: De Bernales v. Fuller, 14 East, 590, note; Critzer v. McConnel, 15 Ill. 172; Parker v. Fisher, 39 Id. 164; Catlin v. Birchard, 13 Mich. 110; Strong v. Bliss, 6 Met. 393; Bahnsen v. Clemmons, 79 N. C. 556; Churchill v. Stone, 58 Barb. 233; Bank of Boston v. United States, 10 Ct. of Cl. 519.

AS TO RIGHT OF TENANT IN COMMON to maintain assumpsit for money had and received against his co-tenant, for the proceeds or rents and profits of the common property received by the latter, see Coles v. Coles, 8 Am. Dec. 231; Gardiner Mfg. Co. v. Heald, 17 Id. 248; and the note to Chambers v. Cham. bers, 14 Id. 586.

PAROL ACCEPTANCE OF BILL IS GOOD: Walker v. Lide, 44 Am. Dec. 252, and note; Fisher v. Beckwith, 46 Id. 174; Exchange Bank v. Rice, 98 Mass. 289; Cook v. Baldwin, 120 Id. 319, citing the principal case.

NEGOTIABLE BILL OR NOTE, WHAT NECESSARY to constitute: See Gerard v. La Coste, 1 Am. Dec. 236; Woolley v. Sergeant, 14 Id. 419; Cook v. Satterlee, 16 Id. 432; Franklin v. March, 25 Id. 462; Kendall v. Galvin, 32 Id. 141; Hubble v. Fogartie, 45 Id. 775. That an order having all the necessary parties is a good inland bill, though not negotiable, is a point to which the principal case is cited in Cook v. Baldwin, 120 Mass. 318. It is not essential to the character of a note or bill that it should be negotiable, and other words than " or order" or or bearer" may be used to express negotiability: Michigan Bank v. Eldred, 9 Wall. 547, also citing the principal case.

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PROUTY V. ROBERTS.

[6 CUSHING, 19.]

THAT NOTE WAS OBTAINED FROM PAYEE BY FALSE REPRESENTATIONS, to the indorsee's knowledge, is no defense to an action by the latter against the maker.

ASSUMPSIT on a note made by the defendant to the order of one Whitney and indorsed by the latter. The defendant offered to show that the note was obtained from Whitney, the payee, by certain false and fraudulent representations, of which the plaintiff had knowledge when he took it, and that, on that account, he paid only a small sum for it. The evidence was excluded as constituting no defense. Verdict for the plaintiff, and exceptions by the defendant.

G. Grennell, for the defendant.

G. T. Davis, for the plaintiff.

By COURT. The directions we think were right; the plaintiff proved a legal title to the note, and the facts proposed to be proved by the defendant could afford him no ground of defense. It was no fraud upon the defendant; he was called upon to pay only what he had undertaken to pay; and payment to the plaintiff would be a good discharge: Knights v. Putnam, 3 Pick. 184.

Judgment on the verdict.

FISK V. CUSHMAN.

[6 CUSHING, 20.]

MARRIED WOMAN HAS LEGAL CAPACITY TO TAKE GIFTS, transfers of stock, etc., and to have deposits made to her credit in a bank, or to be the payee of a note, or obligee of a bond, or the like, and may hold the same to her own use against her husband's heirs if she survives him, and he has not reduced the same to possession, although the consideration may have proceeded from him.

CONTRACT OF THIRD PERSON TO PAY MONEY TO FEME COVERT, or to hold as her bailee, or to vest her with title to corporate stock, inures to her sole benefit as against her husband's heirs if she survives him, wherever by a clear and distinct act he has indicated his assent, and her name is introduced into the contract as the person having the legal interest. DEPOSIT BY HUSBAND IN WIFE'S NAME IN SAVINGS BANK, where he has a separate account in his own name, especially where he states at the time that the money is hers, and takes the bank book, crediting the deposit to her, and delivers it to his wife, inures to her sole use as against his

heirs, if she survives him, and he has done nothing to reduce it to pos cession.

LEGATEE CAN Not Take RealtY IN SATISFACTION OF LEGACY which the will provides may "be taken out of such property as she shall think proper," by her own mere election, but she may take personalty at its actual market value at that time.

WIDOW IS NOT ENTITLED TO SUPPORT FOR FORTY DAYS after her husband's death, out of his estate, under the Massachusetts statute, where she is absent from home with her husband at the time of his death, and does not at once return thither.

APPEALS from a decree of the probate court allowing the account of the administrators of Elijah Fisk, deceased. Both the administrators and the residuary legatees appealed from the decree. The objections of the residuary legatees were to the effect that the administrators had not charged themselves in their account, as allowed, with certain savings-bank deposits (the facts concerning which appear from the opinion), which it was claimed belonged to the estate, but which the widow, who was one of the administrators, insisted belonged to her, and that the administrators claimed an allowance for certain realty which they had charged to themselves at its appraised value, and had permitted the testator's widow to take in part payment of a legacy given to her by the will, which the will provides was "to be taken out of such property as she shall think proper," which claim was allowed by the probate judge. The administrators appealed from the decree on the ground that the court erred in requiring them to charge themselves with certain bank stock belonging to the estate, which the widow had also taken in part payment of said legacy, at one hundred and six dollars per share, instead of its appraised value of one hundred dollars per share, as charged in the account submitted, and that the court erred also in disallowing a charge made for the widow's support for forty days after the testator's death. As to this item, it appeared that at the time of the death the widow was absent from home attending upon her husband, and did not immediately return home. At the hearing of the appeals the jury, among other things, found specially that the value of the bank stock, at the date of its transfer to the widow, was more than the appraised value, but less than the value at which the probate judge held it should be charged. The case was reserved for the opinion of the whole court.

G. T. Davis, for the administrators.

D. Aiken, for the residuary legatees.

By Court, DEWEY, J. Various questions arise upon the appeals taken by the parties to the decree of the judge of probate, upon the allowance of the account of the administrators, with the will annexed, of the estate of Elijah Fisk, who died testate, but whose executrix, named in the will, declined acting in that capacity.

1. The leading and most important question is that which relates to the deposits in the savings banks at Greenfield and Worcester; whether the same are the property of the estate of Elijah Fisk, and as such to be administered, or whether they are the property exclusively of his widow, Experience C. Fisk.

The principles applicable to cases of this character, so far as they involve the right of a married woman to acquire property during the marriage, and the extent of the interest thus acquired by her, in reference to the rights of the husband and his heirs, have become pretty well settled. A married woman has the legal capacity to receive gifts, and may be the obligee of a bond or the payee of a promissory note, or receive a transfer of stock in moneyed corporations; and in all such cases she may hold the same to her own use, if she survives her husband.

So also she may be such payee of a note, obligee of a bond, or a depositor to whose credit money is deposited in a savings bank, when the consideration for such note, bond, or deposit certificate, may have proceeded wholly from the husband; and in such case, as regards the heirs at law of her husband, she may hold the same to her sole use, if she survives her husband. As regards the creditors of the husband, the rule is entirely different, and all such gifts proceeding from the husband are invalid as against the creditors, if they are required for the payment of debts. In many of the reported cases the consideration. for the promise to the wife, or for the investment for her benefit, was property previously belonging to the wife in her own right, or property acquired by gift from other sources than her husband; and the great question was as to the capacity of a married woman to be a party to such contracts, or bailments; it being contended on the part of those who represented the estate of the husband, that all contracts and engagements entered into by third persons with a married woman were contracts solely with the husband, and inured to the benefit of his estate, upon his decease. But the court held otherwise. In later cases it has also been held that when no rights of creditors intervened, a promise by a third person to pay her money, or other engagement for her benefit, upon a consideration moving

from the husband, was a good promise to the wife, and available for her sole use, if she survived her husband, and he had not in his life-time reduced the same to possession, and thus discharged the promise.

The leading case of Draper v. Jackson, 16 Mass. 480, is a direct authority as to the capacity of a married woman to become a party to a contract, with the assent of her husband, having for its object the securing to herself the avails of property held in her own right. This case was followed by that of Stanwood v. Stanwood, 17 Mass. 57, where an investment by the husband, for the benefit of his wife, was sustained in her behalf, as against his administrator.

It would seem that, independent of the recent statutes, which have very much extended the capacity of a married woman to take and hold property for her separate use, the effect of our decisions is such, that all contracts made with her during the marriage, to pay her money, or written acknowledgments of indebtedness to her as bailee, or otherwise, if entered into with the full assent of her husband, are contracts that survive to the wife, to her sole use, as against the heirs of the husband; and the question to be decided in each case is, whether the husband has, by proper acts, signified his purpose to that effect.

Thus, in the case of Draper v. Jackson, above cited, it was said by the court, that where the husband takes a security for a debt due from a third person, in the joint names of himself and wife (as was the case there), "he is understood to assent and intend that she shall have some peculiar benefit from it;" and the wife was accordingly allowed to hold the debt to her own use, she having survived her husband. In the case of Stanwood v. Stanwood, also, full force and effect was given to the declared purpose of the husband to hold certain property, the income of property formerly held by her, for the separate account of the wife; and although deposited in his own name, it was held sufficiently reserved for her benefit by his unqualified declaration that it was hers, and left for her sole use. In the case of Phelps v. Phelps, 20 Pick. 556, a like view of the question was taken by the court, in favor of the wife.

It is true, that in these cases the original consideration for the indebtedness, or for the stock or deposits, was from the property of the wife, either directly or remotely. But in a later case, Adams v. Brackett, 5 Met. 280, where such evidence was wanting, as to the source from which the funds were procured that were invested for the wife, and where the court assumed

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