| Mass. | Nov 15, 1870
The eleven notes, amounting in the aggregate to $28,000, were not gifts inter vivas, the gift never having been completed by delivery. Nor were they gifts causd mortis. Independently of the question whether they could be the subjects of such a gift, they were not thus given. The indorsements were written, and they were inclosed in sealed packages, Septem ber 24, 1864, and left with Mary A. Bradley. The outer envelope, which inclosed them all and was sealed, contained the written direction quoted in the statement of the case. Thus that depositor made the depositary his own agent, reserved to himself a right to call for the package, and if he were, to become non compos, or if he should die, it was to be opened in one year after such event; and the transaction was not in contemplation of that event. He died September 17, 1866. There is no ground to contend that this constituted a gift causd mortis, for it had hardly any of the elements of such a gift. The notes remained the property of the intestate till his death, and his administrator is entitled to them.
The other two notes given by him to his son, amounting to $28,000, were payable on demand, and, by Gen. Sts. c. 53, § 10, are subject to any legal defence in the hands of the holder which would be a defence against the payee. They would be subject to the administrator’s claim to set off the other notes of equal amount against them, even if they ever had any valid consideration, or if the bankruptcy of the son did not constitute a failure of consideration under the circumstances.
The plaintiff is entitled to a specific delivery of the notes, in order that he may use them in set-off against these other two notes. Sears v. Carrier, 4 Allen, 339. But the defendants contend that he has a plain, adequate and complete remedy at law, to obtain them by action of replevin; and the bill does not allege that they camiot be replevied. If the bill can be maintained, it must be upon some other ground.
One of the clauses of the Gen. Sts. e. 113, § 2, gives a remedy in equity in cases in which there are more than two parties having distinct rights or interests which cannot be justly and definitely
The plaintiff in this case, as administrator, holds the estate of Daniel Silloway in trust to pay his debts and distribute the balance among those entitled to it by law. The claims of the defendants against the estate all grew out of one transaction ; they relate to the fund in his hands; and the title to the eleven notes first mentioned depends upon a single question. In a court of law the plaintiff can deal with only one of the parties at a time, and the trust fund is exposed to destruction by the separate litigation of thirteen suits, and the administrator and those entitled to the estate are exposed to the trouble and delay of the litigation. And as to the holders of the notes, questions of law might be decided adversely to them in one of the actions at law, to which' they would not be parties, and in which they would have no right to be heard. All of them are apparently interested in some of the legal questions that may arise in respect to the whole transaction. By means of this bill, a single suit will determine the whole controversy, all parties being fully heard, and a multiplicity of actions at law will be prevented. Demurrer overruled.