Cole v. BatesCole v. Bates
- Reporters:
- , ,
- Before:
- Loring
[Aftеr the above statement of the case.] For the purposes of this easе we assume that under the finding made by the judge the defendant is to be taken to have known that the amount paid ‘to her as the residue of the estate was larger by the amount of $317.69 because that sum had been collected by the administrator and put into her father’s estate.
It is settled in this Commonwealth that money had and received will lie where the defendaht has received money to which the plaintiff has an equitаble right. Knowles v. Sullivan, 182 Mass. 318. Henchey v. Henchey, 167 Mass. 77. Derome v. Vose, 140 Mass. 575. Farrelly v. Ladd, 10 Allen, 127. Peabody v. Tarbell, 2 Cush. 226. And we assume for the purpose of this discussion (without making a decision to that еffect) that where the plaintiff can trace his money in equity into the hands of the defendant he may recover it from him in an action of money had *587and receivеd as well as when the money was received in the first instance by the defendant.
Further, in thе case at bar the plaintiff has traced her money into the defendant’s hands, if the money in the hands of the administrator was her money within the rule in equity as to tracing monеy. She has shown that it went into the bank account of the administi’ator and that there wаs always more, to the credit of that account than the sum in question. In such a case the sums drawn are taken to have been rightly drawn and are applied against deposits made from the proper funds of the depositor. In re Hallet‘s estate, 13 Ch. D. 696. Hancock v. Smith, 41 Ch. D. 456. See also Knight v. Fisher, 58 Fed. Rep. 991, cited by the plaintiff. Moreover in the case at bar it must be taken that the whole amount of the account was finally paid to the defendant.
But we are of opiniоn that the money received by the administrator with the will annexed of the estate of the husband and father was not the plaintiff’s money in his hands within the rule that allows her to follow her money in equity. That rule is confined to money received for the plaintiff by some one standing toward her in a fiduciary capacity. In re Hallett’s estate, 13 Ch. D. 696.
In the case at bar the only ground on which the defendant’s husband (as administrator with the will annexed of his wife’s father) cоuld claim the deposit was this: The money deposited v;as the money of the husband although deposited in the name of the wife; it had been made payable to the husband in fulfilment of the obligation ensuing from these facts; this order for payment had been accepted by the savings bank by changing the terms of the deposit; this gave a right to the husband to collect the deposit, and this right survived to his administrator with the will annexed. On thе other hand, if the administrator claimed to be paid on the ground that the money dеposited was the money of the wife, the order for payment to the husband was аn order for payment to him for her benefit and was an order personal to thе husband which did not authorize payment to his administrator. In either event the payment by the bank was not a valid payment. The money received by the administrator was not received as the money of the wife but under a claim *588adverse to her and to thе administrator of her estate. The money in the defendant’s hands was not the plaintiff’s mоney, and she could not follow it in equity.
It cannot be said that in collecting the $817.69 and ultimately paying it over to her, the administrator was an agent and the defendant the рrincipal, although she was the only person interested in the estate if it turned out to be solvent, and although she was present when the demand for the savings bank book was made both upon her and her husband in her presence. An administrator acts for the benefit of whomsoever turns out to be the person beneficially entitled, and thе defendant’s husband in the case at bar must be taken so to have acted here in claiming what he was advised was a part of the estate.
None of the cases particularly relied on by the plaintiff supports her contention. In Bearce v. Fahrnow, 109 Mich. 315, the defеndant received the money from the agent of the plaintiff with notice that it was his money. The decision in Northrop v. Graves, 19 Conn, 548, went on the ground that the payment was in legal contemplation a payment to the husband. In Barnes v. Johnson, 84 Ill. 95, the money due to the plaintiff was collected by the defendant, and in Tevis v. Brown, 3 J. J. Marsh. 175, there was a subsequent agreement that the money tortiously taken should be treated as a loan.
For cases somewhat like the case at bar, see Moore v. Moore, 127 Mass. 22, and Rand v. Smallidge, 130 Mass. 337.
The entry must be
Judgment for the defendant.