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Greene v. Godfrey, 44 Me. 25; Shuman v. Shuman, 27 Pa. St. 90; Chestnut v. Harbaugh, 78 Pa. St. 473; Ellis v. Hammond, 57 Ga. 179; Meader v. White, 66 Me. 90.

DEVENS, J. This is a bill in equity, brought by the widow of Joseph Cummings against Clara A. Smith and Joseph H. Cummings, both of whom are children of Joseph Cummings by a marriage previous to that with the plaintiff. The defendant Joseph H. Cummings is also the executor of his father's will. By this bill the plaintiff seeks to recover certain shares of bank stock, or the value thereof, bequeathed to Mary A. Wixon, a daughter of Joseph Cummings, and of the plaintiff, which shares have been transferred to Wixon by the defendant Joseph H. Cummings, as executor; the plaintiff claiming that the same were her sole property. By the bill the plaintiff also seeks to recover the share which she claims to be entitled to, as widow, in certain other personal property alleged to be a part of the estate of Joseph Cummings, now in the possession of the defendants, or of one of them.

While the plaintiff was provided for by her husband's will, she has waived this provision. Different considerations apply to these two classes of claims. With the bank stock the defendant Clara A. Smith is not shown to have had any connection. It consisted of the shares in the Chelsea National Bank, which were by the will bequeathed to Mary A. Wixon, and were afterwards transferred by Joseph H. Cummings, as executor, to Wixon.

The plaintiff was married to Joseph Cummings in 1852. There was no antenuptial contract in regard to her property. She had several thousand dollars in money, and in 1856 bought 10 shares in the Tradesmen's Bank of Chelsea. The certificate was taken in the name of Joseph Cummings, but was kept by her, and in 1859 he gave her a paper by which he stated that the certificate was purchased with her money, and promised to transfer it “to her heirs and executors." In 1864 the bank became the First National Bank of Chelsea, and on November 3, 1879, upon his written statement that the old certificate in the Tradesmen's Bank was lost or stolen, Joseph Cummings received from the Chelsea National Bank the certificate the value of which is here in controversy; he giving a bond of indemnity against any claim on the old certificate. The old certificate was retained by the plaintiff, who does not appear to have known that the new certificate was issued until after the death of her husband. The dividends on these stocks were for a time collected for Mrs. Cummings by one Young, her brother-in-law, who had originally bought the stock with her money. Subsequently they were collected by Joseph Cummings, and used by him for his own purposes. In these latter dividends the plaintiff never claimed, and does not claim, any interest. By the bank, Joseph Cummings was always treated as the owner of the stock.

By the common law, which was the law of the commonwealth when the right of the plaintiff and her husband in regard to her property were fixed by her marriage, the husband had the right to make the wife's choses in action his own by reducing the same to possession, and her money became absolutely his own. Ames v. Chew, 5 Metc. 320; Dunn v. Sargent, 101 Mass. 336–339. He held the absolute legal title to these shares, and the only question that can be suggested is whether he elected to bold them by virtue of his right as husband, and did such acts as to manifest and fix that election. The subsequent legislation, which, since 1852, has so much changed the rights of married women in regard to property, has no effect upon the case at bar. It does not assume to take away any rights already vested in the husband. No reduction to possession by the husband was necessary when the certificate was originally given in his name, and he was accepted by the bank as the owner of the stock. It is true that the original certificate remained in the possession of the wife, but the control he exercised over the stock was absolute, and, under these circumstances, her possession of the original certificate must be treated as his. No stronger act could certainly have been done by the husband in assertion of his right in the stock than his taking the second certificate in the new bank in his own name, which latter certificate never passed into the hands of the wife. When this certificate was obtained, it is probable, as he stated, that the original certificate had been lost or stolen; that he was ignorant or had forgotten that his wife had it; but, if he knew that she had it, this fact, together with the fact that he indemnified the bank against it, only more strongly show his intention to reduce the shares to his own possession.

It would not be easy to conceive any stronger assertion of right over the property by the husband than holding the stock by a certificate in his own name, conducting himself as the owner in his relation with the bank, receiving the income, using it for his own purposes, without objection from the wife, and, finally, his disposition of the shares by will. Dunn v. Sargent, ubi supra.

Nor can this claim be enforced upon the ground that he held this property in trust for the wife, by reason of the writing given her in 1859. In this paper he acknowledges that the shares were purchased with her money, and agrees to transfer them to her heirs and executors. This paper executed after this property vested in him cannot make him a trustee for the plaintiff. There was no consideration for it, as he had already reduced her property to possession. Even if it were enforceable as a trust, it was not one for the benefit of the plaintiff, personally, and the testator has by his will transferred the shares to her only child.

The second class of claims sought by the plaintiff to be recovered stand upon different grounds. By this bill the plaintiff seeks to recover her share of certain property which she claims should be held to be the property of the testator. Certain property was transferred, before his decease, by Joseph Cummings to his children, the two defendants Smith and Cummings; receiving in return an authority to draw the dividends thereon during his life, Joseph Cummings was of sound mind, and is found not to have been unduly influenced in this transaction. His object in giving this property to his chil.. dren by his former marriage was that his wife should not receive her distributive share as his widow, as he believed her sufficiently provided for; and also that her daughter (who was also the daughter of Cummings) would inherit or receive by will from her mother, finally, as much or more than he gave to his other children.

In addition, the plaintiff makes a further claim that a note given by Joseph H. Cummings to his father, Joseph, which note was afterwards destroyed, should be accounted for and paid, and seeks her proportion thereof as widow. We have no jurisdiction of these claims, as thus presented. They are within the jurisdiction of the probate court only. It is for that court, in the first instance, to determine for what the executor shall account, and, if there are others who should account to the estate, to determine whether the executor has failed in duty in neglecting to compel them to do so, and, in a proper case, to grant leave to sue the executor's bond. Nor could any one interested in the estate of a deceased person, even if it were clear that there was an amount of property which should be accounted for, being an action for her share thereof against the executor, except after a decree of distribution.

As no other objection was taken to the form of the bill, on account of parties or otherwise, none has been considered.

The result is, bill dismissed.

(143 Mass. 337)

LYNDE V. BROWN and others. (Supreme Judicial Court of Massachusetts. Middlesex. January 8, 1887.) TAXATION-ASSESSMENT-RECORD OWNER,DOWER-AGENT FOR HEIR–Pub. St. Mass. Ch.

11. 2 13.

Under Pub. St. Mass. c. 11, $ 13, providing that, "for the purpose of assessing and collecting taxes, the persons appearing of record as owners of real estate shall be held to be the true owners thereof. Taxes on real estate shall be assessed in the city or town where the estate lies, to the person who is either the owner or in possession thereof on the first day of May," -an assessment to one who has a right to have dower assigned to her out of an estate, and who, as agent for an infant heir, has, by a parol lease, leased the premises to a tenant who is in actual possession, is not legal. Writ of entry to recover land situated in Wakefield. The demandant claimed title under three deeds dated, respectively, July 2, 1883, August 2, 1884, and June 3, 1885, made, executed, and delivered to the demandant by the tax collector of said Wakefield; the taxes for each year having been assessed to Margaret Brown, of Boston, one of the defendants, and in each deed she was described as the non-resident owner. The superior court, after a hearing on the agreed facts, ordered judgment for the defendant, and the plaintiff appealed. Other material facts are stated in the opinion.

W. P. Harding, for plaintiff.

The legality of the assessment of the tax upon the estate for the year 1881 depends upon the true construction of Pub. St. c. 11, § 13. Did the defendant Margaret Brown have such a status, in reference to said estate, as to bring her within the purview and meaning of the statute authorizing or justifying the assessors to assess the estate to her name? It does not appear that either the daughter or her infant, the grandson, was ever in actual occupancy or possession of the estate, or that they, or their legal representatives, ever objected to Margaret's possession or occupancy, or to her receiving the rents from the tenant and defendant Foley, or that they ever paid the taxes assessed since the death of Patrick Gillespie, or notified the assessors to assess to the heir. But it does appear that the widow, Margaret, had a right of dower in the entire estate; that the daughter, the only heir, permitted her mother to have the management, possession, and control of the estate after her father's death. It is submitted, therefore, that, (1) though the legal title stands in the name of another, it is a valid assessment, if assessed to one in actual possession, (Oakham v. Hall, 112 Mass. 538; Desmond v. Babbitt, 117 Mass. 234;) (2) a tax assessed to an agent who was in actual occupation is valid, (Wells v. Battelle, 11 Mass. 477.)

Wm. Schofield, for defendants.

Taxes on real estate must be assessed to the owner, or person in possession, on the first day of May. Pub. St. c. 11, § 13; Desmond v. Babbitt, 117 Mass. 233; Kearns v. Cunniff, 138 Mass. 434. The defendant Margaret Brown was not the person in possession. At the time of the assessments, under which the several sales were made, the demanded premises were occupied by Foley, who was a tenant at will, and therefore had possession. Dickinson v. Goodspeed, 8 Cush. 119; Hilbourn v. Fogg, 99 Mass. 11; Cunningham v. Horton, 57 Me. 420. Neither was Margaret Brown the owner. Upon the death of Patrick Gillespie, in 1864, the inheritance descended to the heirs at law, and the rights of the widow are to be determined by the laws in force at that time. Gen. St. c. 90, § 1; Id. & 15. By law Margaret Brown had only a right of dower; and dower is not an interest in lands until it is assigned. Sheafe v. O'Neil, 9 Mass. 13; Foster v. Gorton, 5 Pick. 185; Croade v. Ingraham, 13 Pick. 33; Sears v. Sears, 121 Mass. 267, 268; Mason v. Mason, 140 Mass. 63; S. C. 3 N. E. Rep. 19; 2 Scrib. Dower, (2d Ed.) 42–44, et seq. Margaret Brown has not become owner by disseizin, for there has been no ouster, and no adverse possession. Being administratrix of her hus

band, she leased the property as agent of the heir at law, and has accounted for the rents and profits. Gen. St. c. 98, § 8; Pub. St. c. 144, § 5; Brooks v. Jackson, 125 Mass. 307; Choate v. Arrington, 116 Mass. 552; Almy v. Crapo, 100 Mass. 218. See, also, Silva v. Wimpenney, 136 Mass. 253.

W. ALLEN, J. Pub. St. c. 11, § 13, provides that, “for the purpose of assessing and collecting taxes, the persons appearing of record as owners of real estate shall be held to be the true owners thereof. Taxes on real estate shall be assessed in the city or town where the estate lies, to the person who is either the owner, or in possession thereof, on the first day of May." Sec , tions 18 and 19 provide for assessing the undivided estate of a deceased person in certain cases, but these provisions were not acted on, and are immaterial, except as showing that a simple and easy mode of making a correct assessment was provided.

The only interest or right in the land which Mrs. Brown had, was a right to have dower assigned to her out of it. It is not contended that the taxes could be assessed to her as the owner of the real estate, but it is not contended that she was in possession of it, within the meaning of the statute. She let the estate by a parol lease to the defendant Foley after the death of her husband, in 1864, and Foley occupied as her tenant at the times when the taxes in question were assessed, paying rent to her. Foley was in possession and could have maintained an action on that possession against Mrs. Brown. It is argued that, at the times of the assessments of the taxes to her, she was acting in behalf of her infant grandchild, who was the owner, and was in possession of the estate, managing and letting it for him as his agent. But the case finds that she was not resident in the town, and did not occupy the estate, and that it was in the possession of Foley as tenant. The statute means the actual possession which a tenant occupying the premises has, as distinct from the constructive possession which an owner may have; and, if the tenant is in possession, it is immaterial whether he holds under the owner, or the agent of the owner, or a stranger.

Judgment for the defendant. (143 Mass. 379)

ULSCH 0. MULLER. (Supreme Judicial Court of Massachusetts. Essex. January 10, 1887.) PROMISSORY NOTE-PLEADING-EVIDENCE-PAYMENT IN MERCHANDISE.

In a suit on a note, the delivery and acceptance of merchandise, under an agreement that it should be applied in payment of the note, cannot be shown under a plea of payment, but must be set forth in the answer. This was an action of contract upon a promissory note for $100. At the trial in the superior court, before ALDRICH, J., the defendant offered to prove in addition to certain cash payments upon the note declared on that he had delivered to the plaintiff a certain number of cords of wood, which, at the time of delivery and afterwards, the plaintiff agreed should be received, and the price thereof stand as payments upon said note, to the amount of the price of said wood, and that the price had been agreed upon. The plaintiff objected to this evidence under the pleadings, and the objection was sustained. The court found for the plaintiff, making no deduction for the price of said wood, and the defendant alleged exceptions.

W. S. Knox, for defendant.

The "substantive fact” which the defendant relied upon was the payment of a large part of the promissory note which was the plaintiff's cause of action. This was properly set up in the answer. Under it the defendant was entitled to prove payment in any manner. The offer of proof that the defendant had paid a portion of the note, in wood delivered to the plaintiff at an agreed price, which price it had been agreed should be indorsed upon the note, was evidence

of the “substantive fact” of payment. The fact being set up in the answer, the defendant was not bound to set up the evidence to prove it. Willard v. Williams, 7 Gray, 184; Woodbury v. Jones, 3 Gray, 261; Wolcott v. Smith, 15 Gray, 537; Goodsell v. Trumbull, 135 Mass. 99. The case of Wheaton v. Nelson, 11 Gray, 15, is not in opposition to this position of the defendant. In that case there was no allegation of payment generally, or part payment, but the delivery of certain specified goods in payment.

W. F. Gile, for plaintiff.

FIELD, J. The delivery and acceptance of wood, under an agreement that the price of the wood shall be taken as the payment of money due upon a promissory note, is not, in the technical language of pleading, payment of the note. Originally, payment was the performance of the promise to pay money, at the time, and in the manner required by the terms of the contract; but it has been extended to include the delivery of money in satisfaction of a debt, after a default has been made in the payment according to the terms of the contract. If wood is delivered and received as a payment of money due on a note, it is only by virtue of a subsequent and independent agreement to that effect, and there is an accord and satisfaction; and the agreement by which the acceptance operates as a satisfaction of the contract, and the delivery and receipt of the wood by the plaintiff under this agreement, are substantial facts which should be set forth in the answer. Grinnell v. Spink, 128 Mass. 25; 1 Chit. Pl. (14th Amer. Ed.) [478,] [740.] See Wheaton v. Nelson, 11 Gray, 15.

Exceptions overruled.

(143 Mass. 344)

AMES and others v. BROOKS and another. (Supreme Judicial Court of Massachusetts. Suffolk. January 8, 1887.) CONTRACT-TIME OF THE ESSENCE-WAIVER..

In a contract between the holders of promissory notes, amounting to $5,500, and an accommodation indorser on them, whereby it is agreed that the indorser shall not be sued if he pay $5,000 by a certain day, certain collaterals securing the notes to be held in the mean time by a trustee, who, on the default of the indorser, is to pay the interest of the collaterals to the holders of the notes, and to hold the surplus for the indorser, time is of the essence of the contract, and in an action, after breach by the indorser, to recover the balance due on the notes after payment of such interest, parol evidence is not admissible to show that tinje was not of the essence, nor is the failure of the holders to demand payment of the indorser after breach a waiver of their rights under the contract. Bill in equity for an accounting and to enforce the performance of a trust created by a certain written instrument, made between Frederick L. Ames, Sarah L. Ames, Helen A. Ames, and Cyrus Lothrop, executors of the will of Oliver Ames, and one Thomas Clark. Among other things in the said agreement, the plaintiffs agreed with the defendant Clark, his executors, etc., that if he or they should pay to the plaintiffs, on or before June 23, 1879, the sum of $5,000, with interest thereon from the date of said agreement, they (the plaintiffs) would not sue, arrest, or molest said Clark or his heirs, executors, etc., or any of them, upon or by virtue or on account of either of the promissory notes signed by the Clark Woolen Co., and held by the executors, one for $2,500, and the other for $3,000, on account of said Clark's indorsement of said notes. Other provisions contained in said agreement are stated in the opinion. At the hearing in the supreme court, before HOLMES, J., the defendants offered to show that, although the time for the payment of the said sum was fixed in said agreement as “on or before June 23, 1879,” it was not the understanding or intention of the parties that the time should be strictly observed by said Clark, in order that he should be entitled to the benefits of the contract, and, among other things, offered to show that, at the time when the

V.IN.E.no.8447

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