Cole v. Bates

• Decision Date: 21 November 1904
• Citation: Cole v. Bates, 186 Mass. 584, 72 N. E. 333 (Mass. 1904)
• Parties: COLE v. BATES.
• Court: Supreme Judicial Court of Massachusetts

186 Mass. 584

72 N.E. 333

COLE v. BATES.

Supreme Judicial Court of Massachusetts, Hampden.

November 21, 1904

COUNSEL

John

B O'Donnell, for plaintiff.

A. J Fargo, for defendant.

OPINION

LORING J.

This is an action of money had and received to recover the amount of a savings bank deposit.The case was tried by the court without a jury.The judge found that the money deposited was the money of the plaintiff's intestate.The plaintiff's intestate was the second wife of Austin T. Hancock, and the defendant was his daughter by a first wife.Austin died December 16, 1891, leaving, by his last will and testament, the residue of his property to the defendant, subject to a life interest in his wife.On January 6, 1892, the second wife died.On February 2, 1892, the defendant's husband was appointed administrator with the will annexed of the estate of the husband and father, and on February 6, 1892, he took possession of the bankbook, drew out the money, and deposited it in his own name as administrator of the estate of Austin, the husband and father.On February 9, 1892, the plaintiff was appointed administratrix of the estate of the second wife, and on the same day demanded the bankbook of the defendant and of her husband, to which demand the husband answered in the defendant's presence that he had been advised that the book was the property of the estate of the husband and father, and refused to pay the money to the plaintiff.This action was brought on October 20, 1894.It was originally brought against the husband as well as the wife.After the trial the action was discontinued against the husband on the motion of the plaintiff allowed by the court.

The judge found that the husband's account as administrator was at all times more than $317.69, and that the sum paid to the defendant as the residue of her father's estate by her husband as administrator with the will annexed of said estate amounted to $1,019.99, and was paid over as follows: $354.07 on or before January 17, 1893; $665.92 on or before March 3, 1894.In addition he made this finding: The defendant'did not attend court, being ill, at the trial, and there is no positive evidence as to her knowledge of the facts about the book, but demand was made on both her and her husband, Clarence, for the book by the plaintiff, February 9, 1892, and there is no evidence that at the time of such demand any payments from the estate of Austin T. Hancock had been made to her.'Also, 'She never received the identical money which was paid by the bank when the deposit was withdrawn.'It appeared that on the page or cover in the front of the deposit book were these words: 'Mrs. A. T. Hancock.Northampton Institution for Savings, No. 3609,' and on the fifth page the following: 'No. 3609, Northampton Institution for Savings, in account with Mrs. A. T. Hancock.Order also Austin T. Hancock.'Upon these facts the judge ruled as matter of law that the plaintiff could not recover, and reported the case to this court.

For the purposes of this casewe 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 defendant has received money to which the plaintiff has an equitable right.Knowles v. Sullivan,182 Mass. 318, 65 N.E. 389;Henchey v. Henchey,167 Mass. 77, 44 N.E. 1075;Derome v. Vose,140 Mass. 575, 5 N.E. 478;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 effect), that where the plaintiff can trace his money in equity into the hands of the defendanthe may recover it from his in an action of money had and received, as well as when the money was received in the first instance by the defendant.Further, in the case at barthe 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 money.She has shown that it went into the bank account of the administrator, and that there was always more to the credit of that account than the sum in question.In such a case the sums drawn are held to have been rightly drawn and are applied against deposits made from the proper funds of the depositor.In re Hallett,13 Ch. D. 696;Hancock v. Smith,41 Ch. D. 456.See, also, Knight v. Fisher (C. C.)58 F. 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 opinion that the money...