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ation by discharging the original debtor, and are also participants in the promise. These cases are plain enough on the familiar doctrine of novation.1

3. The third, and by far the most numerous class, is where a debtor places money, or its equivalent, in the hands of a third person, upon his promise to pay the creditor; the creditor in such cases can recover the amount of such third person. This is familiar law everywhere.2 But such recovery is usually by an action for money had and received to the plaintiff's use, — an equitable action, sustainable, not because the defendant promised to pay to the plaintiff, but equally sustainable although he actually makes no such promise,3 on the familiar ground that, wherever one has money in his hand which in equity and good conscience belongs to another, the latter may recover it in assumpsit for money had and received. This is so, even if the defendant refuses to pay it over on demand.1

That the action in such cases is not based upon the defendant's express promise to pay the plaintiff is apparent from the fact that if the defendant, for one and the same consideration, also promises to do some other thing for the plaintiff besides paying the debt, the plaintiff could not enforce such special promise in other respects. So also, if another person who does not himself receive the money, or other property, gives his guaranty to the debtor that the actual receiver shall deliver the money or pay the debt promptly, the creditor cannot maintain an action against such guarantor for failure to perform the promise. The fact also that the creditor can recover only the amount so placed in the defendant's hands, and not necessarily his whole debt, although the defendant promised to pay the whole, shows that the action is not founded upon the special promise, but only upon the fact of assets received.

Many of the cases cited in support of the general right of a mere

'Tatlock v. Harris, 3 T. R. 180; Heaton v. Angier, 7 N. H. 397; Wilson v. Cope land, 5 B. & C. 228.

2 Lilly v. Hays, 5 Ad. & El. 548; 1 N. & P. 26 (1836); Crampton v. Ballard, 10 V 251 (1838); Arnold v. Lyman, 17 Mass. 400 (1821); 9 M. &. W. 411; Carnegiev, Mort · son, 2 Met. 402(1841); Phelps v. Conant, 30 Vt. 277(1858); Bank of Missouri v. Benoist, 10 Mo. 327 (1847); Putnam v. Field, 103 Mass. 556 (1870); Torrens v. Campbell, 76 Pa. St. 470 (1873); Barber v. Bucklin, 2 Denio, 45 (1846); Delaware & Hudson Canal Co. v. Westchester Co. Bank, 4 Denio, 97 (1847); Beers v. Robinson, 9 Pa. St. 29 (1848); Vincent v. Watson, 18 Pa. St. 96 (1851).

8 Hall v. Marston, 17 Mass. 575.

Frost v. Gage, 1 Allen, 262 (1861).

See Campbell . Lacock, 40 Pa. St. 448.

beneficiary to bring an action fall under one or the other of these three heads; some others are explainable on other grounds, while, on the other hand, a few are quite in conflict with the views herein. expressed, and the authorities cited above.

One other consideration bearing upon this question. All agree that on sealed instruments and promissory notes a person not the payee cannot recover merely because it is expressed to be "for the benefit" of such person. But why any difference, so far as the right of action is concerned, between a promise under seal and one not? If the promisee is as distinctly and specifically named in the one case as in the other, is there any substantial reason for applying a different rule?

In view of the authorities upon this subject, can it be safely said, as it sometimes is, that at common law, "whenever one makes a promise to another for the benefit of a third person, the latter may maintain an action at law upon such promise "?

B STON, Nov. 1, 1895.

Edmund H. Bennett.





STATE Court of reputation has lately decided an important question of common law contrary to every previous case. The question has come up repeatedly in the English courts as well as in the courts of many of the United States, and has always been answered the other way. Yet the decision referred to is no careless or ignorant expression of opinion. It is a well considered judgment, written with full appreciation of the unbroken authority against it.

The case is Edgerly v. Barker, decided by the Supreme Court of New Hampshire in an opinion written by Chief Justice Doe, and to be published in the 66th volume of the New Hampshire Reports, pp. 434-475, with advanced sheets of which I have been favored. Such a decision is an unusual occurrence and deserves examination. The case was this. Hiram Barker, a resident of New Hampshire, died, leaving a will and codicils which were duly proved. After sundry legacies, he gave the residue of his estate, real and personal, which was about $600,000, to trustees in trust to pay his daughter Clara $2,000 a year, and more if necessary for her comfortable support; to pay $1,000 a year, or more in the discretion of the trustees, to his son, Hiram H. Barker, for the support of himself and his family, if from his habits and mode of life he should prove himself safe and competent to have the use and expenditure of the money; if not, then the trustees to have the expenditure of the money for the same purpose; to furnish means for the education of all the son's children, including those born after the testator's death; if the son should "become and remain temperate, sober, and correct in his habits" for five years together, $5,000 to be paid to him, and at the end of ten years and of fifteen years further sums if he should remain "perfectly temperate and of good and regular habits"; and to pay to his son's wife, should she survive him, $500 a year or more at the trustees' discretion.

It pro

Then came the clause under which the question arose. vided that the trustees should pay to each of said children of the

testator's son, when said child should reach twenty-one, and to each child of his said daughter, if she should have any, the sum of from $3,000 to $5,000, if such child should be temperate and of good capacity to manage the money, and from time to time thereafter, as the wants and necessities of the children should require, the trustees should pay out such further sums as might be necessary; and "when the youngest of said children shall arrive at the age of forty years, then all my estate shall be theirs, to have and to hold the same to them and their heirs, those of them of good and regular habits and of capacity to do business and manage property, to take care of and manage, as trustees, the portion or portions thereof belonging to those, if any, who are not then possessed of such habits and capacity; but before said property shall vest in and be theirs, proper, suitable, and sufficient bonds or other security must be given by them for the payment of said sum or sums to my said daughter, if living, so long as she shall live, to my said son's widow if she shall then be living, so long as she lives and remains his widow, and also for the good and sufficient support of my said son so long as he shall live."

The executors of the will brought a bill of interpleader against the testator's son and daughter, and against the trustees. The counsel for the trustees contended that the gift of the residue to the grandchildren was good; the son's counsel, that it was bad. There were of course four questions:

First. To whom was the residue given ?
Second. Was the gift vested or contingent?

Third. If contingent, was it too remote?

Fourth. If too remote, what was the consequence?

The first two questions are questions of construction. The Chief Justice begins his opinion thus: "The construction of the will, including the question whether the testator intended the remainder, which he devised to his grandchildren, should vest in them before they became entitled to a distribution of it, is determined as a question of fact by competent evidence, and not by rules of law." This mode of expression is peculiar to the learned Court. Whether correct or not, it is unnecessary for the matter in hand to consider.

First. The first question the Chief Justice answers by saying that the residue is given to living grandchildren and the issue per stirpes of deceased grandchildren. This is a highly novel construction, but it is purely a matter of interpretation, and I do not dwell upon it.

Second. The Court assumes that the gift to the grandchildren is contingent. By including the issue of deceased grandchildren in the class of residuary legatees the Court does away with one of the chief arguments for calling the gift vested. Yet there is another circumstance that points strongly towards vesting, and that is the power given the trustees to make payments to the testator's grandchildren before the final distribution. This power might be, and probably would be, exercised to a very different extent with different grandchildren, and yet, if the final gift be contingent, no account can be taken of this.

I have no desire to criticise the conclusion, or rather the assumption of the Court, that the gift is contingent. On the contrary, if I may take the liberty of saying so, it seems to me correct. The only gift to the grandchildren is the gift to pay when the youngest reaches forty; this makes the gift prima facie contingent; and the circumstances fortifying this conclusion seem to be greater than those against it. Yet it should be borne in mind that the testator (as is not unfrequently the case) had wishes which are really inconsistent, and that his wishes that the interests should vest fail of effect only because more and weightier indications of intention are inconsistent with their vesting. I want to insist upon this, because, as I think will be apparent to the learned reader, the circumstances making in favor of the vesting of this gift rendered it easier for the Court to introduce its new theory into the law than it would have been in the case of an unquestionably contingent gift.

Third. The gift to the grandchildren then being contingent, is it too remote? Of this there can be no doubt. The gift is to them at forty, which is obviously beyond the period allowed by law.

Fourth. What then is the result? The answer which has always hitherto been made in like cases is, that the gift is void, and there is an intestacy. The Supreme Court of New Hampshire now says that the fund is to be distributed to the grandchildren when they reach twenty-one.

Until this case of Edgerly v. Barker the law, as held in every other jurisdiction where the common law prevails and the question has come up, is this. If a gift is made to a person or class as filling a particular character at a time which may be too remote, the court will not substitute therefor a gift to the person or class filling the character at a time within the limits. Thus, for a gift to such of the testator's grandchildren as reach twenty-five the court

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