Contract, Implied: common counts. In this Commonwealth it is settled that money had and received will lie where the defendant has received money to which the plaintiff has an equitable right, and in this case it was assumed, without deciding it, that, where the plaintiff in equity can trace his money into the hands of the defendant, he can recover it from him in an action for money had and received as well as where the defendant received the money in the first instance.
If an action for money had and received can be maintained to recover money which in equity can be traced to the hands of the defendant, the recovery must be confined to cases where money is received for the plaintiff by some one standing toward him in a fiduciary capacity.
If the executor under the will of a deceased husband draws out a savings bank deposit belonging to the widow of his testator, claiming it as part of the estate, and pays it to the residuary legatee, the payment by the bank to the executor is wrongful, and the money paid is not the money of the widow, having been paid upon a demand adverse to her. Therefore neither the widow, nor the administrator of her estate, can follow the money in equity or maintain an action for money had and received for it against the residuary legatee under the will of the husband.
LORING, J.
[After the above statement of the case.] For the purposes of this case 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 defendant has received money to which the plaintiff has an equitable 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 effect) 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 and received as well as when the money was received in the first instance by the defendant.
Further, in the 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 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 taken to have been rightly drawn and are applied against deposits made from the proper funds of the depositor. In re Hallett'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 opinion 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) could claim the deposit was this: The money deposited was 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 the other hand, if the administrator claimed to be paid on the ground that the money deposited was the money of the wife, the order for payment to the husband was an order for payment to him for her benefit and was an order personal to the 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 adverse to her and to the administrator of her estate. The money in the defendant's hands was not the plaintiff's money, and she could not follow it in equity.
It cannot be said that in collecting the $317.69 and ultimately paying it over to her, the administrator was an agent and the defendant the principal, 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 the 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 defendant 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.