Wilson a transfer of said deposit, without consideration; and that on August 26, 1879, before his appointment as administrator, he withdrew from the savings bank a portion of such deposit,-about $800; that he did not include this sum in his inventory as administrator, and never in any way accounted for the same; that in withdrawing a portion of such deposit he became an executor de son tort; and he asks that the defendant, as executrix of such administrator, may be compelled to pay the amount so withdrawn, with interest, to him as administrator de bonis non. The respondent both demurred and answered to the bill, and the case is here upon report of the pleadings and testimony. The defendant contends that the bill cannot be sustained, either upon its allegations or upon the testimony.

It is very clear that if this sum of money had been received by William Hodge in his capacity as administrator, and had been either administered or converted to his own use, neither an action at law nor a bill in equity could be maintained by the administrator de bonis non against him or his estate. As indicated by his title and commission, there vests in him, as administrator de bonis non, only the unadministered property of the intestate; that is, the goods, effects, and credits which were of the intestate at the time of her decease, and which remained in specie, unaltered or unconverted by any act of the administrator, or the proceeds thereof which have not been commingled with the administrator's own money. American Boards' Appeal, 27 Conn. 344.

"But at common law the authority of the administrator de bonis non does not extend to any property which has been administered, either fully or partially. *** It follows from these principles that the administrator de bonis non can sustain no action at law against his predecessor for anything save unadministered effects existing in specie." Woerner, Adm'n pp. 744, 745.

In Beall v. New Mexico, 16 Wall. 535, it is said: "To the administrator de bonis non is committed only the administration of the goods, chattels, and credits of the deceased which have not been administered. He is entitled to all the goods and personal estate which remain in specie. Money received by the former executor or administrator, in his character as such, and kept by itself, will be so regarded; but, if mixed with the administrator's own money, it is considered as converted, or, technically speaking, administered."

The administrator de bonis non is entitled only to such goods or chattels of the testator as remained in specie in the hands of the executor at the time of his death, or to such money as belonged to the testator's estate, and had been kept by the executor separate and unmixed with his own. Potts v. Smith, 3 Rawle, 361. And see the very full notes to this case in 24 Am. Dec. 379.

This doctrine was fully and unequivocally sustained by this court in the case of Waterman v. Dockray, 78 Me. 141, 3 Atl. 49.

But the persons legally interested are not without ample remedy in such a case. An omission by an administrator to include in his inventory any assets of the estate known to him, is a breach of his official bond. Bourne v. Stevenson, 58 Me. 499. Or an administrator could be charged with any money belonging to the estate that was received by him in the settlement of his administrator's account; and a failure to present and settle an account, after being cited to do so, would also be a breach of his bond, for which he and his sureties would be liable.

Nor do we think that an administrator de bonis non can maintain an action against the estate of his predecessor for money wrongfully received by him, prior to his appointment as administrator, in the absence of allegation and proof that such money is distinguishable as a part of the intestate's property. If this money withdrawn from the savings bank was, in fact, the property of the intestate at the time of her death, her husband, by receiving it, became a debtor to the estate, and his subsequent appointment and qualification as administrator converted this indebtedness into cash assets in his hands, which, if the allegations of the bill are true, should have been included in his inventory, and accounted for as administrator. For a failure to do this, he and his sureties were liable upon the official bond.

That a debt due from a person to a testator or intestate becomes, by the debtor's appointment as executor or administrator, assets in his hands, was decided in Massachusetts in the case of Stevens v. Gaylord, 11 Mass. 256; and the doctrine of this case has been universally followed by every subsequent decision upon the question in that state. Winship v. Bass, 12 Mass. 198; Hobart v. Stone. 10 Pick. 215; Manufacturing Co. v. Story, 5 Metc. (Mass.) 310; Sigourney v. Wetherell, 6 Metc. (Mass.) 553; Chapin v. Waters, 110 Mass. 195; Choate v. Arrington, 116 Mass. 552; Tarbell v. Jewett, 129 Mass. 457.

"It is now well settled, whatever may have formerly been the rule of law, that a testator, by making his debtor executor, does not give him the debt, by way of legacy, nor release or discharge it. In this respect he now stands on the same footing with an administrator. But, as an executor or administrator cannot demand or receive payment of himself, and cannot sue himself, and yet is bound to account for his own debt, that debt must be considered as assets. Where the same hand is to pay and receive money, the law presumes, as against the debtor himself, that he has done that which he was legally bound to do, and charges him with the amount as a debt paid. * * It is sufficient for the present case that the administrator is bound to account for his own debt as a debt paid, and as assets, without other acts or ceremony. The administrator's own

In Stevens v. Gaylord, supra, it was said: "The case might have been very different if the defendant had denied that he owed this debt, and had refused to insert it in his inventory, and to account for it as the property of the deceased." And in some other of the Massachusetts cases above cited the rule as laid down contains the qualification, "when the debt is acknowledged," although we are aware of no case in which this has been decided to be the law; and we think, upon principle and authority, that there is no difference in the rule whether the debt is acknowledged or denied.

In Winship v. Bass, supra, the indebtedness was not acknowledged. The executor refused to treat his indebtedness to the estate as assets, claiming that it was extinguished by his appointment. The court held that the debt was not extinguished, but must be treated as assets; and that, as his sureties were liable upon his bond, he need not be removed.

In Sigourney v. Wetherell, supra, the indebtedness of the administrator was not acknowledged, but, on the contrary, was strenuously denied.

In Tarbell v. Jewett, supra, it was said: "The note, therefore, became assets of the estate, from which the liability of the estate to the guardian could properly be met, and it is immaterial that it was not named in the inventory or account. *** The fact that an executor charges himself with his debt in the inventory or account is an important fact. It settles the question that he owes the estate, and the amount of his debt, and in those cases where the debt has thus been accounted for great stress has been laid upon the fact. *** But an executor cannot escape his liability, or change the character of it, by failing to charge himself with his own debt. If he could, then by neglecting his duty there would be no remedy for the estate. Nor is charging himself with it the only way in which the fact of his indebtedness may appear or be proved; and if it appears, or is proved otherwise, then his liability is established as conclusively as if he had charged himself with the debt in his inventory, and his sureties become responsible if he fails to account for it."

In this state it was early decided in the case of Potter v. Titcomb, 1 Fairf. 53, that an administrator must inventory and account for any debt due from himself to the intestate, even though he should deny that there was such indebtedness. And in Potter v. Titcomb, 7 Greenl. 302, it was held that, in order to compel an administrator on his official bond to pay the amount of a debt due from him to the intestate, it is necessary that he should first

be charged with the amount in an administration account, by a decree of the judge of probate.

An indebtedness from an administrator to the estate, having been converted into assets by his appointment, is not revived by the death or removal of the administrator, so that it can be sued by an administrator de bonis non. In Tarbell v. Jewett, supra, it is said: "We are not aware of any case where it has been held that a debt due from an executor, having once become assets, can be revived, and an action maintained upon it by an administrator with the will annexed; nor of any case where a debt due to the executor has been held not to be extinguished if sufficient assets come to his hands."

In Monroe v. Holmes, 9 Allen, 244, it was held that, where an executor had died, leaving the estate unsettled, his administrator could not maintain an action at law against the administrator de bonis non to recover a balance due to the executor, but must present an account to the probate court for settlement. And in Prentice v. Dehon, 10 Allen, 353, it was held that upon the same principle such an action could not be maintained after the resignation of the executor.

Whether the debt is due to or from the executor or administrator, and the principle is the same in the case of either executor or administrator, the debt as such becomes extinguished by the appointment of the debtor or creditor, and is not revived by his death or removal from that position.

No action at law, under the circumstances of this case, could be maintained by the administrator de bonis non against the personal representative of his predecessor, for the reasons already considered, and we think that the complainant can have no better nor greater rights, in this respect, in a proceeding in equity.

The defendant was appointed executrix September 6, 1892. This bill in equity was commenced October 5, 1895. By Rev. St. c. 87, § 19, when a claim has not been presented within the time limited by statute against the estate of a deceased person, this court, if of opinion that justice and equity require it, and that such creditor is not chargeable with culpable neglect in not prosecuting his claim, may give judgment for the amount of the claim against the estate. The only object of this statute is to relieve a creditor, under certain circumstances, from the limitation of the statute in regard to the prosecution of claims against the estates of deceased persons. It does not create a cause of action in equity, after the bar of the statute, when there was none at law before.

Nor can the bill be sustained upon the ground, as contended, that this money was received by the defendant's testator charged with a trust in favor of the intestate, because, if this was so, the identity of the trust fund has been lost. There is no attempt here to hold a particular fund or property as charged with the trust. There is no allegation or testimony to the effect that this money can be

traced or distinguished from other property or money of the defendant's testator, the original administrator.

The identity of this trust fund, if such it was, having been lost, the cestui que trust can stand in no better position than other creditors. Goodell v. Buck, 67 Me. 514; Steamboat Co. v. Locke, 73 Me. 370; Fowler v. True, 76 Me. 43.

Bill dismissed, with costs for the respondent.

CUMMINGS v. GILMAN et al. (Supreme Judicial Court of Maine. Aug. 2, 1897.)

SALE-TITLE-DELIVERY.

1. The general rule is that as between seller and purchaser, and as against strangers and trespassers, the title to personal property passes by sale without delivery, when no question arises in relation to the statute of frauds.

2. This rule does not operate against subsequent bona fide purchasers, attaching creditors without notice, and others standing in like relation. As against them there must be delivery of the property sold.

3. Where the same goods are sold to two different purchasers by conveyances equally valid, he who first lawfully acquires possession will hold them against the other.

4. In the present case the apples sold remained in the vendor's possession till the defendants hauled them away. The defendants having paid for them, and got the first possession, they will be entitled to hold as against the plaintiff who purchased from the owner, but never got the actual possession.

(Official.)

Exceptions from superior court, Kennebec county.

Action by Maurice E. Cummings against Ernest J. Gilman and another.

This was an action of trover for 45 barrels of apples, tried to a jury in the superior court for Kennebec county, where a verdict was returned for the defendants.

The plaintiff, in addition to a general motion, took exceptions to a part of the charge to the jury, as follows:

"But the defendants raise another legal point, and that is based upon a question of fact for you to determine. They claim that the testimony of Gordon himself shows that the delivery before payment could be demanded was to be made at the depot, and they claim that if payment was to be made at the depot, or if it was a condition of the sale that those apples were to be delivered at the depot, then the bargain was not completed, as is claimed by the defendants, until they were delivered at the depot.

"Well, gentlemen, it is undoubtedly true that all the conditions of the sale according to the contract must be complied with before the sale is completed. You must first get at the intention of the parties. What did they intend in this case? Was it intended that the sale should be completed there at Ingham's place, with the packing of the apples in the barrels? Could Ingham then have demanded payment? And, if payment had been refused,

could he have enforced it? If the sale was completed, if all the conditions and intentions of the parties had been complied with, then the sale was completed, and he could have demanded pay, and enforced it if the payment was not made thereafter.

"But if it was a condition of the sale, and if he had no claim upon Gordon for the price until they had been delivered at the depot, then the sale was not completed until they were delivered.

"So, that, gentlemen, it is a question for you to determine what was the contract. Was it for a delivery and completion of the sale,-a delivery to the agent of Gordon there in such manner that Gordon would then have been obliged to pay? Or was he not obliged to pay anything until the delivery at the depot? If so, it was an uncompleted sale. It was executory on his part, and a sale to these defendants, under the circumstances to which they have testified, would so put and vest title in them that Cummings could not maintain this action against them."

The presiding judge refused to give the following instructions requested by the plaintiff:

"If one sells property not belonging to him without consent of the owner, such owner may reclaim it in the hands of the buyer, although it was sold and purchased bona fide and for a valuable consideration."

"In a bargain and sale the thing which is the subject of the contract becomes the property of the buyer the moment the contract is concluded, and without regard to the fact whether the goods be delivered to the buyer or remain in possession of the seller."

To these rulings and instructions and refusals to instruct, the plaintiff excepted. Motion and exceptions overruled.

E. O. & Fred E. Beane, for plaintiff. J. Williamson, Jr., and L. A. Burleigh, for defendants.

FOSTER, J. Trover for 45 barrels of apples. ples. This case is before the court upon motion and exceptions by the plaintiff, verdict being for defendants. The apples were raised by one Ingham, who, as the plaintiff contends, sold the same to Gordon & Henry, traders at Readfield, and that they sold the same to the plaintiff.

The defendants assert that Ingham sold and delivered the apples to them, and that they were bona fide purchasers, with no notice of any sale by Ingham to any other party, they paying in full for the apples.

The principal point involved at the trial was in relation to delivery.

Although the general rule is that as between seller and purchaser, and as against strangers and trespassers, the title to personal property passes by sale without delivery (when no question arises in relation to the statute of frauds), nevertheless the same rule does not operate against subsequent bona fide purchasers, attaching creditors without

notice, and others standing in like relation. To render a sale valid against these, there must be delivery of the property sold. Ludwig v. Fuller, 17 Me. 162; Vining v. Gilbreth, 39 Me. 496; McKee v. Garcelon, 60 Me. 165.

When, therefore, the same goods are sold to two different purchasers, by conveyances equally valid, it is well settled that he who first lawfully acquires the possession will hold them against the other. Lanfear v. Sumner, 17 Mass. 110; Jewett v. Lincoln, 14 Me. 116; Brown v. Pierce, 97 Mass. 46, 48.

In this case the apples remained in the vendor's possession until the defendants bauled them away.

The sale under which the plaintiff claims title was to Gordon & Henry while the apples were lying in a bin, unpacked. They never paid for the apples, and the only expense they had been to was the packing. The barrels belonged to Ingham. The court, under proper instructions, presented the contention of the parties to the jury. Defendants claimed that the first alleged sale was conditional; that, the conditions never having been complied with, it became merely an

executory contract, unfulfilled by the parties

to it.

If it was a conditional sale, and anything further remained to be done by either party as a condition precedent to the passing of the title, then there was no completed sale.

All questions of fact in relation to the contract of sale by Ingham to Gordon & Henry, and of delivery, were left to the jury, and from an examination of the evidence we see no reason for disturbing the verdict.

Nor do we think the plaintiff's exceptions can be sustained. There is nothing in that part of the judge's charge which is excepted to which will warrant the court in saying there was error; and the same may be said in reference to the exceptions in relation to the requested instructions. The first request was misleading, and could hardly be said to be applicable to the facts in issue. The second request, while it may be unobjectionable in its application between vendor and vendee, is not to be applied when the rights of subsequent bona fide purchasers are involved. Motion and exceptions overruled.

plantations; and the duties and powers of such assessors relative to such persons, are the same in every respect as overseers of the poor in towns have in like cases; and such plantations shall assess and raise all moneys necessary to defray the expenses incurred in the care of such persons; and plantations so furnishing relief, have the same remedies against towns of their settlement, that towns have in like cases. But this section does not extend to or affect the laws concerning so-called state paupers or paupers' settlements."

The effect of this section is to impose upon the assessors of such plantation the duty of looking after that class of paupers for the support of whom they have their remedy against the towns where is to be found their legal settlement. 3. It does not impose on such assessors the duty of looking after so-called "state paupers."

4. That duty is imposed upon the assessors of the "oldest incorporated adjoining town, or nearest incorporated town where there are none adjoining," as specified in section 29.

(Official.)

Exceptions from supreme judicial court, Oxford county.

This was an action by Henry Davis against the inhabitants of Milton plantation to recover for the burial expenses of a state pauper who died in Milton plantation, and of which plantation the plaintiff was a resident.

In the course of the trial the presiding justice made the following pro forma ruling: "If you find the issues of fact in favor of the plaintiff,-if you find, in other words, that the plaintiff would be otherwise entitled to recover if the defendants had been an incorporated town,-he may also recover against these defendants, who are only an organized plantation, and not a town. It would be immaterial whether they were an organized plantation, merely, or an incorporated town. For the purposes of this trial, I give you that rule."

The defendant took an exception to this ruling, and also filed a general motion for a new trial, a verdict for the plaintiff having been returned by the jury. Exceptions and motion sustained.

J. S. Wright, for plaintiff. J. P. Swasey, for defendants.

FOSTER, J. The plaintiff, a resident of the defendant plantation, sues to recover for the burial expenses of a state pauper who died in said plantation.

Exception is taken to the ruling of the presiding justice that, if the plaintiff would be otherwise entitled to recover if the defendants had been an incorporated town, he might also recover against these defendants, who are only an organized plantation, and not a town.

We think this ruling cannot be sustained. The obligations of towns and plantations in reference to the support of paupers result from provisions of positive law. Whatever there is originates solely from statutory enactment, and it has none of the elements of a contract, express or implied. There are no equitable considerations out of which presumptions will arise in favor of either party.

"The statutes upon the subject are in no sense remedial, and are not to be modified or enlarged by construction, or by any apparent equities, and nothing is to be deemed to be within the spirit and meaning of the statutes which is not clearly expressed in words." Plymouth v. Wareham, 126 Mass. 475, 477.

Therefore, unless the plaintiff can bring his case within the express provision of some statute, he must fail, for there is no moral obligation resting upon the defendant plantation to support its paupers. Newry v. Gilead, 60 Me. 154, 156.

It is admitted that the person for whose burial expenses this suit is brought was a state pauper.

Rev. St. c. 24, § 33, imposes upon certain plantations certain obligations with reference to "persons found" within their limits, and needing relief. It is as follows: "Persons found in plantations having a population of more than two hundred, to be determined by the returns of the county commissioners, as provided by section seventy of chapter three, and a state valuation of forty thousand dollars, and needing relief, are under the care of the assessors of such plantations; and the duties and powers of such assessors relative to such persons, are the same in every respect as overseers of the poor in towns have in like cases, and such plantations shall assess and raise all moneys necessary to defray the expense incurred in the care of such persons; and plantations so furnishing relief, have the same remedies against the towns of their settlement, that towns have in like cases. But this section does not extend to or affect the laws concerning so-called state paupers or paupers' settlements."

It is admitted that the valuation and population of the defendant plantation bring it within that section.

But it will be noticed that the duty imposed "does not extend to" state paupers, but only such as have a settlement in some town. The effect of this section is to impose upon the assessors of such plantation the duty of looking after that class of paupers for the support of whom they have their remedy against the towns where is to be found their legal settlement. This duty was formerly cast upon the oldest adjoining town (section 29), and this duty still continues in relation to the so-called "state paupers."

The closing period of the section expressly provides that "this section does not extend to, or affect the laws concerning so-called state paupers or paupers' settlements." The defendant plantation was under no obligation to provide means or raise money for the relief of state paupers, and there are no express provisions of statute giving it any remedy against the state. Any such claim for the support of state paupers in such plantations must come through the oldest incorporated adjoining town, or nearest incorporated town, where there are none adjoining, as specified in section 29, amended by chapter 31, Laws

1887. Such certainly must be the clear meaning of the law, else why did the legislature re-enact the law in 1887, and why did not the legislature except from the liability imposed on the oldest adjoining town to relieve state paupers in unincorporated plantations, such as were found in plantations having a valuation of $40,000, and a population of 200?

This section, properly construed in connection with the last sentence contained in it, is as if it read, "Persons [other than state paupers] found in plantations having a population of more than two hundred," etc.

It is not the duty of unincorporated plantations to provide for support of state paupers, or raise money for their relief; but, by express statute, "persons found in places not incorporated and needing relief, are under the care of the assessors of the oldest incorporated adjoining town * * and when such paupers have no legal settlement in the state, the state shall reimburse said town for the relief furnished," etc.

Neither does section 43 apply to a case like this, wherein it is provided that "towns shall pay expenses necessarily incurred for the relief of paupers by an inhabitant not liable for their support, after notice and request to the overseers, until provision is made for them."

If it was not the duty of the defendant plantation to provide support for deceased, who, it is admitted, was a state pauper, then it was under no legal obligation to pay for the expenses of burial for which this suit is brought; could not properly raise the money therefor, there being no statute authorizing it; and this action cannot be maintained. Exceptions and motion sustained.

SEAVEY V. CLOUDMAN.

(Supreme Judicial Court of Maine. Aug. 16, 1897.)

TENANCY AT WILL-TERMINATION-NOTICE.

A tenancy at will is terminated by the alienation of the premises by the landlord, and without giving the tenant the notice provided for in Rev. St. c. 94, § 2.

Held, that the word "party," in Rev. St. c. 94, § 2, is to be understood as "party to the contract." The notice is to be given by one contracting party to the other contracting party, by the landlord to the tenant, or by the tenant to the landlord. This statute is not applicable when the relation of landlord and tenant does not exist. The words "and not otherwise" refer rather to the acts of the parties to the tenancy than to the effects of their acts by operation of law. (Official.)

Report from supreme judicial court, York county.

Action by Asa M. Seavey against Walter H. Cloudman. Judgment for defendant.

Geo. F. & Leroy Haley and E. J. Cram, for plaintiff. Addison E. Haley, B. F. Hamilton, and B. F. Cleaves, for defendant.