Gridley v. Sumner.

Upon the facts set forth in the finding the undertaking of the respondent was simply a verbal guaranty of Post's debt to another after the credit had been given to Post alone. There is no suggestion of any new or further consideration. for the promise; no intimation that Post's creditors released him from liability or changed their relative positions in any manner. The case seems to fall quite within the definition given in Packer v. Benton, 35 Conn., 343; it was "an undertaking by a person not before liable for the purpose of securing or performing the same duty for which the party for whom the undertaking is made continues liable," and therefore within. the statute of frauds.

On the 3d day of January, 1873, the day when the petitioners gave the respondent notice of their intention to file a lien, he had not in fact paid, nor in law come under any obligation. which could be enforced against him to pay, these debts of Post; he had not done any act which will satisfy the demands of the word "payment" as used in the statute. It must be held to import either an actual discharge of a debt, or the assumption by the respondent of an obligation which can be enforced against him contrary to his will. We cannot so construe it as to permit the owner of a building first to use a verbal guaranty to pay, to defeat the lien of a material-man, and then to invoke the protection of the statute of frauds against his promise, and thus avoid the payment of both. The statute requires certainties and cannot be satisfied by possibilities. It is not enough that he might thereafter waive the statute of frauds and recognize his guaranties as valid and binding contracts; on the day of the lien there yet remained. to him an option, and consequently a doubt as to what in fact would be done; and he cannot be said to have made a payment who still has the privilege of refusing to pay. The statute is explicit; it speaks of acts performed, not of what may be done in the future.

And, inasmuch as, on and after the day named, the rights of the three parties in and to a part or the whole of the fund became dependent upon the language of the statute, the respondent was thereafter powerless to change or nullify the

Kerrigan v. Rautigan.

law, or to destroy or even affect the petitioners' rights. He could not by any subsequent act of waiver, or undertaking to pay, or payment even, create a new charge upon the fund to the prejudice of those rights as they stood fixed on that day. We cannot allow him to admit any person to share in it who had not on that day a fixed legal right so to do; we cannot allow him to redeem his voidable promise to Post's creditors at the expense of the petitioners; and this, because we are restricted by the statute within the narrow limits of the word "payment."

We advise the Court of Common Pleas to pass a decree in favor of the petitioners for the sum of $91, with interest from the 6th day of December, 1872, and their costs.

In this opinion the other judges concurred.

ELIZABETH KERRIGAN vs. JOHN RAUTIGAN.*

A woman deposited $460 in a savings bank for E. K., her niece, the deposit being placed to the credit on the books of the bank of “E. K.-M. K. guardian," she at the same time informing M. K. the guardian, that she had put the money in the bank for E. K. A bank book was delivered to her by the bank with the deposit so entered upon it, but she retained possession of it, and afterwards had the money transferred back to her by the guardian. The court below found that at the time the deposit was made she intended it as a gift to E. K. Held to be a complete gift and beyond her power of revocation. At the time the gift was made the donor owed one R $91, and had no property except the money given to E. K. She was however unmarried, and supported herself by her labor, and was in receipt of a pension of $8 per month and a monthly rent of $3, and she was engaged in no business that required money or involved risk. The debt to R remained unpaid at the time of her death, two and a half years later. Held that, while the gift was void as against R, there was nothing to create a legal presumption of an intent to defraud subsequent creditors.

And held that therefore her administrator could not resort to the fund constituting the gift, for the payment of debts of the estate subsequently contracted.

*This case was submitted on briefs and therefore was considered by Judges PARK and FOSTER who were not present at the term.

VOL. XLIII.-3

Kerrigan v. Rautigan.

ASSUMPSIT, for money had and received; brought to the Court of Common Pleas of New London County. The plaintiff was a minor and sued by her next friend Margaret Kerrigan. The case was tried to the court, on the general issue, before Mather, J. The court found the following facts:

On the 20th day of August, 1869, Elizabeth Williams, a sister of Margaret Kerrigan, and an aunt of the plaintiff, Elizabeth Kerrigan, who was a minor, deposited in the Chelsea Savings Bank of Norwich $460, in the name and to the credit of “Elizabeth Kerrigan-Margaret Kerrigan, guardian,” and received from the bank a book showing that such deposit had been made. At the time of making the deposit she told the said Margaret, that she put the money in the bank for the plaintiff, but did not deliver the book either to said Margaret or to the plaintiff. On the 29th of October, 1869, she drew from the bank $10 of the money so deposited, and caused the remainder to be transferred back to her by the said Margaret Kerrigan, and took out a book for the same in her own name. She deposited the further sum of $37.75 on the 20th of September, 1870, which was also placed to her credit on the books of the bank and entered on her deposit book. From the 30th of August, 1869, to the 2d of November, 1870, interest on the deposits to the amount of $26.25 accrued. But between those two dates she drew out $114, leaving a balance to her credit on the 2d of November, 1870, of $400, which was on that day, by her direction, placed to the credit of "Elizabeth Kerrigan-Elizabeth Williams, trustee." From the 2d of November, 1870, to the 19th of March, 1872, there was no change in the deposit account, except that the earnings of the money on deposit, amounting to $35.78, were credited in the account, and $23.78 of that sum was drawn out by her. On the 19th of March, 1872, she transferred the balance then remaining, amounting to $412, to herself, and received from the bank a deposit book for that sum in her own name. On the 20th of March, 1872, she drew out $12, and on the 22d of March, 1872, transferred the remainder, amounting to $400, to "John Rautigan, trustee," (the defendant,) and directed. him to appropriate the moncy to the payment of her debts

Kerrigan v. Rautigan.

and funeral charges and for a grave stone. A few days afterwards she died, leaving no estate, unless the said sum of $400 belonged to her.

The said Elizabeth Williams never delivered to the said Margaret nor to the plaintiff the bank book taken out on the 30th of August, 1869, and she always held the book taken out November 2d, 1870, until four or five days before she died. She then placed it in the hands of the said Margaret, telling her to take care of it, and that it was Elizabeth Kerrigan's money. But at her request it was returned to her soon afterwards, and she, after drawing out $12 for her own use, transferred the balance to the defendant as trustee, as already stated.

She was an illiterate person, being unable to read or write. The plaintiff had been named for her. At the time she made the first deposit, on the 30th of August, 1869, she intended to give the deposit to the plaintiff.

After her death the defendant drew the $400 from the bank, and before the commencement of the present suit, paid the funeral expenses of the deceased, amounting to $122.75, and debts then outstanding against her, including the debt to F. P. Rochford hereinafter mentioned, to the amount of $204.06, with so much of the money. He subsequently, on the 26th of January, 1874, took out letters of administration on her estate, and ever since has been and still is sole administrator of the estate, not having settled his administration account. This suit was brought on the 21st of January, 1874, to recover of the defendant the said sum of $400.

Some time previous to August 30th, 1869, the said Elizabeth Williams was the owner in fee simple of a house in Norwich of the value of $1,000, and was indebted to John Rautigan, the defendant, who is her brother in law, in the sum of $400, and some time previous to 1869 she conveyed the property to Rautigan for no other valuable consideration than this debt of $100. She continued to live in the house until the time of her death, free of rent, and had collected the rent of one of the tenants at the rate of $3 per month for seven years previous to her death, without any objection on the part of

Kerrigan v Rautigan.

Rautigan She received a pension of $8 a month and the above rent, from a time previous to 1869 to the time of her death.

At the time the first deposit was made the said Elizabeth Williams was indebted to one F. P. Rochford in the sum of $91.75, and had no property to pay the debt with except the money so deposited; and her situation was the same when she made the deposit in the name of "Elizabeth KerriganElizabeth Williams, trustee." The indebtedness to Rochford remained unpaid at the time of her death.

Upon these facts the defendant claimed that neither the deposit of $460 made in the name of "Elizabeth KerriganMargaret Kerrigan, guardian," nor that of $400 made in the name of "Elizabeth Kerrigan-Elizabeth Williams, trustee," was a gift of the money deposited to the plaintiff; and the court was requested by the defendant so to rule. But the court refused so to rule, and held that the deposits were an irrevocable gift of the money deposited to the plaintiff.

The defendant also claimed, and requested the court to rule, that the deposits were made by the said Elizabeth Williams with the intent to avoid the debt due from her to the said Rochford, and were void not only as against that creditor but also as against all her subsequent creditors. The court did not so rule, but ruled that the making of the deposits was void as against the said Rochford only.

The defendant further claimed that if the making of either of the deposits constituted a gift of the money, the plaintiff was not entitled to recover in this suit, because the defendant as administrator had the right to as much of the money as was necessary to pay the debts against the estate and all proper charges; and that the amount needed for that purpose could not be ascertained until the settlement of the administrator's account in the court of probate; and the court was requested by the defendant so to rule; but the court refused so to rule, and rendered judgment that the plaintiff recover of the defendant the sum of $308.30 (being the amount drawn. from the bank by the defendant, less the amount of the Rochford debt,) and the interest thereon from March 30, 1872, together with her costs.