Carley v. Green , 94 Mass. 104 ( 1866 )

Gray, J.

The facts of this case distinguish it from all those cited for the defendant. The plaintiff’s wife having left his house with his consent, he was doubtless liable for the necessary expenses of her subsequent support and funeral. But the facts agreed show that he has never refused or been asked to pay those expenses, and that the defendant, when requested to give up the note, claimed to hold it only as the property of her representatives. The note never was her property. It was originally made to the husband and not to the wife, and it is not pretended that the original consideration for it was any property or right of hers. He never put it into the hands of a third person for her use, or declared it to be her property either in her hands or in his own. His delivery of the note to her on her departure, saying “ You will need something,” did not transfer the property in the note to her, but only authorized her to collect it and apply the proceeds to her support. She dying without having done so, the note never ceased to be his property, and he is entitled to it as against her administrator. There is nothing in our statutes, and no evidence before us that there is anything in the laws of Vermont, to affect the application of the common law to this case. Judgment for the plaintiff.