Carr v. Silloway , 111 Mass. 24 ( 1872 )

By the Court.

The only consideration for the two notes given by the intestate to Daniel Silloway, Jr., was in the eleven notes given by the latter to the former. These eleven notes were not intended for use by the intestate during his lifetime. They were separately inclosed, their respective destinations indicated, and a declaration written at the time, setting forth the purposes of the special deposit to be made, and then or afterwards in fact made of these notes. The intestate never transferred or made any use of the notes otherwise than to deposit them in accordance with that original understanding and arrangement. Taking the whole transaction together it was nudum pactum. Parish v. Stone, 14 Pick. 198. Loring v. Sumner, 23 Pick. 98. Hubbard v. Barker, 1 Allen, 99.

For the same reasons the instructions to the depositary would not be enforced as the declaration of a trust.

The indorsement of the notes, and their delivery to Mrs. Bradley, was not good, either as a gift inter vivas, or causa mortis.

The notes were under the control and remained the property of Daniel Silloway, Sen., at his death. No disposition which he had made of them would operate to give effect and validity to the notes he had given to Daniel Silloway, Jr. Their subsequent distribution was unauthorized and invalid.

The assignee of the two notes from Daniel Silloway, Jr., takes • them subject to all original defences. The administrator of Daniel Silloway, Sen., is entitled to defend, either on the grounds of want of consideration, or by a set-off of the eleven notes given in exchange. To make either defence at law effectually, he requires that the other notes be restored to him, that he may surrender them or file them in set-off. But as all parties are now before the court, it will be sufficient if they, and all persons acting or claiming under them, are enjoined fron instituting or further prosecuting any action to enforce any of said notes against the estate of Daniel Silloway, Sen. Decree accordingly.