Money paid by an executor under a mistake as to the terms of his testator's will,2 or in ignorance of the fact that the payee's legacy had lapsed,3 may be recovered.

Although the rule was otherwise at the English common law,4 it is held by the weight of American authority that money paid by an executor or administrator to a creditor in excess of his pro rata share, under the mistaken belief that the estate is solvent, may be recovered.1

Husband or wife: recovery allowed: Fox v. Dawson, 1820, 8 Mart. (La.) 94; Higgins v. Breen, 1845, 9 Mo. 497. Contra: Payne's Appeal, 1895, 65 Conn. 397; 32 Atl. 948; 33 L. R. A. 418; 48 Am. St. Rep. 215; Cooper v. Cooper, 1888, 147 Mass. 370; 17 N. E. 892; 9 Am. St. Rep. 721.

If the plaintiff, when he entered into the marriage, knew that the only evidence of the death of the former husband of the defendant was his long-continued absence from home, he assumed the risk that the marriage was void and cannot be said to have performed the duties of a husband in reliance upon its validity. See Ogden v. McHugh, 1897, 167 Mass. 276; 45 N. E. 731; 57 Am. St. Rep. 456.

1 Urie v. Johnston, 1831, 3 Penr. & W. (Pa.) 212.

2 Northrop's Extrs. v. Graves, 1849, 19 Conn. 548; 50 Am. Dec. 264. 3 Phetteplace v. Bucklin, 1893, 18 R. I. 297; 27 Atl. 211. Cf.

Phillips Extr. v. McConica, 1898, 59 Ohio St. 1; 51 N. E. 445; 69 Am. St. Rep. 753, where the mistake was one of law and relief was for that reason denied.

4 See Walker v. Hill, 1821,17 Mass. 380, 383, where the reason for the English rule is explained.

An overpayment to a legatee or distributee may be recovered, in England, only when made under the compulsion of a suit, or when the executor or administrator is subsequently obliged to pay debts of which he had no notice when the payment sought to be recovered was made.2 In the United States, the rule is not so strict, and while in some jurisdictions the executor or administrator must satisfy the court that he acted prudently in making the payment,3 in others, and more prop-

1 Mansfield v. Lynch, 1890, 59 Conn. 320; 22 Atl. 313; 12 L. R. A. 285; Wolf v. Beaird, 1888, 123 111. 585; 15 N. E. 161; 5 Am. St. Rep. 565; East v. Ferguson, 1877, 59 Ind. 169; Tarplee v. Capp, 1900, 25 Ind. App. 56; 56 N. E. 270; Morris v. Porter, 1895, 87 Me. 510; 33 Atl. 15; Walker v. Hill, 1821, 17 Mass. 380; Heard v. Drake, 1855, 4 Gray (Mass.) 514; Rogers v. Weaver, 1832, 5 Ohio 536; Thorson v. Hooper, 1910, 57 Or. 75, 79; 109 Pac. 388. Contra: Lawson's Admrs. v. Hansborough, 1849, 10 B. Mon. (49 Ky.) 147; (cf. Story v. Story, 1901,22 Ky. Law Rep. 1869; 62 S. W. 865); Carson v. McFarland, 1828, 2 Rawle (Pa.) 118; 19 Am. Dec. 627. The former case rests partly upon the ground that the plaintiffs were negligent, and partly upon the construction of a Kentucky statute; the latter chiefly upon the theory that the defendant had received only what was honestly due him and was therefore not bound in conscience to make restitution. As to the plaintiff's negligence, it is elsewhere shown that upon principle and by the weight of authority the negligence of the plaintiff is not a defense. (See ante, Sec. 15.) To the claim that the retention of the benefit is not against conscience because the debt was honestly due, an answer is found in Mansfield v. Lynch, supra, where the court said (p. 328): "In one sense it is true that the estate owed the defendant the amount overpaid, but it is not, in any legal or moral sense true that it was the duty of the administrator to pay, or the right of the defendant to receive, her claim in full from the then known assets of the estate. Her right was only to receive her pro rata share with the other general creditors, and the unpaid balance still remained a claim in her favor against the estate. If she gets more than this, it must be at the expense of the other general creditors or of the administrator. She did in fact get more than she was entitled to solely in consequence of an honest mistake. . . . Can it then with reason be said she has 'a right, in good conscience,' to retain money which rightfully belongs to the estate, to which she is neither morally nor legally entitled, and which she obtained solely in consequence of an honest mistake which wrought her no harm whatever ?"

2 See Williams, "Executors," p. 1312 and cases there cited.

3 Clifton v. Clifton, 1907, 54 Fla. 535; 45 So. 458, (allowing relief in equity); Donnell v. Cooke, 1869, 63 N. C. 227; Lyle p. Siler, 1889, 103 erly (see ante, Sec. 15), an honest mistake as to the condition of the estate seems to be regarded as a sufficient basis for relief.1 Where the mistake is not as to the condition of the estate, but as to the law, relief will not be afforded,2 except in those jurisdictions where money paid under a mistake of law may be recovered.3

N. C. 261; 9 S. E. 491, 492; McEndree v. Morgan, 1888, 31 W. Va. 521; 8 S. E. 285. And see Harris v. White, 1819, 5 N. J. L. 422.

1Alexander v. Fisher, 1850, 18 Ala. 374; Smith v. Smith, 1881, 76 Ind. 236; Stokes v. Goodykoontz, 1890, 126 Ind. 535; 26 N. E. 391; Buchanan v. Pue, 1847, 6 Gill (Md.) 112; Gallego's Extrs. v. Attorney General, 1832, 3 Leigh (Va.) 450, 488; 24 Am. Dec. 650; Lewis v. Overby, 1879, 31 Grat. (Va.) 601, 622; (but see Davis v. Newman, 1844, 2 Rob. (Va.) 664; 40 Am. Dec. 764); McClung v. Sieg, 1902, 54 W. Va. 467; 46 S. E. 210; 66 L. R. A. 884. In this last case the plaintiff had remitted the assets to the domiciliary administrator in Virginia, who in turn had partially distributed the estate. Having been forced to pay a judgment subsequently obtained by a West Virginia creditor, the plaintiff was allowed in equity to recover from a Virginia distributee. For a criticism of this decision, see 17 Harv. Law Rev. 422.

2 Phillips Extr. v. McConica, 1898, 59 Ohio St. 1; 51 N. E. 445; 69 Am. St. Rep. 753; Shriver v. Garrison, 1887, 30 W. Va. 456; 4 S. E. 660.

3 Northrop's Extrs. v. Graves, 1849, 19 Conn. 548; 50 Am. Dec. 264; Culbreath v. Culbreath, 1849, 7 Ga. 64; 50 Am. Dec. 375.