APPEAL, from a pro forma decree of the judge of probate, charging the appellant with the amount of two notes signed by Orissa J. Pillsbury, two notes signed by L. D. Kelly, and one note signed by Anson R. Marston, all payable to his intestate, Mercy Marston. Facts found by a referee.

In November, 1878, Mrs. Mercy Marston, with her son Anson, and her daughter Mrs. Pillsbury, called upon Samuel Herbert, Esq., attorney-at-law, and Mrs. Marston asked Mr. Herbert if she could give her property to a part of her children, and not to all. Upon being informed that she could, she said she wanted to give her son Anson, and her daughters Mrs. Pillsbury and Mrs. Kelly, notes that she held against them. She then took the notes here in question out of her satchel, and gave them to Mr. Herbert to give to the children. Mr. Herbert, by her request, handed Anson his note and Mrs. Pillsbury her notes. They took the notes and put them in their satchels or wallets. Mrs. Marston at the same time delivered to Mr. Herbert two notes signed by L. D. Kelly, the husband of her daughter Melissa, saying that she regarded them just the same as if signed by Mrs. Kelly, and that Mr. Herbert might keep those notes to Mrs. Kelly's order, delivering them to Mrs. Kelly when she called for them.

The foregoing transaction was intended by the donor, and understood by the donees, to be a complete delivery of the notes operating as an absolute extinguishment of all claim against the signers. There was no reservation or condition annexed to the delivery.

Further talk occurred, and it was finally arranged that the notes should all be handed back to Mrs. Marston to be retained by her, and she signed and left in the hands of Mr. Herbert a writing, not under seal, in substance as follows:

"For a valid consideration, I hereby give to my son, A. R. Marston, a note I hold against him [describing it]. I also give to Mrs. Orissa Pillsbury two notes I hold against her [describing them]. I also give to Mrs. Melissa Kelly two notes signed by her husband, L. D. Kelly [describing them]. These notes are all given up into their hands and possession as their own property, I having no right whatever to them, to collect them, or to assign them, or give them away to anybody.

"Excepting hereby after the notes are given up to each of them, by consent of said children I take the notes back as their property, to hold upon the condition that if I shall spend all the rest of my property and become poor and in want I shall have the right to draw upon each of my said children pro rata for such amount as I shall actually need for my support."

Mrs. Marston died in July, 1881, at the house of Mrs. Kelly. Shortly after, Mrs. Kelly, Mrs. Pillsbury, and Anson came together to Mr. Herbert's. Mrs. Kelly said that she had those notes that were given to the parties, and brought them down to be distributed. Mrs. Kelly then gave the notes to Mr. Herbert, and he gave them to the respective parties, Mrs. Kelly making no objection.

Mrs. Kelly, who is one of the appellees, has never returned to the administrator the two notes signed by L. D. Kelly. She alleges that she was divorced from L. D. Kelly four or five years ago, that the notes are worthless, and that she cannot find them.

So far as it is a question of fact, the referee finds that the redelivery of the notes to Mrs. Marston was not intended or understood by the parties as revesting in Mrs. Marston the title to the notes, or the right to enforce the notes, except in the contingency of her needing support and the children refusing to furnish it. Upon the happening of such a state of things, Mrs. Marston was to be at liberty to treat the notes as hers, and to enforce them so far as necessary for her support. She had a right to retain the notes in her possession during life, but with the understanding that she should use them only in the contingency above specified. She never lacked for support, and never attempted to collect anything on the notes.