on hand for fence." On the same day Byron E. Dye wrote a letter to his son, which contains, among other things, the following: "You can go to Willoughby, Hill & Co., and get your clothes. I will write your mother in regard to it." On December 1, 1880, Byron E. Dye wrote a letter to his son, which contains, among other things, the following: "I send you a draft for $20. I want you to get a nice suit, and then I want you to keep it nice." On December 17, 1880, Robert C. Dye wrote a letter to his father, which contains, among other things, the following: "I received your letter from Frankie, with many thanks. I will give you an account of what I bought with my money. It was as follows:" and then follows an itemized statement of the clothing bought for $20, together with a statement that his mother was pleased with his clothes. On November 17, 1882, Byron E. Dye wrote a letter to his daughter, Frankie, which contains, among other things, the following: "Suppose I die soon, all I have except Gussie's dower goes to you and Rob. You would not see your mother want. If I live and she should unfortunately lose her money, does anybody think I would ever see her want? I would divide my last dollar with her. I regard my obligations to support her during life just the same as if no divorce had ever been granted." Other letters passed between the father and son of like character to those above quoted.

The burden of proof in this case rested upon the plaintiff, Mrs. Dye, and we do not think that she made out her case. She did not, by the evidence or otherwise, show that any contract ever existed between herself and Byron E. Dye, requiring him to pay her for the support, education, or maintenance of Robert C. Dye. Mrs. Dye virtually testified on the trial that no such contract was ever made. And further, the divorce was granted on June 16, 1877; Byron E. Dye died September 26, 1883; and yet no claim was ever made by her to him that he was liable or in duty bound to pay her for anything furnished by her to Robert C. Dye; nor was any such claim ever made against his estate until October 18, 1884, when, for the first time, she made such claim in the probate court. And no claim was ever made that any contract ever existed between Mrs. Dye and Byron E. Dye imposing any obligation upon him to pay her for anything furnished by her to Robert C. Dye, until March 24, 1885, when for the first time she made such claim by setting it up in her second amended petition. And further, Mrs. Dye never kept any account of her expenses in supporting, educating, or maintaining Robert C. Dye, and made no charge for any such things as against anybody, until she filed her claim in the probate court on October 18, 1884. What Mrs. Webster heard Byron E. Dye say on the day the divorce was granted was not said to Mrs. Dye, and in all probability she did not hear it. And, of course, what was said to Mrs. Webster, whether in the presence or absence of Mrs. Dye, could not constitute a contract between Byron E. Dye and Mrs. Dye. The clothing and the money for clothing furnished by Byron E. Dye to his son, Robert, were evidently furnished as presents, and were not furnished in fulfillment of any contract. The son so considered them, and it would be natural that the father should make presents to his son. Besides, it would be bad policy to hold that a father could not give his son a present without becoming liable to pay his divorced wife, the son's mother, for everything which she might furnish to the son. Nothing that was said by Byron E. Dye to Mr. Gregory, or to Mr. Grimshaw, would constitute a contract between Byron E. Dye and Mrs. Dye. Indeed, it is evident from the evidence in the case that no such contract ever existed.

We think there was no sufficient evidence to sustain the report of the referee, and therefore the judgment of the court below will be reversed, and the cause remanded for a new trial.

(All the justices concurring.)

END OF VOLUME 15.