back money due to the claimant as security to compel performance. The claimant went on with deliveries, and in December was asking for orders "on our contract;" on April 27 returned a voucher "covering hay on our contract;" on May 27 sent a bill of lading and invoice "ordered upon our contract to-day;" and on June 24, 1899, wrote "We would like to know how soon you expect us to put in the balance of the hay due upon the contract, as we are anxious to get it all cleaned up." It would seem that no hay was ordered after June 13. The claimant delivered the hay, and received full payment for it under the contract, without protest or attempt to reserve any rights at that time. The last payment was made on July 24, 1899. On May 11, 1899, however, the claimant wrote to the quartermaster, claiming damages on account of the government not taking the hay at the rate of one sixtieth per day, and on June 28, and later, the quartermaster approved the claim. Although, no doubt, both parties supposed their agreement binding, the court of claims held, and it is not disputed, that the contract was within Rev. Stat. § 3744 (U. S. Comp. Stat. 1901, p. 2510), and not having been "reduced to writing, and signed by the contracting parties with their names at the end thereof," could not have been sued upon if it had not been performed. Clark v. United States, 95 U. S. 539, 24 L. Ed. 518; South Boston Iron Co. v. United States, 118 U. S. 37, 6 Sup. Ct. 728, 30 L. Ed. 69. See Monroe v. United States, 184 U. S. 524, 22 Sup. Ct. 444, 46 L. Ed. 670. It is argued by the claimant on this ground that it is entitled to maintain a quantum valebat.

On the facts stated it is evident that the claimant has no case. The invalidity of the contract is immaterial after it has been performed. When a lawful transfer of property is executed, it does not matter whether the terms of the execution were void or valid while executory; the transfer cannot be revoked or the terms changed. A promise to make a gift does not bind, but a gift cannot be taken back, and a transfer in pursuance of mutual promises is not made less effectual by those promises or by the fact that money was received in exchange. The contract may be void, as such, but it expresses the terms on which the parties respectively paid their money and delivered their goods. See Savage v. United States, 92 U. S. 382, 23 L. Ed. 660. The proposition does not need to be argued or explained more at length. Of course, different considerations would come in if the claimant had been subjected to a motive from which it had a right to be free, as, for instance, by fraud or duress. But there was nothing which the law could recognize as duress, and the suggestion that it was peculiarly the duty of the officers of the government to see that the contract was put in binding form is very far from making out an analogy to fraud. The claimant was bound to know the law at its peril. The agent of the United States made no representation, and the claimant in no way purported to submit its judgment to his, if that would have bettered its case.

But it is said that this is not the simple case of mutual performance of a void contract, but that the United States, although it has paid the price, has broken the contract in respect of time. It may be

said that if the United States, instead of paying for the hay, had set up the invalidity of the contract, the claimant could have sued on a quantum valebat. Clark v. United States, 95 U. S. 539, 542, 543, 24 L. Ed. 518, 519; Bacon v. Parker, 137 Mass. 309, 310, 311. And it might be argued that the same result would follow if the United States, after paying the price, were compelled to rely upon the invalidity of the contract in answer to a claim of damages for a breach. Acceptance of payment by the vendor is not necessarily a waiver of such a claim. Garfield & P. Coal Co. v. Fitchburg R. Co., 166 Mass. 119, 123, 44 N. E. 119. But we need not consider the questions suggested, because we agree with the court of claims that there was no breach. The right to diminish the order, and to change the quantities and times, was reserved in the fullest and most express terms, and especially with regard to the event which happened,-the withdrawal of the troops. Therefore, if, in view of the protest and claim made by the claimant, we should assume that the payment of the contract price did not purport to be in full satisfaction of all claims under the contract, which would be going very far and would be against the findings, still there is no valid claim under it, because the United States has done all that it undertook to do. It is true that hay is an article varying greatly in price at different seasons of the year, and that would have been a reason for holding time of the essence, if the contract had fixed a time; but the contract left the time open, as we have said, and the claimant must be held to the bargain which it made, although it has been disappointed in reasonable hopes. Judgment affirmed.

4. EFFECT OF WAR ON CIVIL RIGHTS AND LIABILITIES

1. GOODELL v. PIKE.

(Supreme Court of. Vermont, 1867. 40 Vt. 319.)

Bill in chancery. The bill charges that the orator, now of Rockingham, lived in Somerset in 1855, when his wife ran away with one Oliver Pike to Wisconsin, taking with her the orator's infant son, Francis, aged about seven years. That soon after Oliver sent the boy to his brother, Aaron Pike, in Searsburg; that the orator thereupon made a verbal agreement with Aaron to keep the boy till he should be twenty-one, school, clothe, and maintain him, and teach him the trade of a bedstead maker, and pay him $100 on his coming. of age; that Francis lived with Aaron accordingly till August 31, 1864, when, being about seventeen years old, he enlisted into the United States service, by the procurement of Aaron; was mustered and went off to the war; that such enlistment was without the knowledge or consent of the orator; that Francis enlisted to the credit of Searsburg, and received a town order for $500, as a bounty from that town; that September 2, 1864, Aaron procured Francis to make a will, which is set out in the bill, in hæc verba, by which he bequeathed all his property to Lucy S. Pike, and made Aaron executor; that Francis died at Port Hudson, Louisiana, November 26, 1864; that Aaron presented said will for probate, January 4, 1865, and fraudulently concealing from the court the fact of Francis' minority, and representing him to have been of full age when the will was made, procured the will to be allowed and established by the court January 20, 1865. That the orator did not know of his said son's enlistment, nor of his making a will, nor of his death, nor of the presentation of the will for probate, nor of the probate thereof, till after the time for appealing from such probate had elapsed. That Aaron and his wife fraudulently concealed from the orator knowledge of the enlistment, death, and probate of the will of his son till too late to take an appeal. That Aaron insists upon holding the property under the will, and threatens to collect for his own, or his wife's use, the town order of $500. The orator insists that the will was void on account of the infancy of said Francis; that its probate was procured by the fraud of Aaron; that he is the sole heir of his son and entitled to the property; that Aaron Pike is insolvent, and if he gets hold of the money it will be lost.

Prayer. That Searsburg may be decreed to pay the money to the orator, and be enjoined in the meantime from paying it to anybody else; and that the other defendants may be decreed to surrender the order to the orator, and be restrained from setting up any title to it by virtue of said will and probate; and be enjoined in the meantime from negotiating or parting with it; and for further relief, &c. The joint and several answer of Aaron and Lucy Pike denied any fraud in the probate of the will. The town of Searsburg did not answer. The answer was traversed, and there was filed the following statement of facts, agreed upon by the parties: John Goodell, the

orator, is the father and heir at law of Francis Goodell, who died at Port Hudson, Louisiana, on the 26th of November, A. D. 1864. Said Francis Goodell was born at Monroe, in the state of Massachusetts, September 22, 1847. On the 31st day of August, 1864, said Francis Goodell enlisted, was uniformed, and was mustered into the service of the United States at Rutland, Vermont, by the provost marshal of the first district; on the same day the defendant, Aaron Pike, was duly appointed guardian of said Francis, and as such. guardian, consented to such enlistment and muster. Immediately after said enlistment and muster, the said Francis returned to the house of the defendant, Pike, and on the 2d day of September, 1864, he executed the will. Said enlistment of Francis Goodell was without the knowledge or consent of the orator, nor had the orator any knowledge of the death of his said son until after said will had been admitted to probate, and until after the time within which an appeal could be taken had elapsed. This case was heard on bill, answer, replication and statement of agreed facts, at the September Term, Windham County, 1867, Barrett, Chancellor, when it was considered and ordered that Aaron Pike deliver said order for said five hundred dollars to the orator, and that he and his wife refrain from claiming or receiving payment thereof, and that said town pay the same to the orator, with the interest legally accrued thereon, and that the orator recover his costs in the suit of said Pike. The decree was made accordingly, and the defendants, Aaron and Lucy S. Pike, appealed.

STEELE, J. It is urged that this will, though made by an infant of the age of seventeen years, may have been valid as a soldier's will, by virtue of some ratification it may have received while the infant was in actual military service, and that its probate may have been, or may hereafter be, justified by proof of such a ratification.

We do not think the statute enables an infant to make a valid will under any circumstances. The statute of wills, in general terms, limits the right of disposing of property by testament to persons of full age. After declaring the forms which must be observed in their execution, it provides that "nothing in this chapter shall be construed to prevent any soldier in actual military service, or any mariner or seaman being at sea, from disposing of his wages, or other personal estate, as he might otherwise have done." We think the words "as he might otherwise have done," refer merely to the mode of execution. This view is warranted by the language, is sustained by its connection with the preceding sections, and is confirmed by the reason of the provision. The situation of soldiers in actual service, and of sailors at sea, renders it impracticable for them to observe the statutory forms in making wills, and this provision is made in view of that fact. it would not be reasonable to provide that an infant soldier's will made in due form while out of actual service would be invalid, and that the same will made without form while with his regiment in service would be valid. His infancy is just as much a disability in fact in the one case as the other, and we see no reason why it should not be in law. In England no distinction existed between soldiers and civilians as to the age necessary to make a valid testament, but

only as to the mode of execution. Either might dispose of personal property by will after arriving at the age of fourteen years. When our statute limited the testamentary privilege to persons of full age, it continued the distinction as to the mode of execution which existed before, and for which there was reason. It did not create a new distinction for which no reason existed. Soldiers and civilians stand equal in the law as to the testamentary power or privilege, but the soldier is excused from observing certain forms in exercising his privilege out of consideration for the necessary embarrassments of his situation while in actual service.

This will was absolutely invalid, and its probate was at the least unauthorized. The disability arose not from unsoundness of mind, the question with relation to which must always be a matter of judgment. It was an absolute disability depending upon an arbitrary fact which is not disputed. If the statute had limited the right to make wills to males, the probate of the will of a female would have been as easily justified as this. Still we are not now prepared to say that the probate of the will of a person, who should afterwards prove to be a minor, is void, or that it could, except in extreme cases, or for that reason alone, be set aside, or that it ever should be set aside if the fact of the infancy was doubtful, or had been contested and tried in the probate court, or if the heir at law had had actual notice of the presentment of the will for probate. These points we do not discuss or decide. We think the facts of this case are sufficient to warrant the court in deciding it upon the plainer ground that the probate was so procured as to amount to a fraud upon the heir at law. The court of chancery should find the fact of fraud upon less evidence, and restrain the legatee from claiming under the probate for a less serious fraud than would ordinarily be held sufficient, when, as in this case, the infancy is conceded, and the heir at law entirely unaware of the proceedings, and the probate manifestly and glaringly wrong. It turns out, in this case, that the infant testator enlisted at the age of seventeen; that he was living at the time with the defendant Aaron Pike; that the said defendant procured himself to be appointed the minor's guardian, in order to consent to his enlistment. The infant was to have a bounty of five hundred dollars from the town of Searsburg; and while still residing in the guardian's family after enlistment, he went with this guardian to Wilmington, and there made a will, appointing the said Aaron Pike his executor, and Aaron Pike's wife his sole legatee. The soldier went to the front, and soon died at Port Hudson. His father, who was his heir at law, knew neither of his enlistment, nor his death, until after the defendant Pike had procured the will to be probated. It is not claimed that the defendants made the least effort to notify the orator of his son's death, and the probate was thus effected at the interested instance of the husband of the sole legatee. The defendants concede that they knew of the alleged testator's infancy, and they do not claim to have brought the fact to the notice of the probate court, or that the court was otherwise informed of it. Taking all the facts together we are satisfied that the withholding from the probate court of all knowledge of this material fact was wilful, and for a corrupt purpose, and the pro