338 HARVARD LAW REVIEW reimbursement if they choose to charge him. But grammatically a payment made under a mistake of fact is a voluntary payment, and yet of course money so paid can be recovered. The words " involimtary " and "voluntary" have been often used by judges as a test of recovery quasi contractually, and have caused endless con- fusion.^^^ The word "voluntary" furnishes no accurate guide for nonrecovery. As Baron Martin said of an overpayment of fees to a parish clerk for extracts made from the register of burials and baptisms, "this is more like the case of money paid without consideration — to call it a volimtary payment is an abuse of language." ^'^ In Pollock on Contracts,^^^ the learned author re- marks of money paid under circumstances of compulsion: "But in all these cases the foundation of the right to recover back the money is not the involuntary character of the payment in itself, but the fact that the party receiving it did no more than he was bound to do already, or something for which it was unlawful to take money if he chose to do it, though he had his choice in the first instance. Such pay- ments are then regarded as made without consideration. The legal effect of their being practically involuntary, though important, comes in the second place: the circumstances explain and excuse the conduct of the party making the pa)anent. Similarly in the kindred case of a payment under mistake the actual foundation of the right is the faUure of con- sideration, and ignorance of material facts accounts for the payment be- ing made." There seems no reason why the right of the personal representative here should not be the same as where a creditor, not a legatee or distributee, has been overlooked. / If a legatee or distributee is suing the beneficiary directly his right is more restricted than the creditor in two respects. First, it is stated that he must first exhaust the personal representative, unless perhaps the latter is insolvent.^*" For this there seems no adequate reason. The unsatisfied legatee or beneficiary, is just as much entitled to sue directly as the unsatisfied creditor. The "^ See Brown v. McKinally, i Esp. 64 (1795); Heiserman v. Burlington Ry. Co., 63 Iowa, 732, 18 N. W. 903 (1884); 111. Glass Co. v. Chicago Tel. Co., 234 III. 535, 85 N. E. 200 (1908); 3 III. L. Rev. 235. "8 Steele v. Williams, 8 Exch. 625, 632 (1853). "' 3 Am. ed. 732. MO Orr V. Kaines, 2 Ves. Sr. 194 (1750); i Roper, Legacies, 3 ed., 399. See Miller V. Stark, 29 S. C. 325, 7 S. E. 501 (1888).
