The opinion of the Court was drawn up by
Kent, J.The question in this case is, whether the ruling of the Judge, to whom the case was referred, with right to except, was corréct in the matter of law. The case finds, in brief, that there was due in money, from the administrator to the widow, $87,38; that all of the eight hundred dollars except the above amount, ordered to be paid to her, had been paid at different times, and separate receipts given therefor; *539that a demand was made on the administrator by the attorney for the widow, for the amount due; that the administrator was ready and offered to pay said sum, upon receiving a discharge in full; that the attorney for the widow offered to -take said sum and receipt therefor, but refused to give a discharge in full; that the administrator refused to pay without a receipt in full, or a discharge. It does not appear that the administrator offered to give up the former receipts.
On these facts, the Judge decided, as matter of law, that the widow was bound to give a discharge in full upon receiving her pay in full, and the administrator was not bound to pay without receiving such discharge or receipt in full, and thereupon ordered a nonsuit.
There is no doubt that, as a general principle, a person who undertakes to discharge an obligation or contract, by a tender or offer to pay, must make the tender absolute, unaccompanied by any condition. He cannot require a receipt or a release, and, if he does, the tender is invalid. Thayer v. Brackett, 12 Mass. 450; Loring v. Cook, 3 Pick., 48.
But this is not a case of a contract. The obligation to pay rests upon the decree and order of the Judge of Probate, making an allowance to the widow, and ordering the administrator to pay or deliver to her a certain amount of the personal property. That order, for a non-compliance with which this action is brought, was based on the statute as found in R. S. of 1857, c. 65, § 13. Both parties are bound by the decree and order. And it appears in the order, made part of the case, that the administrator was directed to take a proper receipt and discharge thereon, and to present the same on settlement, as evidence of the payment.
The intent and purpose of this order is manifest. It is that the widow should have the property or money, but should, on receipt, give the administrator written evidence of his having performed his duty, that he might exhibit the same on settlement. No particular form was required. The essential thing was such a receipt or discharge given into the possession and control of the administrator.
*540It appears that the administrator paid portions from time to time, and took receipts for the same. On the last demand or request, he was ready to pay, and the widow was ready to receive the sum which he alleged, and which the case finds, was due. The attorney for the widow, not probably knowing the exact amount due, or for some other reason, was unwilling to give a receipt in full discharge, but was ready to give one for the sum offered. If the defendant had paid him, and taken such receipt, that receipt, with the other receipts in his possession before given, and the amount of which he knew, would have exactly covered the $800 ordered to be paid, and would have been perfect vouchers for him before the Judge of Probate.
The law looks to the substance and not to the form. The decision of the Judge may, perhaps, be regarded as essentially correct in principle, that the administrator had a right to require receipts, and such receipts as would show that he had paid in full. The question is, were not such receipts as he had, with the one offered, when taken together, receipts in full, and sufficient evidence to protect him? We think they were, and that he ought to have paid over the money.
Exceptions sustained, and— Nonsuit taken off.
Tenney, C. J., and Appleton, Cutting, and Davis, J. J., concurred.