Samuel Pillsbury died February 6, 1890. On January 28, previous, he signed a check payable to his daughter, Frances E. Hurley, of the following tenor : "Rockland, Me., Jan. 28, 1890. Pay to the order of F. E. Hurley, Trustee, one thousand dollars for a monumental fund. To act without bonds.”
The check was afterwards paid to the trustee. The administrator of Pillsbury brings assumpsit against the payee of the check for money had and received. A nonsuit was ordered below, and the case comes up on exceptions.
The check created a trust in the daughter for a specific purpose, and she may in equity he compelled to administer the same, but the fund cannot be recovered from her in an action at law' by the adminstrator and the trust destroyed. As to the creation of trusts, see Bath Savings Institution v. Hathorn, 88 Maine, 122.
It is contended that the check is void from the incapacity of the maker to execute the same. If this were so, the contention might be sound, but it must be shown by evidence. The only witness called was the physician attending him during the last fourteen days of his life, and that wdtness does not pretend to have been present when the check was made, nor does he describe the mental condition of the maker at that time or at any other time. He says that the patient was afilicted with "disease of the kidneys, and diseases incident to old age — wearing down,” and that for fourteen days prior to his death', it wras necessary to administer morphine ; and that he did not think during that time the patient u7as capable of transacting business. Purely an opinion of no legal consequence. If the check would be avoided for incapacity of the maker, his condition should be shown, so that a jury might judge of the capacity for themselves. They
Exceptions overruled.