Peters, C. J.
The plaintiff presents a very meritorious claim, in this equitable action of money had and received, for the [473]*473recovery of the amount of a check on a Waterville bank, running to her for the sum of $5000, and executed by I)r. Benjamin L. Tibbetts of whose estate the defendants are executors. The consideration for the check was an indebtedness for that sum or more due her from him in his lifetime, the indebtedness growing out of their relations while engaged to be married to each other. The matrimonial engagement had existed between them for sixteen or more years, commencing in her earliest womanhood and ending when he died September 19th, 1892. He was a widower during the period of their engagement, and much her senior in years.
During their engagement a day for their marriage had been several times appointed by them, and when such day arrived he had habitually made some excuse for requesting its postponement. Finally, on Thanksgiving Day in 1889, upon his again failing to keep his agreement to be married on that day, feeling that her self-respect would no longer permit such repetitions of broken promises, and being strongly influenced thereto by the wishes of her mother, she resolved to discontinue further relations with him, and refused to again renew or continue their engagement of marriage. Shortly afterwards, however, besieged by his apparently sincere promises and protestations, she became induced to consent to a renewal of the engagement, in consideration of his agreement, expressly declared in the presence of her mother, that, if she would consent to a renewal of the engagement and a reasonable postponement of the marriage, and he should die before a marriage between them took place, he would provide her with an amount out of his estate which would be enough for her support for the rest of her life without labor. Thereupon the engagement continued, for better or worse, until he died, and they never were married to each other.
The sequel is told by Mr. Taylor, an uncle of the plaintiff, whose testimony we quote: “ I am an uncle to Dora M. White-house. (Í am knowing to the fact that for sixteen or seventeen years before his death Dr. Tibbetts was understood to be engaged to Miss Whitehouse,) and during all that time was on intimate terms with her and her family; that in the summer of 1892, dur[474]*474ing hot weather, I called one day on Dr. Tibbetts, and he said to me, when I went into his office and passed the time of day, ‘ Good morning, I am very glad you called for I have some important business with you, ’ and I replied, ‘ All right, ’ then the doctor said to me: ‘ There is a sealed package in my safe assigned to you, placed there for safe keeping, and that package I deliver to you in trust for Dora M. Whitehouse." I have not named Dora’s name in my will for the reason that what that package contains belongs to her; my brother knows all about this, and at my death he will open the safe and give the package to you, and I entrust you to give the package to Dora for the contents belong to her.’ I said, ‘ All right.’ Just previous to the words above stated I asked Dr. Tibbetts when I entered his office how he was, and he said, ‘Well, poorly; if something don’t take place in my favor pretty soon I can’t stand it a great while.’ That is all the conversation we had on that subject.
“On the morning just after Dr. Tibbetts’ death I was at the house and saw the doctor’s brother, Samuel Tibbetts, one of the executors, in presence of Dr. Mabry, and I said to Mr. Tibbetts: ‘ There is a package in that safe belongs to me, ’ and he replied: ‘ I have not time to get it now for we are in a hurry laying out the doctor; ’ said he: ‘I am coming down in a short time after the funeral to open the safe, and then I will hand it to you; I will notify you when I am coming, — what is your post office address?’ and I told him it was South Vassalboro. Said I: ‘ Give me a piece of paper and I will write it down, ’ and then Dr. Mabry said: ‘I know his post office address, and if you forget it I can tell you. ’ I answered: ‘ All right, ’ and that ended the conversation with us there. I received no notice of the time the safe was opened, and Tibbetts never did deliver to me the package which was in the safe. Afterwards, on or about the 3d of April, 1893, I had a talk with Tibbetts, the executor, in the office and in the presence of E. W. Whitehouse, and then demanded the package and check, but I never got it, as he declined to give it to me.
“Dr. Tibbetts died September 19, 1892.
“ The same day that Dr. Tibbetts delivered to me the package [475]*475in trust when I got home I said to Dora: ‘ I have got something to tell you,’ and she replied: ‘What is it?’ I said: ‘Dr. Tibbetts has left a package delivered to me in trust for you.’ (She replied: ‘ The doctor told me that if he died before we were married I should be well provided for. ’) Neither Dora nor I knew what the package contained until after the death of Dr. Tibbetts.
“ Dr. Mabry, S. S. Brown, Samuel Tibbetts and S. S. Ligbtbody were present when the safe was opened and saw Brown take and break open the package.”
Upon the interpretation to be given to the testimony of Mr. Taylor, in connection with the other facts previously stated, depends the question whether the present action is maintainable. It may not be amiss, however, to add that the plaintiff for all the time she was engaged to the doctor was attentive to his welfare and interests by a continual service expended in keeping his books and drawing off his accounts, doing his washing, mending and making clothes for him, and other like services.
When the interview was had with the uncle of the plaintiff by the doctor, only about a month before his death, the doctor evidently believed his last sickness was upon him, and he knew that the contemplated marriage was then a most improbable if not impossible thing. There may be some doubt if he ever intended to consummate the engagement by marriage, but her faith in him never failed, although it faltered at a time. • But he no doubt sincerely intended to keep his promise to provide sufficiently for her out of his estate. He calculated in his own mind that five thousand dollars would be equal to the provision promised her, and he drew the check for that amount as payment of that sum, or as security for its payment. The act speaks for itself with no uncertainty. He says “ this package belongs to her, ” thereby admitting his indebtedness to her for that amount.
There was, according to this evidence, at least a most significant constructive delivery of the package and its contents to Mr. Taylor, while he was in the office where the safe was in which the package was deposited; he assenting to the confidential instruc[476]*476tions imparted to him, and, although not knowing exactly what the package contained, believing that the contents were valuable, and appreciating the nature of the trust committed to him. The package thereafter remained in the safe until the doctor’s death, the latter intending to make, and undoubtedly supposing he had made, a sufficient and legal delivery of the package to the trustee. The plaintiff approved of the transaction when informed of it.
We might, no doubt, safely stop at this point in the discussion, allowing the validity of the check to depend on a declaration of trust which is exhibited by the case, according to the principle in equity settled in the late case of Bath Savings Institution v. Hathorn, 88 Maine, 122, and Norway Savings Bank v. Merriam, Idem, 146.
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Peters, C. J.
The plaintiff presents a very meritorious claim, in this equitable action of money had and received, for the [473]*473recovery of the amount of a check on a Waterville bank, running to her for the sum of $5000, and executed by I)r. Benjamin L. Tibbetts of whose estate the defendants are executors. The consideration for the check was an indebtedness for that sum or more due her from him in his lifetime, the indebtedness growing out of their relations while engaged to be married to each other. The matrimonial engagement had existed between them for sixteen or more years, commencing in her earliest womanhood and ending when he died September 19th, 1892. He was a widower during the period of their engagement, and much her senior in years.
During their engagement a day for their marriage had been several times appointed by them, and when such day arrived he had habitually made some excuse for requesting its postponement. Finally, on Thanksgiving Day in 1889, upon his again failing to keep his agreement to be married on that day, feeling that her self-respect would no longer permit such repetitions of broken promises, and being strongly influenced thereto by the wishes of her mother, she resolved to discontinue further relations with him, and refused to again renew or continue their engagement of marriage. Shortly afterwards, however, besieged by his apparently sincere promises and protestations, she became induced to consent to a renewal of the engagement, in consideration of his agreement, expressly declared in the presence of her mother, that, if she would consent to a renewal of the engagement and a reasonable postponement of the marriage, and he should die before a marriage between them took place, he would provide her with an amount out of his estate which would be enough for her support for the rest of her life without labor. Thereupon the engagement continued, for better or worse, until he died, and they never were married to each other.
The sequel is told by Mr. Taylor, an uncle of the plaintiff, whose testimony we quote: “ I am an uncle to Dora M. White-house. (Í am knowing to the fact that for sixteen or seventeen years before his death Dr. Tibbetts was understood to be engaged to Miss Whitehouse,) and during all that time was on intimate terms with her and her family; that in the summer of 1892, dur[474]*474ing hot weather, I called one day on Dr. Tibbetts, and he said to me, when I went into his office and passed the time of day, ‘ Good morning, I am very glad you called for I have some important business with you, ’ and I replied, ‘ All right, ’ then the doctor said to me: ‘ There is a sealed package in my safe assigned to you, placed there for safe keeping, and that package I deliver to you in trust for Dora M. Whitehouse." I have not named Dora’s name in my will for the reason that what that package contains belongs to her; my brother knows all about this, and at my death he will open the safe and give the package to you, and I entrust you to give the package to Dora for the contents belong to her.’ I said, ‘ All right.’ Just previous to the words above stated I asked Dr. Tibbetts when I entered his office how he was, and he said, ‘Well, poorly; if something don’t take place in my favor pretty soon I can’t stand it a great while.’ That is all the conversation we had on that subject.
“On the morning just after Dr. Tibbetts’ death I was at the house and saw the doctor’s brother, Samuel Tibbetts, one of the executors, in presence of Dr. Mabry, and I said to Mr. Tibbetts: ‘ There is a package in that safe belongs to me, ’ and he replied: ‘ I have not time to get it now for we are in a hurry laying out the doctor; ’ said he: ‘I am coming down in a short time after the funeral to open the safe, and then I will hand it to you; I will notify you when I am coming, — what is your post office address?’ and I told him it was South Vassalboro. Said I: ‘ Give me a piece of paper and I will write it down, ’ and then Dr. Mabry said: ‘I know his post office address, and if you forget it I can tell you. ’ I answered: ‘ All right, ’ and that ended the conversation with us there. I received no notice of the time the safe was opened, and Tibbetts never did deliver to me the package which was in the safe. Afterwards, on or about the 3d of April, 1893, I had a talk with Tibbetts, the executor, in the office and in the presence of E. W. Whitehouse, and then demanded the package and check, but I never got it, as he declined to give it to me.
“Dr. Tibbetts died September 19, 1892.
“ The same day that Dr. Tibbetts delivered to me the package [475]*475in trust when I got home I said to Dora: ‘ I have got something to tell you,’ and she replied: ‘What is it?’ I said: ‘Dr. Tibbetts has left a package delivered to me in trust for you.’ (She replied: ‘ The doctor told me that if he died before we were married I should be well provided for. ’) Neither Dora nor I knew what the package contained until after the death of Dr. Tibbetts.
“ Dr. Mabry, S. S. Brown, Samuel Tibbetts and S. S. Ligbtbody were present when the safe was opened and saw Brown take and break open the package.”
Upon the interpretation to be given to the testimony of Mr. Taylor, in connection with the other facts previously stated, depends the question whether the present action is maintainable. It may not be amiss, however, to add that the plaintiff for all the time she was engaged to the doctor was attentive to his welfare and interests by a continual service expended in keeping his books and drawing off his accounts, doing his washing, mending and making clothes for him, and other like services.
When the interview was had with the uncle of the plaintiff by the doctor, only about a month before his death, the doctor evidently believed his last sickness was upon him, and he knew that the contemplated marriage was then a most improbable if not impossible thing. There may be some doubt if he ever intended to consummate the engagement by marriage, but her faith in him never failed, although it faltered at a time. • But he no doubt sincerely intended to keep his promise to provide sufficiently for her out of his estate. He calculated in his own mind that five thousand dollars would be equal to the provision promised her, and he drew the check for that amount as payment of that sum, or as security for its payment. The act speaks for itself with no uncertainty. He says “ this package belongs to her, ” thereby admitting his indebtedness to her for that amount.
There was, according to this evidence, at least a most significant constructive delivery of the package and its contents to Mr. Taylor, while he was in the office where the safe was in which the package was deposited; he assenting to the confidential instruc[476]*476tions imparted to him, and, although not knowing exactly what the package contained, believing that the contents were valuable, and appreciating the nature of the trust committed to him. The package thereafter remained in the safe until the doctor’s death, the latter intending to make, and undoubtedly supposing he had made, a sufficient and legal delivery of the package to the trustee. The plaintiff approved of the transaction when informed of it.
We might, no doubt, safely stop at this point in the discussion, allowing the validity of the check to depend on a declaration of trust which is exhibited by the case, according to the principle in equity settled in the late case of Bath Savings Institution v. Hathorn, 88 Maine, 122, and Norway Savings Bank v. Merriam, Idem, 146. But we think this case has stronger grounds to rest upon than those cases have, and that, while he resorted to some of the forms of a trust in order to effectuate his intention, the doctor was endeavoring, by what he did, to secure to the plaintiff the payment of five thousand dollars which he conceived would be due her under his agreement that he would provide her with enough out of his estate to support her without labor on her part during her lifetime. The sum due her from the nature of such a contract would be a claim against his estate after his death; but the contract was a subsisting obligation binding him while he lived. An action would lie on the original contract, or on the check tendered by him as a settlement and payment of such contract, and accepted by the plaintiff accordingly.
To be sure, the“check did not come to her hands in the lifetime of the drawer. Nor did it need to in order to be valid by delivery. The delivery to the uncle inured to the benefit of the niece, on the principle that where a deed or other instrument of title is delivered by a grantor in his lifetime to a third person with directions to deliver the same to the grantee after the grantor’s death, and such after-delivery is made, the title under such deed or instrument takes effect at the date of the first delivery. This is because of the effect of the relation between the two acts of delivery. Says Chief Justice Shaw, in Foster v. Mansfield, 5 Met. 412, where the principle is clearly discussed: “ When the future delivery is to [477]*477depend, on the payment of money or the performance of some other condition, it will be deemed an escrow. When it is merely to await the lapse of time, or the happening of some contingency, and not the performance of any condition, it will be deemed the grantor’s deed presently.” In the case cited it was a deed of land which received a first and a second delivery. But the doctrine is just as logically applicable in the case of the delivery of a bond, check, note, certificate of stock, or any other instrument or muniment of title.
It is argued that the second delivery never took place inasmuch as the check did not at any time, even after the doctor’s death, come into the hands of the plaintiff. The answer to such suggestion is that her demand for the check and the defendants’ refusal to deliver it was in effect equivalent to a second delivery. Equity would have compelled any person having the check to surrender it to the plaintiff, and the law would allow an action for its conversion against any persons who had secreted or despoiled the same. The defendants are estopped from asserting such a point of defense.
Nor can the defense successfully rely on the doctrine that a check cannot be the subject of a donatio mortis causa unless the check be presented and paid in the lifetime of the donor; a check, not supported by value received, being considered under such circumstances as of a testamentary character. That is, a man may not donate what is merely his own naked promise. The objection does not lie here because the check in the present instance was not a gift of any kind, but a contract founded on a full and even overflowing consideration. Mr. Perry, in his book on Trusts, (vol. 1, § 95,) says: “Where an agreement is entered into for a valuable and legal consideration, and a trust is intended, the mere form of the instrument is not very material, for if the trust is not perfectly executed or created by the instrument, a court of equity may enforce it as a contract.” The case of Morrill v. Peaslee, 146 Mass. 460, in some of its features bears a resemblance to the present case. It appeared there that a married woman separated from her husband for extreme cruelty practiced upon her by him, [478]*478and had applied for a divorce and alimony. During the pendency of the divorce proceedings, she was induced to return to cohabitation with him on his giving a note for $5000, to a trustee for her benefit, the note not to be collected during his lifetime, but after-wards out of his estate, provided she cohabited with him thereafter so long as he lived, and she did so. A majority of the court refused to sustain an action brought by the trustee on the note against the executors of the husband, but only on the ground that there was no consideration for the note, inasmuch as it was her duty to return to her husband if she could live with him. Three members of the court dissented in a separate opinion, which Mr. Perry, in the section of his work before cited, characterizes as “far weightier” than the opinion of the court.
The plaintiff was the legal owner of a check, or if not the legal surely the equitable owner, which amounted to an appropriation of $5000 for her use by the drawer of such check, according to the case of Emery v. Hobson, 63 Maine, 32; and in equity was an assignment of so much of the drawer’s funds as amounted to that sum, according to the case of National Exchange Bank v. McLoon, 73 Maine, 498 ; and those funds have been wrongfully covered into the estate of the drawer of the check by his executors. Those funds should be restored to the true owner, and the law and equity conspire together in requiring such restoration.
It is immaterial that the check turned out, either by design or mistake, to bear a date some months later than the date of the death of the person executing it.
The amendment to the declaration, to which an exception was taken, becomes of no consequence, as the verdict is sustained without the aid of any amendment. ,,
Motion and Exceptions overruled.