#### Seidel *v.*Guckert.

In an action of assumpsit for money had and received, by the guardian of a minor against the administrator of the minor’s mother, it appeared that the mother, in her life time, loaned to a third party $400, taking therefor a judgment note in her own name. To establish a trust, the plaintiff offered declarations of the mother, to several persons, that the -money belonged “to the boy.” After her death, her administrator collected the money and refused to pay it over to the minor’s guardian. *Held,*that the guardian was entitled to recover it in this action.

Jan. 18, 1889.

Error, No. 154, July T. 1888, to C. P. No. 1, Phila. Co., to review a judgment on a verdict for plaintiff, in an action of assumpsit for money had and received by Kari Guckert, guardian of Joseph Moeller, a miner, against Otto A. Seidel, Administrator of Othila Sanwald, deceased, at Dec. T. 1886, No. 544. Williams, J., absent.

The narr was in the common counts, with the following bill of particulars: Plaintiff claims, under the common counts of the narr, the sum of $440, had and received by defendant on or about Aug. 27, 1886, from Philip Maier, to and for the use of plaintiff, together with interest on the same. Pleas, non assumpsit, payment with leave, etc.

The evidence was to the following effect, on the trial before Biddle, J.:

On July 28, 1884, Mrs. Sanwald, then Mrs. Moeller, loaned Philip Maier the sum of $400 in cash, taking, as security for the loan, Maier’s judgment note of that date, payable in six months, and made to her individual order. Upon this note, judgment was entered by Mrs. Moeller, Sept. 2, 1885. Mrs. Moeller died Oct. 9, 1885, having previously intermarried with one Henry Sanwald. On Oct. 30, 1885, her death was suggested upon the record and her administrator, Otto A. Seidel, was substituted as plaintiff. On Aug. 23, 1886, an attachment sur judgment was issued by the administrator against the Redemptorist Fathers of Pennsylvania et ah, as garnishees. Whereupon the judgment debtor, Philip Maier, paid the amount of the judgment with interest, amounting in all to $440, to the counsel for Seidel. On Aug. 27, 1886, the attachment was discontinued. The money loaned to Maier by Mrs. Sanwald was drawn by her, for that purpose, from St. Bonifacius’ Church, where it was deposited in her own name. Witnesses called by the plaintiff testified that the decedent, Mrs. Sanwald, had, in her life-time, made the following declarations:

To Philip Maier: “The money [which she offered to loan Maier] was in the Church for the boy. It was left for him by his father, Mr. Moeller.”

To Margaret Remmert: “It [the money loaned Maier] belonged to the boy. The boy’s father left $2,000 when he died. The $400 was from his. father.”

To Anton Remmert: “She said it [the $400] belonged to the boy. It was from his father.”

*46To Julius Maier: “She said it [the $400] belonged to the boy. Was left by his father to him.”

Upon this testimony, the plaintiff rested his case. The defendant offered no evidence.

The defendant submitted the following points:

“ 1. There is no evidence in this case to show that the defendant ever had and received any money for or on account of the plaintiff or of his ward; and, under the pleadings filed, without such evidence, the plaintiff cannot recover. *Ans.*Refused.

“ 2. The evidence presented by the plaintiff is insufficient to establish a trust by the decedent in the judgment from which the fund in controversy arises. *Ans.*Refused.

“ 3. The fund in controversy, having been paid to and received by the defendant as administrator of the decedent under a claim of right thereto, the said administrator is responsible for such fund to the creditors of the decedent and to those entitled to take from her under the intestate laws of this Commonwealth, and to them only; and therefore the present action cannot be maintained against him in his representative capacity. *Ans.*Refused. -

“ 4. The evidence in this case shows no privity of contract between the plaintiff and the defendant, and, without such privity being shown, the plaintiff, in an action of assumpsit, cannot recover. *Ans.*Refused.

“ 5. Under all the evidence, the verdict of the jury must be for the defendant. *Ans.*Refused.”

The court charged as follows :

“ If you believe, under the evidence in this case, that the money belongs to this boy, I think he has a right to recover in this suit. This was the case of a mother who had married again, and she had on hand $400, which she said belonged to her son. Then this gentleman who borrowed the money came to her and she told him specifically she let him have the $400, because she had that amount in the Church and it belonged to her son, who had no use for it, and on the faith of that he took it. The note was taken in her name and could not be paid to anybody else, but [if you believe the evidence here that it was the son’s money she had invested for him, he is entitled to it, and therefore your verdict should be for the plaintiff.”]

*The assignments of error*specified, x — 5, the action of the court in declining defendant’s points, quoting them; and, 6, the portion of the charge within brackets, quoting it.

*James C. Sellers,*with him, *Chas. L. Bourguignon,*for plaintiff in error.

The action was brought to recover money alleged to have been had and received by the defendant after 'the death of the intestate, and after the granting of the letters of administration. For money, so received, he might be liable personally, but not as administrator. Griers. Huston, 8 S. & R. 402; Beeson *v.*McNabb, 2 *47Pa. 422; Solliday *v.*Bissey, 12 Pa. 347; Seip *v.*Drach, 14 Pa. 352.

The proof of the alleged trust rested entirely upon the declarations of the decedent to or in the presence of four persons. She did not say who the boy was to whom she referred,' nor was there any evidence to show how it was left, nor how it had come into her hands. It was deposited in her individual name in the Church, whence it was drawn to be loaned to Maier, again in her individual name.

While a trust in personalty may be proved by parol, the evidence required is of the higest degree, and great caution is used that the proof shall be clear and positive. Reed on Statute of Frauds, § 838; Tritt *v.*Crotzer, 13 Pa. 450; Brickell *v.*Earley, 115 Pa. 473.

Where it is sought to prove a trust by declarations of the alleged trustee, such declarations must be clear and explicit, and point out with certainty both the subject-matter of the trust and the person who is to take the beneficial interest. Not only must the declarations be clear and preponderating, but they must be corroborated. Perry on Trusts, § 77; Reed on Statute of Frauds, § 839.

The defendant found, among the assets of his intestate, this judgment, standing in her individual name, and, as his duty re-, quired, proceeded to collect it by process of law. The money was claimed by him as assets of the estate, and, under this claim of right, was paid to and received by him. Having been so received, he is accountable for it to creditors and distributees, and. to them only. As administrator, he can be called to account by no one else.

Moreover, the money having thus been collected by him under a claim of right, there being no mistake as to the facts, it cannot be recovered back. Real Estate Saving Institution *v.*Linder, 74 Pa. 371; McCrickart *v.*Pittsburgh, 88 Pa. 133; Union Ins. Co. *v.*Allegheny, 101 Pa. 250.

There was no privity of contract between the plaintiff and defendant. Without such privity, an action of assumpsit cannot be maintained. Blymire *v.*Boistle, 6 Watts, 182; Finney *v.*Finney, 16 Pa. 380; Addison on Contracts, § 1040.

*Chas. Knittel,*for defendant in error, not heard.

This is substantially a claim against decedent’s estate for money received by her in her life time to the use of the minor, and not a claim arising from any wrongful act of the administrator. He collected the money, and, when he had so collected it as administrator, it was clearly his duty to act in the place of decedent and pay the same on demand of the guardian of the equitable owner.

Grier *v.*Huston, and Solliday *v.*Bissey, were on promises made by the administrator after the death of the intestate.

In Beeson *v.*McNabb, the suit was against the person who had been the acting executor of the estate, who received the money to pay the widow by order of the orphan’s court.

*48Jan. 18, 1889.

In Seip *v.*Drach, it was decided that no judgment de bonis testatoris could be obtained against an executor on a count for money-had and received by him as executor, to and for the use of the plaintiff, because there was nothing in the count to indicate that the action was brought to recover a debt due by the decedent. But, as the case in hand is substantially a claim against the decedent’s estate, for money received by her in her lifetime to the use of the minor, the omission to allege the same in the common counts and the bill of particulars is cured by the verdict and judgment. Act of March 14, 1872, § 1, P. L. 25, Purd. 94, pi. 7; Jones *v.*Freyer, 33 W. N. C. 365.

A declaration by a person, on investing money on a mortgage, “that a security was to be made in the name of his brother Job, as he intended the mortgage to be for his benefit, and that it would then be his,” has been considered sufficient. And, in like manner, a trust was decreed on a verbal declaration, that an investment of stock was in trust for four children equally. Hill on Trustees, p. 60.

A cestui que trust can maintain suit, in his own name, against the trustee. Tritt *v.*Crotzer, 13 Pa. 450.

Per Curiam,

Judgment affirmed.