Derome v. Vose

140 Mass. 575 | Mass. | 1886

C. Allen, J.

Upon the conceded facts, the defendant holds the money sued for upon a simple trust, with no interest or duty except to pay it over to the cestui que trust on demand. Under such circumstances, an action for money had and received lies to recover it. Gould v. Emerson, 99 Mass. 154, 157. Johnson v. Johnson, 120 Mass. 465. 2 Perry on Trusts, § 843.

The defendant denies the validity of the appointment of Gile as guardian, on the ground that the plaintiff was not an inhabitant of Massachusetts at the time when the appointment was made. But this objection cannot be taken in the present action, since no want of jurisdiction appears on the record of the Probate Court. Pub. Sts. c. 156, § 4. McFeely v. Scott, 128 Mass. 16. We need not determine, therefore, whether the plaintiff could properly be deemed an inhabitant of Canada.

Exceptions sustained.