167 Mass. 77 | Mass. | 1896
The exceptions recite as follows: “ The plaintiff claimed and argued to the jury that, if a trust was created, it would not prevent him from recovering what was due from the defendant on the count for money had and received, and asked the court to rule that, if the money was deposited by the mother for the purpose of her support and burial, and the son drew it out and appropriated it to his own use without her knowledge or consent, the plaintiff could recover. No contention was made that any settlement of the trust had ever been made, but it was claimed by the plaintiff that it was still open' if there was a trust. The court declined to rule as requested, but did instruct the jury as follows: ‘ If the money was deposited upon a trust, and a trust was created and accepted, and the money was taken out by the son, the defendant, without the knowledge or consent of the mother and no subsequent assent on her part, then in this action the plaintiff cannot recover.’ Other instructions not excepted to were given by the court upon all phases of the case, including the subject matter of the trust and the question of gift and others.”
The defendant contends that a cestui que trust cannot maintain an action at law for money had and received against the trustee while the trust remains open : that it is only when the account of the trustee has been made up and the amount due has been ascertained or agreed upon, and nothing remains to be done on the part of the trustee but to pay over the amount found due, that an action at law can be maintained by the cestui que trust.
But there are trusts of various sorts. If there was a trust here, the whole beneficial interest was in Mrs. Henchey, and so long as she held the bank-book she could draw the money at any time from the bank and use it as she saw fit. It was a trust which she could revoke at any time before the defendant had acted as trustee by withdrawing the money or some of it and applying it to her support. It does not appear that