| Mass. | Jul 11, 1899
Upon the facts found we think that the plaintiff’s remedy is clearly in equity. The case is not one where all that remained to be done was the payment of an ascertained sum with interest, as, for instance, in Buttrick v. King, 7 Met. 20. It is found that the testatrix received the money in trust to be invested and held by her for the plaintiff until the plaintiff became of full age, or, at the election of the trustee, until the latter’s death. Pursuant to the trust the money was deposited by the trustee in the Provident Institution for Savings with the knowledge and assent of the plaintiff. Subsequently it was
The bill as framed is very meagre, and with advantage might have set out the facts more fully. But sufficient appears from it to show that there was a trust; that the fund impressed with the trust passed to the defendant as executor; and that the trust is still open. An action for money had and received could not ■be maintained by the plaintiff, and the plaintiff would not have a plain and adequate remedy at law. Norton v. Ray, Davis v. Coburn, Johnson v. Johnson, and Upham v. Draper, ubi supra; Perry, Trusts, (4th ed.) § 843. The demurrer was rightly overruled.
The cause set out in the declaration in the action at law is the same, we think, as that set out in the bill in this suit, though stated somewhat differently. In each case the plaintiff seeks to recover the sum of $1,000 with its accumulations, alleged to have been held in trust for her by the testatrix during the life of the latter, and there is no claim that more than $1,000 with its accumulations was ever so held by her.
We also think that the action at law was defeated by a defect in form, (Taft v. Stow, 167 Mass. 363" court="Mass." date_filed="1897-01-08" href="https://app.midpage.ai/document/taft-v-stow-6425814?utm_source=webapp" opinion_id="6425814">167 Mass. 363,) and that the provisions of Pub. Sts. c. 136, § 12, apply. The original of that section was St. 1855, c. 157, § 1, subsequently re-enacted in Gen. Sts. c. 97, § 7, and again in the Public Statutes with some change in each case by way of condensation of the previous statute, but without any intóntion, we think, to change the scope of the law as it originally stood. It is plain that this case would have come within the terms of that statute, and we think that the present statute should be construed so as to include it. Moreover, this construction would put this section in harmony with Pub. Sts. c. 197, § 13, as St. 1855, c. 157, § 1, was no doubt
The result is that we think that the conclusion to which the Superior Court came was correct, but that the terms of the decree should be modified so that the plaintiff should recover of the defendant, as he is the executor of the will of Lucinda E. Phillips, the principal sum which is found due, and that execution should issue as at common law for the sum so found due against the goods and estate of said Lucinda E. Phillips, deceased, in the hands of said Stow as executor, and that another execution for costs, to be taxed by the clerk, issue against said Stow personally. Tyler v. Brigham, 143 Mass. 410" court="Mass." date_filed="1887-01-10" href="https://app.midpage.ai/document/tyler-v-brigham-6422306?utm_source=webapp" opinion_id="6422306">143 Mass. 410.
So ordered.