157 Mass. 292 | Mass. | 1892
It is well settled that a cestui que trust cannot maintain an action for money had and received again'st his trustee under a testamentary trust while the trust is still open. But when the accounts have been closed, and nothing remains to be done on the part of the trustee but to pay over the money found due, then an action at law to recover such money may be maintained by the cestui que trust. Johnson v. Johnson, 120 Mass. 465. Davis v. Coburn, 128 Mass. 377. Murray v. Wood, 144 Mass. 195. Thorndike v. Hinckley, 155 Mass. 263.
The difficulty with the plaintiff’s ease is, that, though according to the accounts as they now stand there may appear to be a balance due to the plaintiff from the defendant, the trust under which the money originally came into the hands of the defend
The plaintiff insists that the account of June 2, 1886, conclusively fixed the amount due from the defendant to him, and that nothing remained for the defendant to do but to pay that amount over. To this there are several answers. The account did not purport to be a final account. It is called a second account. Again, under clause ten of the will, the defendant could hold the fund till he deemed it safe and prudent to pay it to the plaintiff, not exceeding five years from bis majority. There is nothing to show that this power was waived by the defendant, and this would bar an action till the expiration of five years. Further, the compromise agreement of June 2, 1886, expressly provides that the defendant “ may file and have allowed in the Probate Court a trustee’s account under said will, in which he shall be charged only for the sum of twenty-four hundred sixty-one dollars, to be held in trust for the use and benefit of Leonard Spring Upham [the plaintiff], under the fifth and tenth clauses of said will.” The account dated June 2,1886, is evidently the one referred to in this agreement, and the plain inference from the agreement is that the defendant is to continue to hold the sum named as trustee under the will. If the compromise agreement is to be set aside as between the plaintiff and defendant, then clearly the' relation between them would be that of cestui que trust and trustee under the will, with an unsettled account also in that event between them,
The account dated June 2, 1886, with the annexed schedules, and the account between the defendant and the plaintiff, showing a balance due the former, were rightly admitted; the former account as containing admissions on the part of the plaintiff that the defendant was a continuing trustee under the will, and the latter as showing that, if the plaintiff was entitled to maintain his action, nothing was in fact due him. If he was not entitled to maintain his action, the admission of it could do him no harm.
The point that the answer of the defendant did not set out that he had a right to continue to hold the funds as trustee of the plaintiff, and that he was only liable to account in the Probate Court, does not appear to have been taken in the Superior Court, and cannot be taken here for the first time. The case appears to have been tried upon its merits.
Exceptions overruled.