Upham v. Draper
Massachusetts Supreme Judicial Court
Contract, against the trustee under the will of George W. Upham, for money had and received. Trial in the Superior Court, before Maynard, J., who, at the defendant’s request, ruled that the action could not be maintained, and directed a verdict for the defendant; and the plaintiff alleged exceptions. The material facts appear in the opinion.
1Opinion of the CourtMorton, J.
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…
2Cases cited5 opinions
- Davis v. CoburnMassachusetts Supreme Judicial Court · 1880
- Johnson v. JohnsonMassachusetts Supreme Judicial Court · 1876
- Murray v. WoodMassachusetts Supreme Judicial Court · 1887
- Thorndike v. HinckleyMassachusetts Supreme Judicial Court · 1892
- Sewall v. PatchMassachusetts Supreme Judicial Court · 1882
3Cited by7 opinions
- Rolfe v. SwearingenCourt of Appeals of Texas · 1951
- Harmon v. WestonMassachusetts Supreme Judicial Court · 1913
- In Re Estate of Howard v. HoweSupreme Court of Missouri · 1939
- Capraro v. PropatiSupreme Court of New Jersey · 1940
- Taft v. StowMassachusetts Supreme Judicial Court · 1899
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