
    Alphonsine I. Derome vs. John Vose.
    Essex.
    Nov. 5, 1885.
    Jan. 11, 1886.
    Field & Devens, JJ., absent.
    A relief association issued a certificate to a member, in which it agreed to pay, on the death of the member, a certain sum to a third person, “ in trust ” for a daughter of the member. The third person collected the sum of the association. Held, that the guardian of the daughter could maintain an action, in the name of his ward, against such third person, for money had and received.
    Under the Pub. Sts. c. 156, § 4, it is no defence to an action by a guardian in the name of his ward, that his appointment as guardian in this Commonwealth was of no effect, because the ward did not reside here, unless the want of jurisdiction in the Probate Court to appoint appears of record.
    Contract for money had and received, brought by Wilbur F. Gile, as guardian, in the name of his ward, to recover $5000. Writ dated May 4, 1885. The answer contained a general denial ; and alleged that, in the appointment of the guardian, the Probate Court had no jurisdiction, as the ward was living in Canada at the date of the appointment. Trial in the Superior Court, before Staples, J., who allowed a bill of exceptions, in substance as follows:
    The plaintiff called Mary I. Derome, who testified as follows: “ I was married to Thomas A. Derome in 1877, at Medford, and shortly after we went to reside at Boston, where we lived together down to November, 1881, when I left my husband, and went to reside at Lawrence, where I was born, and where, since November, 1881, I have resided with my mother. When I went back to Lawrence I intended to make my home there, and have ever since had such intent, and made it my residence. We had only one child, a daughter, named Alphonsine Isabell Derome, now seven years of age. When I left my husband, our daughter remained in his custody, at Boston. Mr. Gile was appointed guardian of my child, at my request, after the death of my husband, who died at Boston, October 14, 1884, in an asylum for the insane, where he had been confined some six or eight months prior to his death." Upon cross-examination, the witness testified that, both before and since the death of her husband, she had endeavored to obtain the custody of the child; that she was informed by the defendant that the child was sent to a sister of the father, at a convent in Montreal, in 1882, where she had since remained; that the defendant told her the father desired the child to be educated there; that she only knew what the defendant told her about it; that she knew her husband had a sister who was a member of the order, in charge of a convent at Montreal; that her child was not sent there with her knowledge or consent; that her husband was a Frenchman, who at one time kept a jeweller’s store in Boston ; and that she left him because she could not live with him on account of his treatment of her.
    The plaintiff introduced in evidence a certificate of membership issued to Thomas A. Derome by the New England Relief Association, a corporation duly established under the laws of this Commonwealth, by the terms of which the association agreed to pay a sum equal in amount to the number of the surviving members of the association, not exceeding $5000, within sixty days after due notice and proof of the death of Thomas A. Derome, “to John Vose, in trust for Alphonsine Isabell Derome, daughter.”
    The plaintiff also introduced in evidence a decree of the Probate Court, dated January 12, 1885, appointing Wilbur F. Gile, of Lawrence, guardian of the plaintiff, who was described therein as “ of Lawrence.”
    The defendant admitted that, on March 31,1885, he received from the New England Relief Association, under said certificate, the sum of $5000, for which he gave a receipt.
    The plaintiff called Wilbur F. Gile, who testified that, in January, 1885, after his appointment as guardian, he made a demand upon the defendant for all of the estate of his ward in the defendant’s possession; that, on April 14, 1885, he gave to the defendant a certified copy of his appointment as guardian, and then demanded the $5000 received by the defendant of said association; and that the defendant refused to comply with each of said demands, and, at the last-named interview, said he should not give up the money to the witness until compelled so to do by the courts.
    The plaintiff admitted that, at the date of said appointment, she had no estate in this Commonwealth, except her interest in said certificate in the possession of the defendant, who lived in Boston; that Thomas A. Derome was a native of Canada, and came to this Commonwealth about fifteen years ago, where he lived down to the time of his death; and that, when said certificate was issued, he was in the employ of the defendant.
    The defendant asked the judge to direct the jury to return a verdict for the defendant, upon the grounds that the Probate Court had no jurisdiction to appoint a guardian of the plaintiff, and because it appeared that the defendant held said sum of $5000 under an express trust.
    The judge ruled that the action could not be maintained; and ordered a verdict for the defendant. The plaintiff alleged exceptions.
    
      JE. T. Burley, for the plaintiff.
    
      J. T. Wilson, for the defendant.
   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.  