Johnson v. Smith's Adm'r

• Decision Date: 31 January 1859
• Citation: 27 Mo. 591
• Parties: JOHNSON AND WIFE, Defendants in Error, v. SMITH'S ADMINISTRATOR, Plaintiff in Error.
• Court: Missouri Supreme Court

27 Mo. 591

JOHNSON AND WIFE, Defendants in Error,

v.SMITH'S ADMINISTRATOR, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1859.

1. The trusts not reached or affected by the statute of limitations are those technical and continuing trusts that are not at all cognizable at law, but fall within the proper, peculiar and exclusive jurisdiction of courts of equity.

2. If a person, assuming to act as guardian for another, without any legal authority so to do, should receive moneys to be appropriated to the latter's benefit, the statute of limitations would commence to run immediately, unless the existence of a disability should prevent it.

Error to Callaway Circuit Court.

Boulware and Kouns, for plaintiff in error.

I. A guardian de son tort is a character unknown to the law. The court instructed the jury erroneously.

Jones and Hayden, for defendants in error.

I. No objection is made to the instructions in the motion for a new trial. (15 Mo. 515; 13 Mo. 215; id. 455; 26 Mo. 530.) Error in instructions cannot be reached by motion in arrest. (10 Mo. 698.) The court did not err in giving or refusing instructions. (19 Mo. 102; 18 Mo. 249; 17 Mo. 382, 49; 8 Mo. 522.)

RICHARDSON, Judge, delivered the opinion of the court.

William O. Johnson and wife, in May, 1857, presented, for allowance in the County Court, an account against Smith's estate for two sums of money received respectively in 1835 and 1845 by Smith, for the use of Mrs. Johnson before her marriage. Smith died in 1855. It appears that after the death of Robert Carter, who resided in Kentucky, Smith, who was the uncle of Carter's children, one of whom is Mrs. Johnson, received for the children a small sum of money, which they had inherited from the father; and he assumed to act, without appointment, as their guardian in the management and control of the same; and, at another time, he received in like manner a small estate, which descended to Carter's children from their grand-mother, who died in Virginia. Smith paid several of the children their shares; and, a short time before his death, admitted that he was indebted to Mrs. Johnson for money in his hands as her guardian. It may be assumed that Smith was never appointed guardian for Carter's children by any court or officer; for it is remarked in the brief of the plaintiff's counsel that “there is no pretense that he was a guardian strictissimi juris, but that he assumed to act in a fiduciary capacity.” Mrs. Johnson's age is not stated, and it is not shown that she was prevented from bringing her suit sooner by reason of any statutory disability. The court in effect instructed the jury, that the plaintiff's right of action was not barred by limitations if the deceased acted as Mrs. Johnson's guardian, or received the money for her while acting as such. The instruction is defended on the ground that the money was received by Smith in a fiduciary capacity, and that a trust was thereby created, which withdrew the plaintiff's demand from the operation of the statute of limitations.

The term trust, in its general sense, has a wide scope, and is applied to a great variety of the transactions of life. Every bailment is a trust, and the relation of trustee and cestui que trust is created whenever one person receives money for another's use, or engages to apply it to a particular purpose and fails to do so. In such cases a certain and ordinary remedy exists at law; and a defendant cannot be denied the protection of the statute by calling him a trustee, and suing him in a court of...