Jones v. Jones

• Decision Date: 12 April 1916
• Citation: 112 N.E. 224,223 Mass. 540
• Parties: JONES v. JONES et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

223 Mass. 540

112 N.E. 224

JONES

v.JONES et al.

Supreme Judicial Court of Massachusetts, Norfolk.

April 12, 1916.

Report from Supreme Judicial Court, Norfolk County.

Petition by Charles C. Jones against Carlos S. Jones and others to vacate a decree of the probate court. The petition being denied, petioner appealed, and a single justice reversed the decree of the probate court and reported the case. Decree of the probate court reversed.

Wm. R. Scharton, of Boston, and Jas. H. Maguire, of Jamaica Plains, for petitioner.

Harrison M. Davis, of Boston, for respondent Dedham Institution for Savings.

Jas. E. Gardner, Jr., of Duluth, Minn., and Henry W. Durant, of Boston, for other respondents.

CARROLL, J.

This is a petition to vacate a decree of the probate court of June 19, 1901.

The will of John Coffin Jones was duly proved and allowed in the probate court for the county of Norfolk, January 11, 1862. The rest and residue of his estate was given to a trustee, to pay the income to the testator's widow during her life, and on her death, to pay to each of his children ‘when and as they shall arrive at full age his or her share thereof or their heirs respectively.’

Mrs. Jones, the widow, died June 5, 1900, and thereupon the petitioner became entitled to one-sixth of the fund. He was, at this time, in the Philippine Islands, and did not learn of the death of his mother for many years.

After the death of the mother the then trustees, under a decree of the probate court, deposited in the Dedham Institution for Savings, in the name of the judge of probate for the benefit of the petitioner $12,751.94, his share of the fund, and filed the bank book in that court.

January 18, 1901, Carlos Selby Jones and George Herbert Jones presented a petition to the probate court reciting that Charles C. Jones, the petitioner, died intestate prior to January 1, 1894, the exact date and place of his death being unknown; praying that the the sum of $12,751.94 might be paid to them as ‘sole heirs at law and distributees of your petitioner.’ June 19, 1901, a decree was entered on said petition which recites, that it appeared Charles C. Jones had died some time prior to January 1, 1894, that Carlos Selby and George Herbert Jones were his only children and heirs, and ordering said institution to pay over and transfer to them in equal shares the said amount with any accumulations thereon.

This petition to vacate the decree of June 19, 1901, was dismissed in the probate court. On appeal to this court, the single justice on the evidence submitted, which included the testimony of the petitioner Charles C. Jones, found the material facts to be as stated in the petition; he ordered the decree of the probate court to be vacated, and reported the case upon the findings and pleadings. It is well settled that probate courts have the power to correct errors or mistakes in their own decrees, and when a decree is based upon a mistake of fact, as in the decree of the probate court in the case at bar, it should be amended. Waters v. Stickney, 12 Allen, 1, 90 Am. Dec. 122;McCooey v. N. Y., N. H. & H. R. R., 182 Mass. 205, 65 N. E. 62.

Inasmuch as this petition to vacate the decree was not brought until November 5, 1913, it is claimed the petitioner is guilty of laches, and for that reason there should be no correction of the decree. The single justice, in finding that all the material facts of the petition were true, found the petitioner did not learn of his mother's death, nor of the petition of his sons, until many years thereafter; that he was unable to come to Massachusetts or to prove his identity without coming to Massachusetts; that he used all due diligence in bringing this petition after learning of the proceedings and the decree. The single justice heard the evidence, it is not reported and it is not before us; obviously, we cannot say his conclusion was wrong. See Tucker v. Fisk, 154 Mass. 574, 28 N. E. 1051;Sunter v. Sunter, 190 Mass. 449, 77 N. E. 497;Dickinson v. Todd, 172 Mass. 183, 51 N. E. 976.

The petitioner relies on the case of Jochumsen v. Suffolk Savings Bank, 3 Allen 87, where a decree appointing an administrator over the estate of a living person was declared to be void ab initio; he argues that the decree, directing the payment of the fund to his sons, was void and of no effect from its inception, therefore, not only should it be vacated but the Dedham Institution for Savings which acted in obedience to it should be ordered to restore the money to him.

In the Jochumsen Case the decree was void, because the probate court assumed a power not given it by law. It was not merely a mistaken use of its jurisdiction, it was an assumption of jurisdiction where it had none. Rev. Sts., c. 64, § 4, now R. L. c. 137, § 1, gave authority to appoint administrators upon the estates of deceased persons and the plaintiff being alive the decree was entirely void.

In the case at bar, there was a fund over which the probate court of Norfolk county had jurisdiction. It came under its jurisdiction by the father's will; and under R. L. c. 150, §§ 23-26, after the mother died it had the duty of preserving and distributing it to the rightful owners. Because the judge, through error or mistake, ordered payment of the money to those to whom it did not belong, it cannot be argued that he was without jurisdiction. He had jurisdiction over the fund, but he made an erroneous exercise of it, and in such a case the decree can be corrected, but it is not void from the beginning. See R. L. c. 136, § 3.

If the decree was one which the court had no power to make, or if there was no authority for the action of the court, there would be force in the plaintiff's contention. Davis v. McGraw, 206 Mass. 294, 92 N. E. 332,138 Am. St. Rep. 398;O'Herron v. Gray, 168 Mass, 573, 578, 47 N. E. 429,40 L. R. A. 498, 60 Am. St. Rep. 411.

The action of the court in ordering the distribution of the rest and residue of the estate of John Coffin...