Jones v. Jones

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 7 N.E.2d 1015,297 Mass. 198
• Parties: JONES et al. v. JONES et al.
• Decision Date: 10 April 1937

297 Mass. 198
7 N.E.2d 1015

JONES et al.
v.
JONES et al.

Supreme Judicial Court of Massachusetts, Norfolk.

April 10, 1937.

Report from Probate Court, Norfolk County; McCoole, Judge.

Petition in equity by Janet H. Jones and Margery Jones against Bradford Jones and others. On report from Probate Court.

Petition dismissed without prejudice to rights to an accounting in probate.

[7 N.E.2d 1016]

A. W. Blakemore, of Boston, for petitioners.

R. B. Heavens, of Boston, for respondents.

FIELD, Justice.

This is a petition in equity brought in the Probate Court. The petitioners are Janet H. Jones and Margery Jones, respectively widow and daughter of Everett Jones, deceased, beneficiaries of a trust created by the will of said Everett Jones. The respondents are Bradford Jones-son of Everett Jones by a marriage prior to his marriage to Janet H. Jones-also a beneficiary of said trust, and the trustees of said trust-the petitioner Janet H. Jones, and Frank H. Winter-appointed under said will by the Probate Court. The petition alleges an improper payment to the respondent Bradford Jones of property of the trust by the trustees thereof, said Janet H. Jones and Louis E. Flye, now deceased-who was succeeded in the trust by the respondent Frank H. Winter-and contains prayers for specific relief in various forms and a prayer for general relief. The respondent trustees filed answers. The respondent Bradford Jones

[7 N.E.2d 1017]

demurred to the petition on the grounds that ‘if the payment alleged was made the trustees must account for it in their accounts and this Court has no jurisdiction in equity to entertain matters involving items of Probate Accounts until the accounts have been allowed,’ that the ‘propriety of the payment from the estate as alleged is a matter to be settled on the accounts,’ and that the ‘plaintiffs have full, complete and adequate remedy through adjudication of the Probate Accounts.’ This respondent, also, without waiving his demurrer, filed an answer. The demurrer was overruled. No appeal was taken from the order overruling the demurrer. The probate judge then made findings of fact and reserved and reported ‘all questions of law therein for consideration of the full court.’ G.L.(Ter.Ed.) c. 215, § 13. The pleadings and the findings of fact are made a part of the report.

The findings of fact include the following: Elizabeth C. Lowe was the owner of a certain parcel of land at 1658 Beacon Street, Brookline. She married Everett Jones on June 1, 1900. Thereafter she bought with her own money a parcel of land at 1664 Beacon Street, Brookline. Her husband, with his own money, built a house on each of these parcels. Mrs. Jones died in 1908. By her will, dated July 12, 1902, which was duly allowed, she gave all her property to her husband. Their only child, the respondent Bradford Jones, was born March 5, 1904. On November 7, 1911, Everett Jones married the petitioner Janet H. Jones. They had one child, the petitioner Margery Jones, born December 7, 1912. Everett Jones died April 25, 1919. By his will, after giving certain legacies, he gave the residue of his property, with a power of sale, to trustees therein named to pay the income thereof in equal shares to his wife and two children with further provisions for payment of income if his wife should remarry, and provisions for distribution of the principal. See Flye v. Jones, 283 Mass. 136, 186 N.E. 64. The executors of this will and subsequently the trustees thereunder inventoried both parcels of real estate above described as the property in fee of the testator.

A claim was made upon the trustees in behalf of the respondent Bradford Jones ‘that he was entitled to an intestate portion of said real estate left by his mother.’ Following negotiations with the trustees ‘an agreement was entered into which was never put in writing but was evidenced by two deeds which were executed’ by Bradford Jones. By one of these deeds dated August 27, 1925, he purported to convey to the trustees all his right, title and interest in the real estate at 1664 Beacon Street. By the other deed, of the same date, he purported to convey to the trustees his ‘two undivided third parts' of the real estate numbered 1658 Beacon Street, upon trust, however, that ‘the Trustees and their successors will not sell the said property without at first obtaining in writing the consent of the said Bradford Jones, or his heirs, executors, or assigns,’ and that ‘when the above described property is sold, the net proceeds of the two undivided third parts * * * shall be paid to the said Bradford Jones, or his heirs, executors, administrators, or assigns.’ The Probate Court granted a license to sell the real estate on November 3, 1930, and on the sale thereof the trustees paid the respondent Bradford Jones ‘the sum of $15,384 less loans and charges then standing against him, this sum being reckoned as two-thirds interest in the sale price of 1658 Beacon Street.’

The respondent Bradford Jones ‘is not of financial ability to repay the amount paid him out of the proceeds of the sale of the Beacon Street property.’ Items representing the payment of $15,384 by the trustees to the respondent Bradford Jones were included in an account filed in the Probate Court and a hearing has been had on this and other accounts of the trustees, but it does not appear that they have been allowed. The probate judge states in this finding of facts: ‘An adjudication of said accounts as they stand would not entitle these petitioners to an order ordering Bradford Jones to refund to the trust fund the aforesaid $15,384.’

The petition contains prayers that ‘the indebtedness of this respondent Bradford Jones to the said Trustees * * * in the sum of $15,384 and interest thereon be determined and adjudicated,’ that the respondent trustees ‘be ordered to charge the amount claimed above against said Bradford Jones against the income of and principal of said Estate of Everett Jones otherwise payable to Bradford Jones up to the amount which may be found to be due,’ and that these trustees ‘be ordered to reach and apply the interest of Bradford Jones under the Estate of Everett Jones to the full payment of said sum of $15,384 and interest.’

No argument or brief is presented in behalf of the respondent trustees. The respondent Bradford Jones (hereinafter referred

[7 N.E.2d 1018]

to as the respondent) contends that the petition cannot be maintained and, more specifically, that the Probate Court had no jurisdiction thereof. The petitioners argue that the contention that the Probate Court was without jurisdiction is not open on this report, but that if open it is without merit and that, on the facts found, they are entitled to relief.

First. The question of jurisdiction is open for consideration.

The point can be raised at any stage of the proceedings, even in this court, though not brought here by appeal from the interlocutory order overruling the demurrer or specifically reported. Morse v. O'Hara, 247 Mass. 183, 185, 142 N.E. 40;Board of Assessors v. Suffolk Law School (Mass.) 4 N.E.(2d) 342. The interlocutory order, though not appealed from, is not binding on this court, as the law of the case, on the matter of jurisdiction. The respondent by failing to appeal did not, because he could not, waive this question so as to confer jurisdiction of the case on the Probate Court if not vested therein by law. Fourth National Bank of Boston v. Mead, 214 Mass. 549, 551, 102 N.E. 69;Eaton v. Eaton, 223 Mass. 351, 364, 124 N.E. 37, 5 A.L.R. 1426;Morse v. O'Hara, 247 Mass. 183, 142 N.E. 40. And the doctrine of res judicata is not applicable to an interlocutory decision. New York Central & Hudson River Railroad Co. v. T. Stuart & Son Co., 260 Mass. 242, 248, 157 N.E. 540. So far, however, as the defence set up by the demurrer was that the petitioners had an adequate remedy at law it was waived by the respondent by his going to trial on the merits and not appealing from the order overruling such demurrer. This defence not only must be seasonably set up but also must be constantly insisted upon. See De Veer v. Pierson, 222 Mass. 167, 174, 110 N.E. 154;Reynolds v. Grow, 265 Mass. 578, 580, 581, 164 N.E. 650. See also, Bauer v. International Waste Co., 201 Mass. 197, 200, 201, 87 N.E. 637;Allen v. Hunt, 213 Mass. 276, 279, 100 N.E. 552. The trustees also have at no time set up this defence, and must be regarded as having waived it. The question of adequacy of legal remedy is not specifically reported and, in the circumstances described, is not one of the ‘questions of law’ involved in the ‘findings of fact’ which are reported. The case of Harrell v. Sonnabend, 191 Mass. 310, 311, 77 N.E. 764, is distinguishable by reason of the different nature of the defence there involved, if not on other grounds.

Second. The Probate Court had jurisdiction of the petition.

Under G.L.(Ter.Ed.) c. 215, § 6, probate courts ‘have jurisdiction in equity, concurrent with the supreme judicial and superior courts, of all cases and matters relative to the administration of the estates of deceased persons, to wills * * * to trusts created by will or other written instrument and * * * to trusts created by parol or constructive or resulting trusts.’ The jurisdiction conferred on probate courts by this statute, however, is limited to ‘jurisdiction within the scope of general equity jurisprudence as to the cases and matters therein named.’ Abbott v. Gaskins, 181 Mass. 501, 505, 63 N.E. 933, 934. It does not extend to suits to reach and apply, though in relation to proceedings which are within the jurisdiction of probate courts on independent grounds such courts have ‘all the powers which the supreme judicial and superior courts have in relation to bills to reach and apply.’ G.L. (Ter.Ed.) c. 215, § 6A; Geen v. Old Colony Trust Co. (Mass.) 3 N.E.(2d) 9.

This petition is within the scope of general equity jurisdiction. Relief is sought on the ground that the real estate in Brookline was...