Weston v. Jones, 23979.

• Decision Date: 20 June 1924
• Docket Number: No. 23979.,23979.
• Citation: 160 Minn. 32,199 N.W. 431
• Parties: WESTON v. JONES.
• Court: Minnesota Supreme Court

160 Minn. 32

199 N.W. 431

WESTON

v.JONES.

No. 23979.

Supreme Court of Minnesota.

June 20, 1924.

Appeal from District Court, St. Louis County; C. R. Magney, Judge.

Action by Ruby J. Weston, trustee, against George Herbert Jones. Judgment for plaintiff, and from an order denying his motion for amended findings or for a new trial, defendant appeals. Reversed and remanded, with directions.

Syllabus by the Court

Money belonging to the person represented by the respondent was paid to the appellant in compliance with the decree of a court of competent jurisdiction entered under a mistake of fact. More than six years after the money was paid this action was brought for its recovery. The statute of limitations was pleaded as a bar. Held:

That the statute begins to run when the cause of action accrues, and the courts have no power to extend or modify the periods of limitation provided therein. When once it begins to run it will not cease to do so by reason of any event not within the saving of the statute.

In the absence of fraudulent concealment, the running of the statute is not prevented, although the party having a right of action was ignorant of its existence.

It is not the policy of the law to permit a party to postpone the operation of the statute indefinitely by failing to do an act within his power which is necessary to perfect his remedy. Where a condition precedent to bringing suit is not a part of the cause of action, but merely a step in the remedy, the preliminary step should be taken within the period fixed by the statute for the commencement of the action.

The erroneous decree under which the money was paid prevented respondent's assignor from availing himself of his remedy for the recovery of the money, but the vacation of the decree was merely a condition precedent to the exercise of the right of action, and not a part of the cause of action, and did not delay the running of the statute.

Remedies are governed by the law of the forum.

Principle that remedies are governed by law of the forum controls all matters relating to statute of limitations. Geo. H. Spear and Jas. E. Gardner, Jr., both of Duluth, for appellant.

McClearn & Gilbertson, of Duluth, for respondent.

LEES, C.

The will of John Coffin Jones, a resident of Massachusetts who died December 25, 1861, was proved and allowed in the probate court of Norfolk county in that state on June 11, 1862. The testator bequeathed his residuary estate to a trustee, directing him to pay the income therefrom to Manuela Jones for life, and at her death to pay to each of the testator's six children, ‘when and as they shall arrive at full age, his or her share thereof or their heirs respectively.’ Manuela Jones was the testator's widow. She lived until June 5, 1900. Charles C. Jones, a son of the testator, was in the Philliphine Islands when his mother died, and did not learn of her death for many years. Under his father's will his share of the trust fund amounted to $12,751.94. Pursuant to an order of the probate court dated December 19, 1900, the trustees then acting deposited this sum in the Dedham Institution for Savings, in the name of the probate judge.

On January 18, 1901, appellant and his brother, Carlos, presented a petition to the probate court, representing that Charles C. Jones had married at Duluth in the year 1871, and that the petitioners were the only issue of the marriage; that their father had died intestate prior to January 1, 1894, somewhere in Australia, and that the petitioners were his sole legal heirs-their mother having obtained a divorce-and were entitled to the money deposited in the Dedham Institution for Savings, and the court was asked to transfer the deposit to the petitioners in equal shares. On June 19, 1901, a decree was entered granting the prayer of the petition, and the money was paid over on June 30, 1901.

Prior to the entry of the decree notice that the petition would be heard at a time and place stated was published for three successive weeks in a Boston newspaper and in a newspaper published at Sydney, New South Wales, and the notice was posted in Sydney.

Jones returned to the United States in the year 1913, and filed a petition in the probate court for the vacation of the decree of June 19, 1901. The petition was denied, and he appealed to the Supreme Judicial Court. On April 11, 1916, that court reversed the decree of the probate court, and directed that a decree be entered establishing the petitioner's right to the fund drawn from the Dedham Institution for Savings. Jones v. Jones, 223 Mass. 540, 112 N. E. 224. A decree was entered in the appellate court on May 25, 1916. It recites that the decree of the probate court was based on an erroneous finding of fact; that the error should be corrected, and the right of Charles C. Jones to the deposit established as against appellant and his brother.

On May 27, 1918, Jones entered into a contract with the respondent, transferring to her in trust, with all his other property, his share of the trust fund under his father's will. As such trustee respondent brought this action to recover the amount appellant had received on June 30, 1901. The action was commenced less than six years after the date of the entry of the final decree in the Supreme Judicial Court. Appellant pleaded the six-year statute of limitations of this state as a bar. He also pleaded that the trust agreement was contrary to public policy and void under a certain statute of Massachusetts.

Jones has since died. His wife by a second marriage survived. She is insane. She and his two sons by his first marriage are his legal heirs.

The trial court found in respondent's favor, ordered judgment against appellant for $6,439.72, with interest since 1901, and denied his motion for amended findings or for a new trial, and this appeal followed.

It is familiar law that no court has jurisdiction of the administration of the estate of a living person, even though he has disappeared and has not been heard of for more than seven years. Dunnell's Prob. Law, 616; Fridley v. Farmers', etc., Bank, 136 Minn. 333-337, 162 N. W. 454, L. R. A. 1917E, 544;Scott v. McNeal, 154 U. S. 34, 14 Sup. Ct. 1108, 38 L. Ed. 896;Jochumsen v. Suffolk Savings Bank, 3 Allen (Mass.) 87. But it has been held that, in the exercise of its jurisdiction over property within the state, the Legislature may provide that, after the absence of the owner, unheard of, for a specified period, such property may be administered upon in the same form of proceeding as is provided for administration upon the property of a deceased person, and such administration will be valid as against the absentee although in fact he is not dead. Cunnius v. Reading School Dist., 198 U. S. 458, 25 Sup. Ct. 721, 49 L. Ed. 1125,3 Ann. Cas. 1121.

The probate court of Norfolk county had jurisdiction over the estate of John Coffin Jones, and authority to distribute the trust fund. In directing how distribution should be made it was necessary to determine who had a right to share in the fund. The decree of June 19, 1901, was in the nature of a decree of distribution made in the course of a proceeding in rem. The court erred in finding that Jones had died in the lifetime of his mother, and that appellant and his brother were the persons legally entitled to their father's share of the fund. The decree was erroneous, was subject to correction, but was not void ab initio. This in effect was the holding of the Supreme Judicial Court as we read its opinion in Jones v. Jones.

We have, then, a case where the money of one person has been paid to another in compliance with the...