300 P. 539 | Mont. | 1931
Plaintiff, as administrator of the estate of Mary Elizabeth Stagg, deceased, expressly waiving the tort, brought this action upon an implied contract to recover the value of certain described articles of jewelry alleged to have been owned by the deceased during her lifetime, and which were converted by the defendant. At the close of plaintiff's evidence, the court sustained the motion of defendant for a nonsuit, and judgment for costs was entered in favor of defendant. Plaintiff's motion for a new trial was overruled, and he has appealed from the judgment.
The complaint is in the usual form, and its sufficiency is not challenged. It shows that Mary Elizabeth Stagg died on January 19, 1919, and that John A. Stagg was appointed administrator of her estate on November 19, 1929; that in her lifetime Mary Elizabeth Stagg owned the jewelry described which has an actual value of $15,000; that prior to the commencement of the action defendant wrongfully took the articles of jewelry into her possession with the intent to convert them to her own use, and that plaintiff has demanded that defendant pay him the value thereof, which demand has been refused.
The answer denies that the articles of jewelry were owned by the deceased in her lifetime, puts in issue the value of the *183 jewelry, and, by way of affirmative defenses, alleges, in substance, that James P. Stagg is the father of John A. Stagg, and was the husband of Mary Elizabeth Stagg until her death; that on July 24, 1922, defendant was united in marriage with James P. Stagg; that the articles of jewelry in question were given to defendant by James P. Stagg, the then owner, on May 30, 1922, for and on account of their engagement; that since May 30, 1922, defendant has been in the exclusive possession of the jewelry, claiming the same adversely to all persons more than seven and one-half years before the commencement of the action, and that between the thirtieth day of May, 1922, and the sixteenth day of June, 1927, she wore and displayed the articles of jewelry at entertainments where plaintiff was one of the guests present; that this action, which was commenced on December 21, 1929, is barred by statutes of limitations, several of which are specifically pleaded, and that plaintiff is guilty of laches in bringing the action at this time after the death of James P. Stagg, the principal witness for defendant. The reply admits the relationship of the parties, and puts in issue the material affirmative allegations of the answer.
The evidence shows that plaintiff, John A. Stagg, and Ira Stagg are the sons of Mary Elizabeth Stagg and James P. Stagg; that, after the death of Mary Elizabeth Stagg, James P. Stagg and defendant intermarried; that James P. Stagg, who lived in Anaconda, died June 16, 1927. In 1919 John A. and Ira Stagg were attending the University of Los Angeles, California. John A. was then married to Willim Stagg. While attending the University, both John and Ira contracted the "flu," and Mary Elizabeth went to Los Angeles to attend them; while there she became seriously ill, requiring a surgical operation, from which she died. She had the articles of jewelry on her person while in Los Angeles, and exhibited them to plaintiff's wife and others. When warned of the serious character of her illness and the necessity for an operation, she called Willim Stagg to her bedside and handed the jewelry to her saying, "Give these to `Dad' Stagg, and he is to keep it for the boys until they are old enough *184 to appreciate it." Willim Stagg, in compliance with this request, delivered the jewelry to James P. Stagg after the death of Mary Elizabeth Stagg, and communicated to him the directions given to her by Mary Elizabeth Stagg, and she testified that James P. Stagg "accepted the jewelry on those conditions." James P. Stagg kept the jewelry in his vault at the store operated by him in Anaconda. At different times he permitted Willim Stagg and the defendant to wear some of the jewelry.
John Stagg testified that "the reason I did not take any action to get possession of these diamonds while my father was living, is because they were given to my father to be given to us when, in his discretion, we were old enough to appreciate them, and I would not sue my father when I had no right to obtain them. I knew my father would do the right thing. He generally did do the right thing, and I believe it was my father's wishes that these jewels be turned over to us."
In 1927 plaintiff saw the jewelry in the vault in his father's store. He said he knew that defendant wore the jewelry at times, and that he spoke to his father about it on several occasions, but he knew they were in the vault in 1922 and in 1926 and 1927. He said that the last time he saw the jewelry before his father's death it was in the possession of the defendant. He testified to the conclusion that he considered himself and his brother the owners of the jewelry at all times, though saying that "technically, under the law, we were not the owners."
Defendant's motion for nonsuit raised the questions whether the cause of action is barred; whether under the evidence plaintiff is the proper party to bring the action; and whether plaintiff has been guilty of laches in instituting the action.
The objection that a cause of action is barred by limitations[1-3] is an affirmative defense (sec. 9065, Rev. Codes 1921), and the defendant has the burden of proving the facts in support of the plea (Bielenberg v. Higgins,
One section of the statutes relied upon as a bar is section 9052, which provides: "For the purpose of computing the time within which an action must be commenced in a court of this state, by an executor or administrator, to recover personal property, taken after the death of a testator or intestate, and before the issuing of letters testamentary or letters of administration, or to recover damages for taking, detaining, or injuring personal property within the same period, the letters are deemed to have been issued within five years after the death of the testator or intestate. But where an action is barred by this section, any of the next kin, legatees, or creditors, who, at the time of the transaction upon which it might have been founded, was within the age of majority, or insane, or imprisoned on a criminal charge, may, within five years after the cessation of such disability, maintain an action to recover damages by reason thereof, in which he may recover such sum, or the value of such property, as he would have received upon the final distribution of the estate, if an action had been seasonably commenced by the executor or administrator."
Without this statute, the statute of limitations would not commence to run until an administrator was appointed, no matter how long a time elapsed between the time of the death of the deceased and the appointment of an administrator. (Haydon v.Normandin,
The right of one whose property has been converted to waive[4] the tort and sue in assumpsit is well settled. (FirstNat. Bank v. Silver,
Where a tort is waived and an action brought on an implied contract, the statute of limitations applicable is that governing the latter form of action. (1 C.J. 1040; Trousdale v.Amerman,
The action here involved is founded upon a promise implied by law to pay the value of the jewelry alleged to have been converted. It is based upon an obligation as that term is defined in section 7394, Revised Codes 1921, and not upon a contract as defined in sections 7467 and 7468.
The statute of limitations applicable is subdivision 3 of section 9031, which describes a limitation of three years for "an action upon an obligation or liability, not founded upon an instrument in writing, other than a contract, account, or promise." (See Schaeffer v. Miller,
This action, as above noted, was commenced on December 21,[5-7] 1929. Did the cause of action accrue more than three years before the action was commenced?
According to plaintiff's evidence, the jewelry in question had not been converted by defendant during the lifetime of James P. Stagg. He died on June 16, 1927. While there is evidence that defendant was permitted to wear some of the jewelry before the death of James P. Stagg, yet this evidence does not show that it had been converted by defendant prior to the death of James P. Stagg. Willim Stagg was also permitted to wear the jewelry during the lifetime of James P. Stagg. The evidence, viewed in the light most favorable to plaintiff, was to the effect that James P. Stagg was rightfully in the possession of the jewelry during his lifetime. In consequence, there could be no conversion by him until his possession became wrongful by a refusal to surrender possession upon demand (see generally 38 Cyc. 2032, and Viers
v. Webb,
The motion for nonsuit cannot be sustained because of the statute of limitations. What has been said also precluded the granting of the motion on the ground of laches.
The only remaining question is whether plaintiff is the proper party to maintain the action. *188
Whether plaintiff is the proper party plaintiff depends upon[8-11] the legal effect of the arrangement under which Mary Elizabeth Stagg parted with the jewelry. Defendant contends that the transaction as disclosed by the evidence constituted a giftcausa mortis, and for that reason title to the jewelry passed from Mary Elizabeth Stagg. A gift causa mortis is defined in section 6885, Revised Codes of 1921, as follows: "A gift in view of death is one which is made in contemplation, fear, or peril of death, and with intent that it shall take effect only in case of the death of the giver." One of the essential elements of a giftcausa mortis is that the gift is intended to take effect only in case of the death of the giver (O'Neil v. O'Neil,
When the property was delivered to and accepted by Willim Stagg, the presumption arose that she took it as trustee or agent for the donees, and not as agent of the donor, where, as here, the donor relinquished control and dominion over the property. (In re Hanson's Estate,
The trusteeship was terminated upon the death of James P. Stagg. (Sec. 7922, Rev. Codes 1921.) But a trust will not fail because of the want of a trustee. In such case the court will appoint a trustee to carry out the trust. (Sec. 7925, Id.) While the substituted trustee cannot exercise discretionary powers granted to the original trustee by reason of personal confidence reposed in him (26 R.C.L. 1338), yet where, as here, there is no question presented that the intended donees are not now of sufficient age to appreciate the jewelry (the only matter concerning which the trustee was permitted to exercise a discretion), a substituted trustee could be appointed to carry out the trust. Assuming, without deciding, that the trustor has a sufficient interest in seeing that the trust is carried out to maintain an action for that purpose, and assuming *190
that the administrator of his estate has the same right (but ordinarily its enforcement rests with the beneficiaries of the trust, 26 R.C.L. 1345; and see Huffine v. Lincoln,
To entitle one to maintain an action in conversion he must be[12-14] entitled to the possession of the property at the time of the conversion (United States Nat. Bank v. Great WesternSugar Co.,
The judgment therefore must be, and is, affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES GALEN, FORD and MATTHEWS concur. *191
