Boston Safe Deposit & Trust Co. v. Bacon

• Decision Date: 04 March 1918
• Citation: 229 Mass. 585,118 N.E. 906
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: BOSTON SAFE DEPOSIT & TRUST CO. v. BACON.

229 Mass. 585

118 N.E. 906

BOSTON SAFE DEPOSIT & TRUST CO.

v.BACON.

Supreme Judicial Court of Massachusetts, Norfolk.

March 4, 1918.

Exceptions from Superior Court, Norfolk County; John D. McLaughlin, Judge.

Proceeding to probate a will by the Boston Safe Deposit & Trust Company against Florence L. Bacon. From allowance of the will by the probate court, contestant appealed to the superior court, and to its rulings excepts. Exceptions overruled.

Mrs. Mary C. Bowen, who testified as stated in the opinion, was testatrix's first cousin, and William Reed Holbrook, the person under guardianship as insane, also referred to, was a blood relative of testatrix's.

Chas. K. Cobb, of Boston, for Boston Safe Deposit & Trust Co.

Moulton, Loring & Bigelow, of Boston, for Bacon.

PIERCE, J.

This is a probate appeal from the allowance of the will of Elizabeth Miller French, who died on January 21, 1916. Issues for the jury, as framed by a single justice of this court, were to the execution of the will, the soundness of mind and memory of the testatrix, and the undue influence of certain persons named. In answer to the issues the jury found the instrument propounded for probate was executed according to law, that the testatrix was of sound and disposing mind and memory, and that the instrument was not procured by or with the undue influence of the persons named, or either of them. The appellant raises questions as to the competency of the witnesses to the will, the exclusion of evidence, and the instructions of the court. We shall consider the exceptions in the order of their argument in the brief of the appellant.

Were the witnesses competent at the time of signing the will? R. L. c. 135, § 1; Pease v. Allis, 110 Mass. 157, 14 Am. Rep. 591. The attesting witnesses were examined on the voir dire. At the close of their testimony, which is set down in the bill of exceptions, the presiding judge found as a fact that ‘these witnesses are not disqualified by reason of any interest, and declined to rule that upon all the evidence anyone of said three witnesses was not a competentwitness to the will and further declined to rule that on all the evidence as a matter of law the will * * * was not attested and subscribed by three competent witnesses.’ An exception was duly alleged and saved to the foregoing ruling and refusal to rule. The evidence being reported the question of the competency of the witnesses is properly before us. Gorton v. Hadsell, 9 Cush. 508, 511;Quinsigamond Bank v. Hobbs, 11 Gray, 250, 258;Ames v. N. Y., N. H. & H. R. R., 221 Mass. 304, 306, 108 N. E. 920. However, the findings of fact are conclusive, unless the party objecting thereto shall establish clearly that they were based on an erroneous view of legal principles. Wylie v. Cotter, 170 Mass. 356, 49 N. E. 746,64 Am. St. Rep. 305;Maynard v. Royal Worcester Corset Co., 200 Mass. 1, 3, 85 N. E. 877.

It appeared from the testimony of these witnesses that an indenture of trust between the testatrix and the Boston Safe Deposit & Trust Company was entered into on August i4, 1911; that under it the testatrix transferred to the trust company, as trustee, certain bank books, cash and securities amounting to about $50,000; that subsequently she transferred to it other property; and that at her death the trust company held substantially $100,000 which it was bound ‘to transfer, convey and turn over * * * to her executors and administrators.’ It further appeared that the attesting witness Lyman H. Allen was the senior clerk of the trust department of the trust company and had been in its employ for 13 years; that he made the original book entries with reference to this property under the indenture of trust; that the property itself was placed with property belonging to others, held in similar manner, in the vaults of the trust company; that he worked ‘principally on the books, not particularly in reference to Mrs. French's estate, but all of our trust estates'; that he made the book entries with reference to the collection of interest on the savings bank deposits and they were credited to the account of the testatrix; that he did not actually collect the interest, but received the checks from the various institutions where the money of the testatrix was deposited, and that he ‘had little else to do with her estate.’ The attesting witness Robert L. Shewell had charge of the real estate and mortgages of the trust company and had nothing to do with the trust estate of the testatrix. The attesting witness Frank B. Tallman was a lawyer, employed in the trust department of the trust company. He took the acknowledgment of the testatrix to the indenture of trust, made some entries on the books with reference to the trust property, and made one or two statements of account. He had nothing to do with the property itself. No one of the attesting witnesses was a stockholder but each of them had given bonds to the trust company.

Upon the foregoing evidence it is manifest that the finding and ruling of the presiding judge was right. No one of the attesting witnesses had any pecuniary or proprietary interest in the property to be disposed of by the will, and no one of them stood to gain or lose the smallest sum by the effect of a decree setting up or disallowing the probate of the will. Hawes v. Humphrey, 9 Pick. 350,20 Am. Dec. 481;Northampton v. Smith, 11 Metc. 390, 396;Luke v. Leland, 6 Cush. 259;Sparhawk v. Sparhawk, 10 Allen, 155, 159. We find nothing in the contention that the witnesses, in relation to the integrity of the trust fund, stood as guarantees because of their obligation under their several bonds to hold the trust company harmless for any breaches of trust arising from their own positive acts of default. Franklin Bank v. Freeman, 16...