Farnsworth v. Whiting

• Citation: 104 Me. 488,72 A. 314
• Parties: FARNSWORTH v. WHITING et al. (two cases).
• Decision Date: 04 December 1908
• Court: Supreme Judicial Court of Maine (US)

72 A. 314

104 Me. 488

FARNSWORTH

v. WHITING et al. (two cases).

Supreme Judicial Court of Maine.

Dec. 4, 1908.^†

(Official.)

Report from Supreme Judicial Court, Knox County, in Equity.

Separate bills in equity by Lucy C. Farnsworth, administratrix with the will annexed of the estate of James R. Farnsworth, deceased, one against George F. Whiting and others and the other against the same defendants, with the addition of the Security Trust Company. A demurrer, general and special, was filed in each case, and they were then reported to the law court for decision. Demurrers overruled, and defendants to answer.

Two bills in equity brought by the plaintiff, Lucy C. Farnsworth, in her capacity as administratrix with the will annexed of the estate of James R. Farnsworth, deceased testate. In the first-entitled cause the bill was brought to compel the defendants George F. Whiting, Isabella A. Martin, and David N. Mortland to return to her as administratrix aforesaid certain notes, bonds, checks, and stock certificates belonging to the said James R. Farnsworth, and alleged to have been taken and carried away from his house by the defendants George F. Whiting and Isabella A. Martin, and by them deposited with the defendant David N. Mortland. In the second-entitled cause the bill was brought to compel the defendants George F. Whiting, Isabella A. Martin, David N. Mortland, and the Security Trust Company to deliver to the plaintiff as administratrix aforesaid all the keys to a certain safe deposit box rented by the said Security Trust Company to the said James R. Farnsworth, and containing at the time of his death certain bonds, certificates of stock, and other valuable papers belonging to him, also to prevent the said Security Trust Company affording either of the other defendants access to the box, and also to compel the said Security Trust Company to afford the plaintiff access to the box. A demurrer, general and special, was filed in each case. After the filing of the demurrers, motions to amend the bills were filed.

When these causes came on to be heard on bills and demurrers, it was agreed that each case should be reported to the law court "upon bill and demurrer, together with the complainant's motion to amend," and with the following stipulation in each case: "If, in the opinion of the law court, as matter of law, the amendments are not allowable, the court is to decide the demurrer on the bill as it stands; but, if allowable, the bill is to be taken as amended, and the demurrer is to be decided as if filed to the amended bill."

The cases are stated in the opinion.

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, PEABODY, SPEAR, and BIRD, JJ.

Orville Dewey Baker, for plaintiff. David N. Mortland and Rodney I. Thompson, for defendants Whiting and Mortland. Arthur S. Littlefield, for defendant Security Trust Co.

EMERY, C. J. Ignoring for the present whether it has been told in sufficient legal phraseology or with sufficient directness and completeness of statement, the story the plaintiff tells in these two bills in equity is substantially as follows:

Helen A. Farnsworth, of Rockland, died May 5, 1905, intestate and without issue, but leaving as heirs her husband, James R. Farnsworth, a brother Mr. Whiting, and a sister Mrs. Martin, the last two residing then and now out of the state. David N. Mortland of Rockland was duly appointed administrator of the estate.

James R. Farnsworth, the husband, died testate a few days later. His will was duly probated, and the plaintiff, Lucy C. Farnsworth, duly appointed administratrix c. t. a. in January, 1907. For some years prior to his death James R. Farnsworth rented a safe deposit box of the Security Trust Company in Rockland, receiving the keys thereto. By the terms of the contract with the security company the box was not to be opened by any one except Farnsworth himself, his legal representative in case of his death, or a person having written authority therefor from him or his legal representative. Since his death the box has been retained and the rent therefor paid by his legal representative, now the plaintiff. At the time of his death the box contained bonds, certificates of stock, and other papers of value belonging to him, and also two certificates of stock issued to his wife, Helen. Also at the time of his death Farnsworth owned and had in his immediate possession, outside of the safe deposit box, certain promissory notes, checks, bonds, and certificates of stock.

At the time of the death of James R. Farnsworth and for some days before and after his death, Whiting and Martin, heirs of his wife, were in his house and chamber, and obtained possession of the last-named papers, and also of the keys to the Farnsworth safe deposit box rented from the Security Trust Company, and deposited them with Mr. Mortland, the administrator upon the estate of their sister Helen, the wife of James. Mr. Mortland now holds them and refuses to deliver them to the plaintiff, the administratrix c. t. a. on estate of James. The trust company also refuses to afford her access to the box, and is contemplating affording Whiting and Martin access to the box upon receiving satisfactory indemnity from them.

The plaintiff, as administratrix c. t. a. of James R. Farnsworth, has now brought one bill in equity against Whiting, Martin, and Mortland to compel them to return to her, as such administratrix, the notes, bonds, checks, and stock certificates they obtained possession of as above stated. In the bill a list of such papers is set forth. The plaintiff in the same capacity has also brought another bill in equity against the same three defendants, and also against the Security Trust Company, to compel a return to her of the keys of the safe deposit box above described, to prevent the Security Trust Company affording either of the other defendants access to the box and to compel the company to afford her access.

A demurrer, special and general, was filed to each of these bills, and both cases were then reported to the law court for consideration of the demurrers.

1. In several paragraphs of each bill the allegation is merely that "the plaintiff is informed and believes" the matters set forth in the paragraphs, without any averment of them. This is urged by the defendant as special cause for demurrer. After the demurrers were filed, the plaintiff asked leave to amend each bill by inserting in the faulty paragraphs the words, "and therefore avers," after the words, "the plaintiff is informed and believes." The proposed amendments were also reported to the law court with the stipulation that, if they are allowable, the bill shall be taken as thus amended.

The defendants contend that the amendments are not now allowable because not sworn to; the bills being for injunction, etc., and required to be on oath. If the proposed amendments contained any statement of additional facts, or even varied any statement of matters of fact contained in the bill, the objection might be valid. In these cases, however, the proposed amendments are purely in matters of form. No statement of fact is added. None is varied. It is only the manner of stating them that is varied. The proposed amendments are therefore allowable and are allowed, and the bills taken as amended accordingly. Livingston v. Marshall, 82 Ga. 281, 11 S. E. 542.

2. The defendants further urge as cause of demurrer that fraud is not sufficiently alleged, that no facts are stated which would constitute fraud. Neither bill, however, purports to charge fraud upon the part of any defendant. They set forth simply...