Gallagher v. First Nat. Bank of Boston

• Decision Date: 03 January 1964
• Parties: Julia A. GALLAGHER v. The FIRST NATIONAL BANK OF BOSTON, executor. Margaret SHARRON v. The FIRST NATIONAL BANK OF BOSTON, executor. Margaret SHARRON, Administratrix of the Estate of Beatrice W. McGuire v. The FIRST NATIONAL BANK OF BOSTON, executor.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 68

195 N.E.2d 68

346 Mass. 587

Julia A. GALLAGHER v. The FIRST NATIONAL BANK OF BOSTON, executor.

Margaret SHARRON v. The FIRST NATIONAL BANK OF BOSTON, executor.

Margaret SHARRON, Administratrix of the Estate of Beatrice W. McGuire v. The FIRST NATIONAL BANK OF BOSTON, executor.

Supreme Judicial Court of Massachusetts, Worcester.

Argued Dec. 2, 1963.

Decided Jan. 3, 1964.

Thomas J. Carroll, Gardner, for plaintiffs.

Walter S. Robbins and Philip D. Stevenson, Boston, for defendant.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, and SPIEGEL, JJ.

WILKINS, Chief Justice.

These are three actions by legatees under the will of Mary A. Gallagher, late of Leominster, against the executor under the will of Joseph A. Lovering, Esquire, late of Leominster. The writs are in contract or tort. Demurrers to the substitute decisions were sustained generally, and the plaintiffs appealed. The cases are substantially identical and have been consolidated. We describe the pleading in the first case only.

The declaration is in two counts. Court 1 is described as in contract and alleges: On or about September 30, 1952, the defendant's testator, Joseph A. Lovering, Esquire, prepared and witnessed a will for Mary A. Gallagher under the terms of which the plaintiff was a beneficiary. Upon its execution Mr. Lovering took the will for safekeeping, and thereby impliedly promised to deliver it at the request of the testatrix or her representatives. Mary A. Gallagher died on September 7, 1954. After the lapse of a reasonable time during which, after search, no will was found, an administrator of her estate was appointed by the Probate Court, Worcester County. Counsel for the estate inquired of Mr. Lovering whether he had prepared or had her will in his custody. Mr. Lovering stated that he had neither prepared nor had custody of her will. In fact, the will, which he had prepared, was in his custody. The administrator thereafter distributed among the next of kin the sum of $7,834.72, and a final account was allowed. The defendant executor located the will in Mr. Lovering's safe after his death. The will was allowed by the Probate Court on January 31, 1961. The plaintiff was not the next of kin, received no share of the estate and has been unable to recover any of the amounts paid to the next of kin. Under the will the plaintiff was given a specific legacy of $500 and one third of the residue. The plaintiff's loss was due to Mr. Lovering's failure to produce or deliver the will for probate and the plaintiff is entitled to recover damages with interest from November 23, 1955, the date of distribution of the assets.

Court 2, described as in tort, is substantially the same except instead of the allegation of an implied promise it contains an allegation that Mr. Lovering negligently failed to produce or deliver the will for probate.

One ground of demurrer is: '3. The plaintiff's action, in either contract or tort, did not survive against the estate of Joseph A. Lovering and his estate cannot be held liable therefor.'

We do not consider whether the plaintiffs have a cause of action against the defendant's testator under G.L. (Ter. Ed.) c. 191, § 13, or whether such a remedy is exclusive. This is because whatever the remedy, by statute or at common law, the decisive issue is whether it survived. This involves first a determination whether the cause of action sounds in contract or in tort. We are of opinion that it sounds in tort. No consideration for any contract is alleged. The plaintiffs were not parties to any agreement with Mr. Lovering, but could be, at most, third party beneficiaries. See Cain's Lobster House, Inc. v. Cain, 312 Mass. 512, 516, 45 N.E.2d 397, and cases cited. We cannot accept the argument of the plaintiffs that § 13 created a direct right in them or privity of contract with the testatrix. Furthermore, if there be a remedy under § 13, the statutory phrase, 'if a person neglects without reasonable cause,' is appropriate to describe a remedy in tort but not to describe a remedy in contract. The ancestor statutes of § 13 punished failure to deliver a will by forfeiture of a fixed penalty, the amount of which depended on the length of the delay. See Prov.St. 1692-3, c. 14, § 2; St.1783, c. 24, § 16; St.1817, c. 190, § 32. Such a provision tends to show that the duty imposed was noncontractual.

Another question argued we likewise need not resolve. This is whether the remedy under G.L. (Ter. Ed.) c. 191, § 13, is exclusive. In Thayer v. Kitchen, 200 Mass. 382, 386, 86 N.E. 952, there was a reference to § 14, R.L. c. 135, a predecessor of c. 191, § 13, which dealt with proceedings against persons for retaining or concealing wills, and it was intimated that the statutory relief was exclusive. In Sawyer v. Old Lowell Nat. Bank, 230 Mass. 342, 345-346, 119 N.E. 825, 826, 1 A.L.R. 269, it was assumed, without deciding, 'that the remedy provided by R.L. c. 135, § 14, in favor of persons aggrieved by the unreasonable neglect of the possessor of a will to deliever it into the probate court, is not exclusive.'

We are of opinion that whatever the remedy it would not survive. In Putnam v. Savage, 244 Mass. 83, 85, 138 N.E. 808, 809, it was said through Rugg, C. J., 'At common law a right of action for tort does not survive the death either of the person injured or of...