Mitchell v. Weaver

Decision Date01 July 1922
PartiesMITCHELL v. WEAVER et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

Report from Probate Court, Suffolk County; Robert Grant, Judge.

Suit by Arthur Y. Mitchell against Arabella B. Weaver and others to compel delivery of property claimed by petitioner as part of the estate of Alice M. Robinson of whose will he was executor. Reported from the probate court. Decree for petitioner.

Edmund A. Whitman and Hewitt G. Fletcher, both of Boston, for petitioner.

James E. Kelley, of Boston, for respondents.

BRALEY, J.

The petitioner is the executor of the will of Alice M. Robinson, which has been proved and allowed. The testatrix, a teacher in the public schools, left a small estate acquired from her earnings, and by inheritance from her father, and the proceeds of a policy of insurance upon the life of a deceased son. It is claimed by the petitioner that part of the assets of the estate consisting of war savings stamps, savings bank deposit books, stock, bonds and other securities now in the possession of the respondents, her only heirs at law and next of kin, belong to the estate but are so secreted and withheld that they cannot be replevied in an action at law. The record presents two questions, namely, whether there was a perfected gift to the respondents by the testatrix, and whether the court of probate had jurisdiction of the suit. The securities in question were kept by her in a safe deposit box with a trust company, and at the date of her death ‘some diamonds, jewelry and a bank deposit book were in her room.’ After making her will in which she left all her property to the petitioner and executor in trust to pay the income for life to the respondents or the survivor of them; and at their death to distribute the entire estate to the petitioner's grandson, she took the respondent Mrs. Weaver to the office of the trust company; ‘and told the officials that she wanted her to have the right of access to the * * * deposit box.’ This respondent testified that the testatrix at that time said:

‘Just as soon as you hear of anything happening to me, go immediately to that box and remove everything in it. It is yours and you will need every cent.’

It is also found that she gave her sisters a key to the box and sent them a list of the property therein.’ Subsequently Mrs. Weaver voluntarily returned the key to the testatrix because she said:

‘I did not wish to carry it around in my pocket any longer and I knew I could go there to the box if anything happened to her.’

It further appeared that in a letter to Mrs. Weaver she inclosed ‘a list of what is in my box,’ with a statement that she would send an extra key ‘when I find it.’ In a letter to the respondent Miss Cushing she said ‘on the other side I have written numbers of United States bonds I have and place they are to be found. They are easily lost and misplaced. You should know about them,’ and at the end of the list she states that one of the bonds scheduled has been exchanged, ‘Will not receive it until January. The rest are in my box at South Boston Trust.’ The final letter to Miss Cushing written February 18, 1921, just before leaving her home for an operation from the effects of which death ensued the same day, says:

‘When you were at 31 Parkman Street six years ago I created a trust fund thinking with a house to cover your head and $150 a year sure to come in, I could die easy knowing you would have enough to carry on, with seven bank books containing about two thousand. It would not have been necessary for me to send the accompanying to you had Belle (Mrs. Weaver) been kind enough to keep the deposit box key; as it is you will be obliged to pay a tax on everything even the liberty bonds. Please keep the accompanying if I should ever need them. You certainly will need them.’

Then follows the list of the bonds and the income therefrom amounting to $227.98 from which $50 is deducted with this comment, ‘If I have an operation $50 a year less, for I shall be obliged to get Mr. Mitchell to sell a bond to pay expenses.’ Inclosed with the letter was the following instrument dated February 12, 1921, signed by her and by three witnesses:

‘To whom it may concern: This is to certify that I am in my right mind and perfectly able to dispose of my belongings. I wish my two sisters Mrs. Arabelle B. Weaver and Miss Annie B. Cushing, both of Dorchester, Mass., to have everything belonging to me except what I have previously arranged for. Then my two sisters are to take possession wherever placed and divide between them, just as they wish without outside interference. It is my wish that they do exactly as they wish with my possessions. All my bills and indebtedness will be paid by Mr. Arthur Y. Mitchell, 52 Temple Place, Old Colony Trust Company, as previously arranged for.’

And before she went to the hospital she wrote Mr. Mitchell:

‘I am obliged to go to the hospital for an operation. Will you please sell one of my bonds so I can have plenty of money?’

The instrument just quoted although propounded for probate was disallowed for want of proper attestation, and can have no force as a testamentary disposition of the whole or any part of her estate. The judge rightly found on the evidence that no trust was created except the trust established by the will, and that on all the facts there was no delivery of the securities kept in the safe deposit box and in the room of the testatrix sufficient to sustain a gift inter vivos or causa mortis. The authority to open the safe deposit box terminated when the testatrix died and it is clear that no actual delivery of the property whereby the donor relinquished dominion and control over it ever took place in her life time. Parish v. Stone, 14 Pick. 198, 203,25 Am. Dec. 378;McGrath v. Reynolds, 116 Mass. 566;Day v. Richards, 197 Mass. 86, 87, 83 N. E. 324, and cases cited; Nelson v. Peterson, 202 Mass. 369, 371, 88 N. E. 916,132 Am. St. Rep. 503.

The numerous requests of the respondents resting on the merits were denied righty. The answer however avers that the petitioner has a plain and adequate remedy at law, and that the court was without jurisdiction. It is said in Pomeroy's Equity Jurisprudence (14th Ed.) § 185b, where the question of concurrent jurisdiction is considered, that--

‘Where the final relief is substantially a recovery of chattels the jurisdiction * * * really rests upon the fact that the only relief which the plaintiff can have is the possession of the identical thing as this remedy cannot with certainty be obtained in a common law action.’

See notes (e) and (d) for a collection of cases in which the remedy has been recognized and applied. And in Pierce v. Lamson, 5 Allen, 60, 81 Am. Dec. 732, a suit in equity to recover a mortgage, the court say, it was brought under ‘one of the most ancient heads of chancery jurisdiction.’ The petitioner was entitled to all the assets in the form in which they were left by the testatrix, and to ‘settle the estate without incurring the expense, delay and trouble of...

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