Rothwell v. First Nat. Bank of Boston

• Decision Date: 26 May 1934
• Citation: 190 N.E. 812,286 Mass. 417
• Parties: ROTHWELL v. FIRST NAT. BANK OF BOSTON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

286 Mass. 417

190 N.E. 812

ROTHWELL

v.FIRST NAT. BANK OF BOSTON et al.

Supreme Judicial Court of Massachusetts, Norfolk.

May 26, 1934.

Exceptions from Superior Court, Norfolk County; F. T. Hammond, Judge.

Action of tort by Edmund A. Rothwell against the First National Bank of Boston and another, executors. Verdict in favor of the plaintiff for $41,291, and the plaintiff, in accordance with an order of the trial judge, remitted all in excess of $36,000, and the defendants bring exceptions.

Exceptions overruled.

E. V. Grabill and W. J. Good, both of Boston, for plaintiff.

F. H. Stewart and F. X. Daly, both of Boston, for defendants.

LUMMUS, Justice.

The plaintiff brings this action of tort against the executors of the estate of his father James E. Rothwell for the alleged conversion of six hundred shares of common stock and ten shares of preferred stock of Carr Fastener Company, and twenty-six unregistered bonds of Utah Metal and Tunnell Company. The testimony of the plaintiff was in substance as follows:

The plaintiff received three hundred shares of common stock in 1917 as a gift from the father, and received the other three hundred shares in 1921 as a stock dividend. The stock stood in the name of the plaintiff until, early in November, 1927, the plaintiff indorsed all the stock certificates in blank at the request of the father, with the understanding that the father might use them if necessary in making a financial settlement with the plaintiff's then wife Katharine in connection with divorce proceedings pending in Nevada which resulted in a decree of divorce on July 5, 1928, and should return them if not so used. On November[286 Mass. 419]30, 1927, the father caused the common stock to be transferred into the name of a confidential friend, Helen S. Byrne, who held them in trust for purposes prescribed by the father. He caused the preferred stock to be transferred into his own name on July 10, 1928.

The bonds were, for the most part, a gift to the plaintiff from the father in 1919. They were kept in a safe deposit box held by the plaintiff and his father jointly, in an envelope marked with the plaintiff's name. In December, 1927, the plaintiff and the father visited the safe deposit box of the latter in another company, and the plaintiff was surprised to see the bonds there. The father explained that he had removed them for safe keeping. Finding that the coupons had not been cut, the plaintiff cut and collected them, but left the bonds without objection in the father's box. On July 11, 1928, without the knowledge of the plaintiff, the father, by an instrument in writing, declared that he held the bonds as trustee for himself for life, with remainder to the trustee under a trust deed which the father had executed on June 29, 1928.

The plaintiff was in New York when the divorce decree was entered in Nevada on July 5, 1928. On July 12, 1928, the father started for Europe by way of Montreal. In Europe the father had a shock, and on his return in October, 1928, he was not in a condition to discuss affairs. Consequently the plaintiff had no talk with him after the divorce. The father died on November 20, 1928, having disposed of his property by the trust deed of June 29, 1928, supplemented by a will which made some provision for the plaintiff. The plaintiff testified that ‘some arrangement had been executed some time in the year 1927 as to the financial support of his wife Katharine’; that he did not know prior to the death of the father that the latter had undertaken to pay Katharine $300 a month; that he never made any claim for stocks or bonds held for him by the father until he did so by his attorneys on February 14, 1929, although he had hed considerable talk with the widow and with a cousin who was one of the executors. The plaintiff contested the will, and a compromise resulted.

The defendants, on the other hand, contended that the stock and the bonds never really belonged to the plaintiff, but that the father merely permitted the stock to stand in the name of the plaintiff for convenience, in order that the plaintiff might receive the income directly as an allowance, without the necessity of action by the father.

The jury returned a verdict for the plaintiff. The only exceptions argued relate to the exclusion of evidence offered by the defendants.

The defendants offered to prove by a stenographer a copy of a letter, dictated by the father on July 5, 1928, and addressed to Inez Ingalls, whom the plaintiff intended to marry as soon as his divorce decree should be entered, and whom he did marry on July 7, 1928. There was no evidence that this letter was ever received or mailed, or that the plaintiff ever knew of it. Therefore it stood merely as a declaration by the father to the stenographer. In substance the father expressed his best wishes and his sorrow that he could not attend the wedding, but stated that the plaintiff ‘with what I am helping him’ had an income of about $200 a month, which was insufficient to maintain his accustomed style of living, and that the father, having ‘promised to take care of Katharine,’ could not increase his allowance to the plaintiff. The defendants contended that this letter ought to be admitted as a declaration that the plaintiff had no substantial property, but was dependent on the father for support.

G. L. (Ter. Ed.) c. 233, § 65, provides: ‘A declaration of a deceased person shall not be inadmissible in evidence as hearsay if the court finds that it was made in good faith before the commencement of the action and upon the personal knowledge of the declarant.’ The conditions making the declaration admissible must be found by the trial judge to exist before it can be admitted. It is true that the admission of the declaration imports such a preliminary inquiry and finding if nothing to the contrary appears. Tenney v. Foss, 268 Mass. 69, 71, 167 N. E. 280;Murphy v. Hanright, 238 Mass. 200, 206, 130 N. E. 204. But where as in this case the judge excludes the declaration, his action cannot be pronounced erroneous unless the record shows that he has made an affirmative finding that the statutory conditions have been fulfilled, or has committed some error of law with reference to the preliminary question. McSweeney v. Edison Electric Illuminating Co., 228 Mass. 563, 117 N. E. 847;Bodfish v. Cross, 235 Mass. 428, 126 N. E. 655;Crowley v. O'Donnell, 238 Mass. 475, 476, 131 N. E. 70;Kelley v. Jordan Marsh Co., 278 Mass. 101, 106, 107, 179 N. E. 299.

Although the plaintiff at one point testified that ‘his father was a cultured gentleman and a man of high integrity,’ the substance of the plaintiff's case was that the father had determined to convert to his own use the plaintiff's securities and to support his misconduct by false statements in formal documents that the securities were the property of the father. The good faith of the father in making the declaration had to be found by the judge upon the evidence before the declaration could be admitted in evidence. The judge did not find that the conditions of the statute had been satisfied. Therefore the exception to the exclusion of the declaration, so far as it was offered under the statute cited, cannot be sustained.

The defendants, however, insist that the declaration was admissible under ...