Sawyer v. Old Lowell Nat. Bank

• Citation: 119 N.E. 825,230 Mass. 342
• Parties: SAWYER v. OLD LOWELL NAT. BANK.
• Decision Date: 25 May 1918
• Court: United States State Supreme Judicial Court of Massachusetts

230 Mass. 342

119 N.E. 825

SAWYER

v.OLD LOWELL NAT. BANK.

Supreme Judicial Court of Massachusetts, Middlesex.

May 25, 1918.

Report from Superior Court, Middlesex County; Marcus Morton, Judge.

Action of tort or contract by John F. Sawyer, administrator, etc., of the estate of Sarah R. Spalding, against the Old Lowell National Bank, resulting in verdict for defendant. On report to the Supreme Judicial Court. Judgment ordered on the verdict.

F. E. Dunbar and A. C. Spalding, both of Lowell, for plaintiff.

James J. Kerwith and James C. Reilly, both of Lowell, for defenant.

DE COURCY, J.

Sarah R. Spalding died on shipboard April 6, 1902, while returning from Jamaica. Shortly thereafter a search was begun for a will which it was known she had at one time executed.' One Charles H. Coburn called at the banking rooms of the defendant, where Miss Spalding had hired a safe-deposit box and kept a deposit account. He had the key of the safe-deposit box, and its contents were examined in his presence, but no will was found therein.

Mr. Coburn was duly appointed administrator of Miss Spalding's estate on May 27, 1902. He administered the estate, had his final account allowed May 25, 1905, and distributed the personal estate among the next of kin in pursuance of a decree issued by the probate court on June 7, 1905.

In February, 1910, two clerks in the employ of the defendant were engaged in removing from the bank vault certain old books and records, preparatory to installing new steel shelving. On the floor, under one of the old shelves, they found a rectangular tin box, about twelve inches long, seven inches wide, and six or seven inches deep. The name Sarah R. Spalding was scratched thereon in two or three places; and when the box was opened there was found therein the will of Miss Spalding, and some other papers and family ‘keepsakes' of no intrinsic value. The president of the bank filed the will in the probate office, and notified the attorney who had acted for Mr. Coburn. This will was duly allowed March 14, 1910, and the plaintiff was appointed administrator with the will annexed. He brought this action of tort or contract to recover damages, claiming, among other elements, the expenses incident to the administration, and the value of the real estate which had been sold by the heirs of Miss Spalding prior to the finding of her will.

The case declared on, and tried in the superior court, was the alleged breach of duty by the defendant, as bailee, in failing to produce or deliver the box containing the last will of Sarah R. Spalding. We assume, for the purposes of this case, that the plaintiff is a proper party to sue in the right of the testatrix for some of the elements of alleged damage, and 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 deliver it into the probate court, is not exclusive. Nevertheless the plaintiff has failed to establish the essential fact, that the defendant ever became bailee of the will. Presumably it could be inferred from the evidence that the tin box was left at the bank for safe-keeping; but there is nothing in the record to indicate that the defendant knew or reasonably ought to have known that Miss Spalding's will was contained in it. Acceptance of the box would not make the bank responsible for its contents. As was said in Scollans v. Rollins, 179 Mass. 346, 354, 60 N. E. 983, 985 , where a sealed envelope containing bonds was delivered:

‘* * * If the certificates had been handed to him in a sealed envelope, they would not have been entrusted to him, and opening the...