Thesleff v. Harvard Trust Co.

• Decision Date: 04 April 1946
• Docket Number: No. 4101.,4101.
• Parties: THESLEFF v. HARVARD TRUST CO.
• Court: U.S. Court of Appeals — First Circuit

154 F.2d 732 (1946)

THESLEFF v. HARVARD TRUST CO.

No. 4101.

Circuit Court of Appeals, First Circuit.

April 4, 1946.

J. Alfred Anderson, of Fitchburg, Mass. (Anderson & Anderson, of Fitchburg, Mass., of counsel), for appellant.

Walter Malcolm, of Boston, Mass. (Bingham, Dana & Gould, of Boston, Mass., of counsel), for appellee.

Before ALBERT LEE STEPHENS, MAHONEY, and WOODBURY, Circuit Judges.

WOODBURY, Circuit Judge.

This appeal is from a judgment for the defendant entered by the District Court of the United States for the District of Massachusetts in an action brought to recover the amount of a deposit made by the plaintiff's intestate in the defendant's savings department.

The plaintiff sets himself out as "a citizen of the Republic of Finland, residing in the City of Washington, District of Columbia." Apparently he is, or was, connected with the Finnish Legation there. The defendant is a Massachusetts corporation engaged in the banking business and having its usual place of business in Cambridge in that Commonwealth. The amount for which judgment was demanded in the complaint was well over three thousand dollars. Thus federal jurisdiction rests upon diversity of citizenship and amount in controversy.¹

The case was submitted to the court below on agreed facts. For the purposes of this appeal the following summary will suffice.

The plaintiff's intestate was a Finnish national whose name appears in his official family registry in Finland as "Nikolai Aronoja." He came to the United States in 1903 and for most of the period from that time until early in 1940 he lived as a roomer at 39 Prince Street in Cambridge, County of Middlesex, Massachusetts. Then he moved to a room in a house at 20 Brand Street in Arlington, also in Middlesex County, Massachusetts. On June 5, 1940, he died in Arlington leaving a widow and a sister, both residents of Finland, as his only heirs at law and next of kin.

On August 4, 1937, he had opened a savings account with the defendant and at that time he signed his name "Nikolai Aronoy." On the inside of the savings bank book then issued to him, however, his name was typed "Nickolas Aronoia." He appears to have made subsequent deposits and withdrawals for the most part in this latter name, although on some occasions he abbreviated his first name to "Nick", and at one time he withdrew five hundred dollars in the name of "Nicklai" or "Niklai" — it is not clear which — "Aronoyas."

After the death of the plaintiff's intestate one Charles L. Perriello, who at that time was a member of the Massachusetts bar and held appointment as a public administrator pursuant to Massachusetts General Laws (Ter.Ed.), Chapter 194, but who now is confined in the Norfolk Prison Colony, somehow obtained possession of the decedent's savings bank book and on August 8, 1940, petitioned the Probate Court for Suffolk County, Massachusetts, for his own appointment as special administrator of the estate of "Nikolai Aronoy alias Nickolas Aronoia." In this petition it is alleged that the decedent last dwelt in Boston in the County of Suffolk, that special administration was necessary "by reason of problems of citation & to protect assets" and that the petitioner had been requested to act by heirs of the decedent in Massachusetts. On the same day, however, Perriello also filed a petition in the Massachusetts Probate Court for Middlesex County for the appointment of himself as administrator of the estate of Nikolai Aronoja late of Arlington, in that county. In both petitions the date of the decedent's death was set out as June 5, 1940.

Perriello's petition in Middlesex County was opposed by a representative of both the Consul General of Finland and of the widow and was not acted upon until it was dismissed in 1943, apparently on June 18 of that year, when the present plaintiff was appointed administrator by the Probate Court for that county.

The petition in Suffolk County, however, was granted on the day it was presented, and on the day following Perriello appeared at the defendant's bank with his certificate of appointment as special administrator and the decedent's savings bank book and demanded payment to him of the entire credit balance of the decedent's account. It is agreed that "Upon said demand the defendant, in reliance upon said certificate of appointment and savings bank book, paid to said Charles L. Perriello as special administrator of the estate of Nikolai Aronoy alias Nickolas Aronoia the entire credit balance of the account namely $6,456.72, perforated said book as evidence that it had been paid and cancelled and for reference purposes caused to be noted on the back of the signature card the following: `Comm. of Mass. Suffolk s.s. Charles L. Perriello appointed special adm of Est. Aug. 8, 1940 296947.'" Perriello paid the decedent's funeral bills and collected five hundred dollars from the decedent's employer, but never filed any account.

On May 11, 1943, the present plaintiff filed a petition in proper form and in accordance with the true facts in the Probate Court for Middlesex County for his appointment as administrator of the decedent's estate and this petition as already appears was favorably acted upon on June 18, 1943. Thereupon he made demand upon the defendant for the amount on deposit with it in the decedent's account, with interest, and this demand being refused brought the instant action. The court below found as facts (1) "that the plaintiff's intestate was the person of whose estate Charles L. Perriello was purportedly appointed special administrator on August 8, 1940;" (2) "if it is material, that Nikolai Aronoy, Nicholas Aronoia and Nikolai Aronoja are all idem sonans;" and (3) "that no officer or employee of the Harvard Trust Company was intentionally a party to Perriello's fraud." Then it concluded that the defendant's payment to Perriello discharged it from liability to the plaintiff with respect to the decedent's account because the Suffolk Probate Court had appointed Perriello special administrator of the decedent's estate, and under Massachusetts law that court's jurisdiction to do so could not be collaterally attacked in these proceedings on the ground that the decedent was in fact a resident of Middlesex County. Consequently it entered the judgment for the defendant from which this appeal is taken.²

Undoubtedly Perriello obtained his appointment by the Probate Court for Suffolk County as special administrator of the decedent's estate by falsely representing to that court that the decedent last dwelt in Suffolk County when in fact the decedent had never dwelt there but during his entire residence in the United States had dwelt in Middlesex County. And also undoubtedly Probate Courts in Massachusetts have only the jurisdiction conferred upon them by statute, and by statute have jurisdiction only to grant "administration on the estates of persons who at the time of their decease were inhabitants of or residents in their respective counties." General Laws (Ter.Ed.) c. 215, § 3. Thus the fundamental question presented is whether the defendant's payment of the amount of the decedent's deposit to Perriello on the strength of the latter's appointment as special administrator by a Probate Court which lacked jurisdiction for the reason that the decedent was not an inhabitant of or a resident in its county, protects the defendant from a subsequent demand for the same amount by an administrator appointed by the Probate Court which did have jurisdiction.

Obviously this question is one of Massachusetts law and that law seems clear.

Prior to 1836 it was the established law of Massachusetts that an appointment by a Probate Court of an administrator of the estate of a decedent who was not at the time of death a resident of the county in and for which the appointing court sat was absolutely void and afforded no protection whatever to persons innocently deriving title from or dealing with such illegally appointed administrator. Cutts v. Haskins, 1813, 9 Mass. 543; Holyoke v. Haskins, 1827, 5 Pick., Mass., 20, 16 Am.Dec. 372. See also Jochumsen v. Suffolk Savings Bank, 1861, 3 Allen, Mass., 87, 91, in which the above cases are fully discussed and analyzed. Application of this rule was naturally often attended by hardship to innocent persons and to obviate this the General Court in 1836 enacted a statute making decrees of probate courts conclusive with respect to the question of the decedent's residence in all collateral proceedings. McFeely v. Scott, 1879, 128 Mass. 16, 18; Dallinger v. Richardson, 1900, 176 Mass. 77, 81, 57 N.E. 224. This statute, Revised Statutes, c. 83, § 12, subsequently reenacted with inconsequential amendments as General Statutes, c. 117, § 4, and Public Statutes, c. 156, § 4, read in its original form: "The jurisdiction assumed in any case by a judge of probate, so far as it depends on the place of residence of any person, shall not be contested in any...