242 Mass. 331 | Mass. | 1922
The plaintiff 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 contended by the petitioner that part of the assets of the estate consisting of war saving stamps, savings bank deposit books, stock, bonds and other securities now in the possession of the defendants, 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 defendants by the testatrix, and whether the court of probate had jurisdiction of the suit.
The securities in question were kept by the testatrix in a safe deposit box with a trust company, and at the date of her death “some diamonds, jewelry and one bank deposit book, were in her room.” After making her will, in which she left all her property to the plaintiff and executor in trust to pay the income for life to the defendants or the survivor of them, and at their death to distribute the entire estate to the plaintiff’s grandson, she took the defendant Mrs. Weaver to the office of the trust company, “and told the officials that she wanted her to have right of access to the . . . deposit box.” This defendant 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
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 vivas 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 lifetime. Parish v. Stone, 14 Pick. 198, 203. McGrath v. Reynolds, 116 Mass. 566. Day v. Richards, 197 Mass. 86, 87, and cases cited. Nelson v. Peterson, 202 Mass. 369, 371. The numerous requests of the defendants resting on the merits were denied rightly.
The answer however avers that the plaintiff has a plain and adequate remedy at law, and that the court was without jurisdiction. It is said in Pomeroy, Eq. Jur. (4th ed.) § 185, 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 any 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, 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 plaintiff 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 bringing suits.” Sears v. Carrier, 4 Allen, 339. The bonds were intangible property in the possession of the defendants who were not obliged to expose them to the replevying officer, and the remedy by replevin, or in tort for conversion, would not provide adequate relief. It was unquestioned in Nelson v. Peterson, 202 Mass. 369, that equity had jurisdiction to compel the
We are of opinion that this defence cannot prevail. By St. 1877, c. 178, § 1, St. 1883, c. 223, §§ 1,2, R. L. c. 159, § 1 (see now G. L. c. 214, § 1), “The supreme judicial and superior courts shall have original and concurrent jurisdiction in equity of all cases and matters of equity cognizable under the general principles of equity jurisprudence and, with reference thereto, shall be courts of general equity jurisdiction.” It is manifest that the present suit could have been maintained in either of those courts. By St. 1880, c. 163, the Probate Court acquired original concurrent jurisdiction with this court over all matters relating to the termination of trusts under .wills, deeds, indentures or other instruments. See Pub. Sts. c. 141; St. 1892, c. 116. By St. 1891, c. 415, § 1, it was given “jurisdiction in equity, concurrently with any other court having jurisdiction of proceedings in equity, of all cases and matters relating to the administration of estates of deceased persons or to wills or trusts created by will, and such jurisdiction may be exercised upon petition, according to the usual course of proceedings in the probate courts.” R. L. c. 162, § 5. The Sts. of 1910, c. 100, 1915, Ci 151, and 1917, c. 126, further extended the jurisdiction to matters not material here, but which are codified with preceding enactments relating to the general subject in G. L. c. 215, § 6. It was decided in Abbott v. Gaskins, 181 Mass. 501, that under Pub. Sts. c. 142, § 14, the Probate Court had no jurisdiction in equity to confirm and enforce an agreement of compromise under a will, a proceeding unknown to general equity jurisprudence, but created by statute, and over which this court when that case was decided May 23, 1902, had exclusive jurisdiction. St. 1861, c. 174, § 1. Pub. Sts. c. 142, § 13. R. L. c. 148, § 14. But St. 1903, c. 222 (see now G. L. c.- 204, §§ 13, 14), conferred concurrent jurisdiction on the Probate Court. See St. 1902, c. 538.
In accordance with the terms of the report a decree for the plaintiff is to be entered.
Ordered accordingly.