230 Mass. 342 | Mass. | 1918
Sarah R. Spalding died on shipboard on 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 on 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 -helving. 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 on 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 before 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
As the defendant never became custodian of the will of Miss Spalding, it is unnecessary to consider whether it would be authorized, under the national bank act, to accept a will for safe keeping, and would be legally liable for the consequences due to its failure to deliver the will according to directions. See Myers v. Exchange National Bank, 96 Wash. 244; Dresser v. Traders’ National Bank, 165 Mass. 120. And see now federal reserve act, U. S. St. 1913, c. 6, § 11 k. First National Bank v. Union Trust Co. 244 U. S. 416.
The plaintiff, in his supplemental brief, argues that the defendant bank was bailee of the tin box, as distinguished from its contents. It is apparent from the record, however, that the bailment claimed in the pleadings and at the trial was that of the will; and the damages contended for could not arise from the loss of the $ box itself. Even if thé question were now open to the plaintiff, it is difficult to see how an empty tin box, gratuitously stored in the bank vault for the accommodation of the owner, could be regarded as a “ special deposit,” the handling of which would come within the regular line of banking business, like money, stocks, bonds and other securities. American National Bank v. E. W.
The plea in abatement and demurrer have not been argued by the defendant, and the issues raised thereby are disposed of by what we have said. The exclusion of evidence offered by the plaintiff on the question of damages has become immaterial in view of our decision on the issue of liability. Millen v. Gulesian, 229 Mass. 27. The trial judge rightly ordered a verdict for the defendant: and in accordance with the report judgment is to be entered on the verdict.
So ordered.