Thayer v. Kitchen, 200 Mass. 382

Thayer v. Kitchen

200 Mass. 382 | Mass. | 1909

Rugg, J.

This is an action of tort. The defendants’ demurrer to the declaration was sustained. Judgment was thereupon entered for the defendants, from which the plaintiff appealed. The allegations of the declaration are voluminous. There are some floating statements, which, it is argued, amount to an averment that one Holland gave to the plaintiff certain stocks, bonds and other securities, which the defendants have taken and secreted. But the pleading falls far short of any sufficient allegation of conversion, and indeed does not appear to be directed to any such end. That form of declaration is familiar, and its *385material averments are brief and lucid. If that was the kind of action intended, the declaration was plainly open to objection as composed of ambiguous, multifarious and irrelevant matter, and not being a concise and substantially certain statement of the substantive and necessary facts. If, however, from the mass of language employed there is excerpted all that looks toward trover, it is plainly insufficient. There is no description of specific property, but merely a general reference to certain classes of personal property, which is utterly devoid of definiteness. It is also extremely doubtful if there is any averment of ownership, save as an alleged inference from other circumstances, which in themselves are inadequate to show any title vesting in the plaintiff at any time.

The declaration is obviously framed with another purpose. It is not necessary to recite its substance further than to say that it avers that one Eolland executed and left unrevoked at his death a will, in which the plaintiff was named as beneficiary to a large sum, and that the defendants immediately after the decease of said Eolland took possession of-this will, and have concealed or destroyed it, and denied its existence, so that the plaintiff has failed of her legacy. The only question is whether this constitutes a cause of action at law.

Under the law and practice in this Commonwealth, the Probate Court has exclusive original jurisdiction of all matters pertaining to proof of wills. Speaking generally, the Probate Court is established for the purpose of passing upon all probate matters. Hence such proceedings pertaining to wills, in the first instance, belong there, and its decrees touching those subjects are binding upon all other tribunals. The subject has been discussed in Waters v. Stickney, 12 Allen 1, Gale v. Nickerson, 144 Mass. 415, and Crocker v. Crocker, 198 Mass. 401, and it is not necessary now to traverse the ground anew. The Probate Court has. full authority in proper cases to allow the proof of a lost will by any competent evidence of its contents. Tarbell v. Forbes, 177 Mass. 238. Express provision is made in detail by E. L. c. 135, §§ 14, 15, requiring any person having the custody of the will of a deceased person to seasonably deliver it to the Probate Court having jurisdiction, with a heavy penalty upon one, who fails in this duty unreasonably, after being duly cited into court *386for this purpose, and conferring full power as to examination under oath of any suspected person. This court has never had occasion to consider what relief apart from statute might be open to persons injured by concealment or destruction of wills. The subject has been regulated by statute at least since Prov. St. 1692-3, c. 14, § 2; 1 Prov. Laws (State ed.) 45. Hill v. Davis, 4 Mass. 137. Decisions in other jurisdictions, where a different practice prevails, and where relief in chancery or otherwise has sometimes been afforded, need not be reviewed. It is possible that apart from the statute the Probate Court would be the only tribunal clothed with power in the premises. Stebbins v. Lathrop, 4 Pick. 33. But, however this may be, the subject is one of difficulty, and precisely what relief might be given and in what court is not clear, and has never been settled in this Commonwealth. Under these circumstances the statute has provided a clear, ample and expeditious remedy. By numerous decisions of this court, when the Legislature provides such a remedy, it has been held to be exclusive. Other relief will be refused where plain and adequate statutory redress is available. Attorney General v. New York, New Haven, & Hartford Railroad, 197 Mass. 194, and cases there cited.

Judgment affirmed.