Cole v. New England Trust Co.

Sheldon, J. The certificate issued by the defendant acknowledged that it had received the money from the judge of probate, and contained a promise to repay it to him or his assigns. It must be treated as showing that the agreement was made with him. The agreed facts sufficiently show that the deposit was intended to be made under the provisions of Pub. Sts. c. 144, § 16, now R L. c. 150, § 23. These provisions contemplated that the amount so deposited should “ accumulate for the benefit of the person entitled thereto,” and accordingly the defendant agreed to pay interest thereon at the annual rate of two and a half per cent, reserving however the right, upon giving ten days’ notice, to reduce the rate or discontinue the payment of interest. The defendant now contends that by reason of its notice of May 31, 1895, to Mr. Thompson, the cestui qae trust for whose benefit the deposit was held, especially in view of its letter of June 14, 1895, to the register of probate, its liability to pay interest was determined; and this is the question contained in the case. The debt from the defendant was due to the judge of probate, [598] and Thompson had only an equitable interest therein. Chase v. Thompson, 153 Mass. 14. The defendant’s notice to stop the accruing of interest should therefore have been given to the judge of probate, who, in the ordinary case of an unclaimed deposit made under the statute in question, would be the only person who could withdraw the deposit and place it where it might continue to accumulate as contemplated by the statute. The defendant’s right to give the notice either by personal service or “ through the post office, directed to the address named ” on its own books, is not of consequence; for it does not appear that the defendant had put any such address on its books, and its counsel at the argument in this court disavowed any desire to have the agreed facts discharged or amended in this respect.. We think it plain that neither a notice of one day given to Thompson, nor a letter to the register of probate stating the claim that the stipulated interest had ceased in consequence of that notice to Thompson, can be said to be a ten days’ notice to the judge of probate, especially when it does not appear that either the notice or the letter was brought to the knowledge of the judge. The defendant could terminate its agreement to pay interest at the stipulated rate only by meeting the burden of showing that it had given the notice specified in its agreement to the person and in the manner therein provided. This it has not done; and accordingly its liability has continued under its original agreement. It cannot of course be held liable for a higher rate of interest than was stipulated for, but it must be held to perform the agreement which it made. We have carefully considered the suggestions made in the able argument for the defendant; but we have not been able to assent to them. As to the defendant, the title to the deposit was in the judge of probate. The deposit was made in his name, as the statute contemplated that it should be; the defendant’s promise was to pay to him or his assigns ; under the agreement no one could require payment without his order and authority, whether the deposit was or was not made under the statute. He was in no sense the principal or the agent of Thompson, or ¡■of any one else who might have been found to be entitled to the .money. And the plaintiff does not strictly claim under Thomp [599] son, but under the decree made by the judge of probate on October 24, 1907. Without this decree the plaintiff would have had no standing in court. There can be no presumption that a letter to the register of probate is given to the judge, nor is the former in any sense the agent of the latter. He is a public officer whose duties are prescribed by law, and the defendant’s letter was addressed to him in his official capacity only. There was no duty upon Thompson either to take any action or to give any counter notice to the defendant when he received its unauthorized notice. His inaction could create no estoppel that would be operative against any future order of the judge of probate; and manifestly the plaintiff cannot be in a worse position than Thompson would have been. Accordingly, under the agreement of the parties, a decree is to be entered that the plaintiff recover of the defendant the sum of $2,049.67, without costs. So ordered.