# First Natl. Bank of Boston v. First Natl. Bank Boston

> Massachusetts Supreme Judicial Court · April 27, 1978 · 375 Mass. 121

URL: https://www.frixlaw.com/law-library/cases/9738440

## Case

- **Full name:** The First National Bank of Boston, Executor vs. the First National Bank of Boston, Trustee, & Others
- **Court:** Massachusetts Supreme Judicial Court
- **Decided:** April 27, 1978
- **Citations:** 375 Mass. 121; 375 N.E.2d 1185; 1978 Mass. LEXIS 963
- **Precedential status:** Published
- **Opinion:** Dissent by Quirico
- **Judges:** Hennessey, Quirico, Kaplan, Wilkins, Abrams
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9738440

## Opinion text

Quirico, J.
(dissenting). I dissent from the opinion of the court in this case for the same reason that I dissented in Babson v. Babson, 374 Mass. 90, 106 (1977), which involved facts substantially similar to those in the present case. Here again we have a complaint seeking relief under G. L. c. 231A and which alleges that “a present controversy exists between the United States Internal Revenue Service [which is not made party to the case] and the Petitioner,” but which alleges no controversy between the plaintiff and any of the defendants. The only real controversy seems to be one with *126 the plaintiff and the defendants on one side and the Internal Revenue Service on the other. The latter is not before the court and cannot be brought before this court without its consent, and it has not agreed to submit to the jurisdiction of this court.
The First National Bank of Boston (bank) brought this action in its capacity as executor of the will of Leon W. Crockett. The bank named as defendants in the complaint (a) itself in its capacity as trustee under each of two trusts under the will, (b) the testator’s widow, “and his son and only heir-at-law,” then living, and (c) four other persons who appear from the will to be two brothers, a nephew and a niece of the testator. Neither the bank in its capacity as trustee nor any of the individual defendants has appeared or filed an answer in the case. I believe that this is indicative of the absence of any actual controversy between the parties. On the other hand, if there is an actual controversy, it does not appear from the record why the bank as trustee, or a substitute trustee if the bank would otherwise be in a position of representing conflicting interests, filed no answer in the Probate Court and has filed no brief before this court.
A guardian ad litem was appointed by a judge of the Probate Court to represent “persons, not ascertained or not in being who are or may become interested in said case,” and he filed a report in that court agreeing with the contention of the plaintiff in the latter’s controversy with the Internal Revenue Service. He also joined the plaintiff in a statement of agreed facts which is before us, but he has submitted no brief nor otherwise participated in the proceedings before this court.
Thus, as in Babson v. Babson, supra, we are again being asked to adjudicate an alleged controversy as to which all the parties named in this proceeding have a common interest on the same side of the controversy, and the only real adversary in the controversy, the Internal Revenue Service, is not before the court. I do not believe that we should purport to adjudicate alleged controversies in such a vacuum.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9738440. Public record. Not legal advice.