Creek v. Laski

• Decision Date: 03 December 1929
• Docket Number: No. 150,June Term.,150
• Citation: 227 N.W. 817,248 Mich. 425
• Parties: CREEK v. LASKI.
• Court: Michigan Supreme Court

248 Mich. 425

227 N.W. 817

CREEK

v.LASKI.

No. 150, June Term.

Supreme Court of Michigan.

Dec. 3, 1929.

Error to Circuit Court, Jackson County; James A. Parkinson, Judge.

Action by Irene Creek against Lucy K. Laski. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before the Entire Bench. Bisbee, McKone & Wilson, of Jackson, for appellant.

Whiting & Kleinstiver, of Jackson, for appellee.

FEAD, J.

This is an action in tort to recover damages for malicious destruction of a will. Plaintiff had verdict and judgment.

The will, in which defendant was named executrix, admittedly was destroyed by her after the death of her husband, the testator, because of dissatisfaction with its terms. Some two years later, she filed a petition in probate court to have the destroyed will allowed. In that proceeding the attorney who drafted the will testified that it contained a bequest of $2,000 to plaintiff. Plaintiff, upon learning of the bequest to her, became a party to the proceeding and was represented by counsel. Another witness, who had read the will, denied that it contained a legacy to plaintiff. A third witness was uncertain. The will was admitted to probate, but without a legacy to plaintiff. In the order admitting the will, the court recited the substance of the testimony upon the claimed bequest to plaintiff, and determined it could not be established as part of the will, because there was only one witness in support of the gift, the law requiring two witnesses. Comp. Laws 1915, § 13788; Dingman v. Dingman, 199 Mich. 384, 165 N. W. 712.

Thereupon plaintiff began this action in trespass on the case to recover the amount of the claimed legacy, on account of malicious and fraudulent destruction of the will, which prevented her proving the gift to her and defeated her legacy.

Argument and citation of authority can add nothing to the obvious proposition that the unlawful and unjustifiable, and therefore malicious, destruction of a will, resulting in direct loss to a legatee, is a wrong for which there must be a remedy. The authorities in direct point are few, but they support the right to action, although the remedies approved are diverse.

In 1746, in Tucker v. Phipps, 3 Atk. 359, 26 Eng. Rep. Reprint, 1008, the High Court of Chancery of England, on the ground of malicious and fraudulent spoliation, sustained a bill to recover a legacy from a person who had destroyed a will, without requiring plaintiff first to prove the will before the Ecclesiastical Court, which had exclusive jurisdiction over wills of personal property. In Mead v. Heirs of Langdon, unreported, referred to in Adams v. Adams, 22 Vt. 50, a court of equity decreed the payment of legacies in a will suppressed by those interested in the estate, although the will had never been proved in probate. In Dulin v. Bailey, 172 N. C. 608, 90 S. E. 689, L. R. A. 1917B, 556, and Taylor v. Bennett, 1 Ohio Cir. Ct. R. 95, it was held that an action in tort would lie for malicious destruction of a will.

The only other case in point cited or found is Thayer v. Kitchen, 200 Mass. 382, 86 N. E. 952, which defendant urges as controlling. The court held that an action in tort would not lie, because the probate court had exclusive jurisdiction over wills, because a statute substantially identical with our Comp. Laws 1915, § 13777, and section 13778, provided a clear, ample, and expeditious remedy, and, as the question of relief through an action at law had not been settled in that state and was of difficulty, the statutory remedy was exclusive. These statutes require a person named as executor in a will to present it to the probate court within 30 days after death of the testator, or after the executor learns that he has been named, and, on failure without reasonable cause, provide liability to each person interested in the will in the sum of $10 per month for the period of default, to be recovered in an action on the case.

Thayer v. Kitchen could be distinguished on the ground that, as pointed out in the opinion, the will there could have been proved in probate court by any competent evidence; so the same testimony which would have sustained an action at law presumably would have been sufficient to prove the will. More of the wrong done by spoliation could be remedied in probate court there than in the instant case, where the gravamen of defendant's offense was that, through destruction of the best evidence, and because of the statutory requirement of two witnesses, she had deprived plaintiff of all remedy in probate court.

In this state the probate court is given no authority to invade the province of common-law courts to award damages for torts, whether in connection with wills or otherwise. Even the damages permitted under the statute relied on by defendant must be recovered in an action on the case.

Defendant's contention would enable an executor to destroy a will, then petition for its probate as a lost will within the 30-day period, escape all penalties, and leave the wronged legatees remediless. Definite language evidencing clear intent would be necessary to work so intolerable a result. The statute seems too plain to require construction. It created the duty of celerity in presenting a will and provides a stated penalty for delay. It does not cover the distinct wrong of spoliation, or provide a remedy for the varied damages which may result therefrom.

Action on the case ‘is an outgrowth of the principle that, whenever the law gives a right or prohibits an injury, it will also afford a remedy. Hence, where there has been an injury for which none of the established forms of action will lie, an action on the case may be maintained, it being no objection that there is no precedent for the particular action, since the action is suited to every wrong and grievance that a person may suffer, and varies according to the circumstances of the case.’ 11 C. J. 4. The suit was properly laid.

Defendant further contends that the decision of the probate court was res adjudicata of the claim of plaintiff to a legacy. A judgment is not res adjudicata, unless the identical matter in issue in the subsequent proceeding was determined by the former adjudication. Murphy Chair Co. v. American Radiator Co., 172 Mich. 14, 137 N. W. 791. The whole order of the probate court may beconsulted to determine what was actually passed upon. Black v. Miller, 75 Mich. 323, 42 N. W. 837;Bond v. Markstrum, 102 Mich. 11, 60 N. W. 282. A lost will may be allowed in part, if the parts are separable, as was plaintiff's legacy. In re Estate of Patterson, 155 Cal. 626, 102 P. 941,26 L. R. A. (N. S.) 654, 132 Am. St. Rep. 116,18 Ann. Cas. 625;Heath v. Withington, 6 Cush. (60 Mass.) 497; Thornton on Lost Wills, 153; 40 Cyc. 1237. The probate court did not determine that the will allowed was the whole will, nor that the true will did not contain a legacy to plaintiff. It merely decided that the preliminary proof required by statute, in order to enable the court to pass upon the legacy, had not been furnished. The issue here, whether as a matter of fact the will contained a legacy to plaintiff, never reached the stage of decision in probate court, nor was its determination necessarily included in the judgment.

It is also the rule that ‘the same transaction or state of facts may give rise to distinct or successive causes of action, and a judgment upon one will not bar a suit upon another. Therefore a judgment in a former suit, although between the same parties and relating to the same subject matter, is not a bar to a subsequent action, when the cause of action is not the same.’ 34 C. J. 813. Aldine Manufacturing Co. v. Barnard, 84 Mich. 632, 48 N. W. 280.

As illustrating this rule, it has been held that judgment for defendant in a suit on a promissory note is not a bar to an action for fraud and deceit practiced on plaintiff by defendant to induce the purchase of the note. Black v. Miller, supra. A judgment at law on a note is not a bar to a suit to set aside a mortgage, given as security for the note, on the ground that the note had in fact been paid. Rickle v. Dow et al., 39 Mich. 91.

The probate proceedings did not involve defendant's personal liability for tort. The tort action did not set up the will as against the probate judgment, alter its operation as a conveyance, or affect the distribution of the estate or defendant's rights as heir or legatee. They are separate causes of action.

It should be kept in mind that the damage to plaintiff from defendant's tort arose out of her being deprived of the legacy, because the destruction of the will rendered proof of the legacy impossible. If she still could have proved it in probate court, she would have received no injury from the tort in respect of the amount of the legacy. The best evidence of her inability to prove the legacy would come from bona fide, but unsuccessful, attempt to establish it in probate court. The attempt would also be a fulfilment of her duty to minimize damages from the tort. It was for defendant's benefit. Plaintiff should not be penalized for performing her duty and seeking the best evidence of her damage. There is neither legal nor equitable reason for transforming the judgment that plaintiff did not make the statutory proof into a...