Di Venuti v. De Luccia

• Citation: 47 N.E.2d 861,313 Mass. 775
• Parties: DI VENUTI et al. v. DE LUCCIA.
• Decision Date: 09 February 1943
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

313 Mass. 775

47 N.E.2d 861

DI VENUTI et al.

v.DE LUCCIA.

Supreme Judicial Court of Massachusetts.

Feb. 9, 1943.

Action of contract by Amalia DiVenuti and others against Grace DeLuccia to recover a proportionate part of the expenses of litigation in the probate court involving validity of the residuary clause of a will. From an order of the Appellate Division dismissing a report of denial by trial judge of three requests for rulings made by defendant, the defendant appeals.

Affirmed.J. E. Angoff and J. R. Zottoli, both of Boston, for plaintiffs.

V. Mottola, of Boston, for defendant.

RESCRIPT.

This is an action of contract brought in the Municipal Court of the City of Boston to recover a proportionate part of the expenses of litigation in the Probate Court involving the validity of the residuary clause of the will of one DeLuccia. There was a finding for the plaintiffs. The case comes before us on an appeal from an order of the Appellate Division dismissing a report of the denial by the trial judge of three requests for rulings made by the defendant. Two of these requests-numbered 1 and 3-were for rulings to the effect that the agreement between the plaintiffs and the defendant upon which the action was brought was champertous. There was no error in denying these requests. There was evidence, and the judge found, that there was an oral agreement between the plaintiffs and the defendant ‘by the terms of which the defendant agreed that she would participate in said litigation, and that if it was successful she would pay the plaintiffs one-eighth of the cost of said litigation, after deducting therefrom whatever sum might be allowed on account thereof from the general estate of said DeLuccia by the Suffolk Probate Court, and that if said litigation was unsuccessful, the defendant would be under no obligation to pay any part of the cost of said litigation.’ There was evidence, and the judge found, that the plaintiffs and the defendant were interested in the result of the litigation in the Probate Court and would benefit by a decision that the residuary clause of the will of DeLuccia was invalid, and that there was such a decision. In view of this evidence of the interests of the plaintiffs and the defendant in the result of the litigation it could not have been ruled that the agreement between them was champertous. Call v. Calef, 13 Metc. 362;Rindge v. Coleraine, 11 Gray 157, 162;Williams v. Fowle, 132 Mass. 385, 388, 389;Hadlock v. Brooks, 178 Mass. 425, 59 N.E. 1009;Reed v. Chase, 238 Mass. 83, 130 N.E. 257;Sherwin-Williams Co. v. J. Mannos & Sons, Inc., 287 Mass. 304, 313, 314, 191 N.E. 438;Baskin v. Pass, 302 Mass. 338, 341, 342, 19 N.E.2d 30; Am.Law Inst.Restatement: Contracts, § 543. Williston, Contracts (Rev.Ed.) § 1714. We do not intimate, however, that, even in the absence of such evidence of interest, the requested rulings could rightly have been made. See Blaisdell v. Ahern, 144 Mass. 393, 395, 396, 11 N.E. 681,59 Am.Rep. 99. The defendant makes the...