Lewis v. Corbin

• Decision Date: 15 May 1907
• Citation: 81 N.E. 248,195 Mass. 520
• Parties: LEWIS v. CORBIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

195 Mass. 520

81 N.E. 248

LEWIS v. CORBIN.

Supreme Judicial Court of Massachusetts, Suffolk.

May 15, 1907

COUNSEL

William H. Garland, for plaintiff.

Horace G. Allen and Harry W. Conant, for defendant.

OPINION

KNOWLTON C.J.

This is an action of tort in which the defendant is charged with having deprived the plaintiff of a legacy, through his fraud in inducing a testatrix to execute the codicil by which the legacy purported to be given with only one witness, whereby the codicil was rendered invalid. The legatee named in the codicil was the plaintiff's father, who had deceased before the codicil was made, although neither the testatrix nor the defendant then knew of his death.

One question is whether this legacy, which would be void at common law (see Maybank v. Brooks, 1 Brown, Ch. Cas. 76; Dildine v. Dildine, 32 N. J. Eq. 78-80; Moss v. Helsley, 60 Tex. 426-436), is within Rev. Laws, c 135, § 21, which provides that when a devise or legacy is made to a child or other relation of the testator who dies before the testator, leaving issue surviving the testator such issue shall take the gift, unless the will requires a different disposition of it.

This court, in Paine, Petitioner, 176 Mass. 242, 57 N.E. 346 held, without discussion of this statute, that a legacy 'to the children of my deceased brothers and sisters' went in part to the issue of one of these children who had died before the making of the will, and it is therefore an authority in favor of the plaintiff's contention. In Nutter v. Vickery, 64 Me. 490, and Moses v. Allen, 81 Me. 268, 17 A. 66, the subject was considered, and a statute which is substantially the same as this was held to include legacies to persons who had died before the making of the will. Brookhouse v. Pray, 92 Minn. 448, 100 N.W. 235, is to the same effect. See, also, for similar decisions, Minter's Appeal, 40 Pa. 111; Winter v. Winter, 5 Hare, 306; Mower v. Orr, 7 Hare, 473. We are of opinion that the purpose of the Legislature is best accomplished by holding the statute applicable to devises and legacies given to relations who died before the making of the will, as well as legacies and devises to those who died after the making of the will.

The defendant relies upon Lindsay v. Pleasants, 39 N.C. 320-323, Scales v. Scales, 59 N.C. 163-166, Twitty v. Martin, 90 N.C. 643-646, Billingsley v. Tongue, 9 Md. 575, and Almy v. Jones, 17 R.I. 265-270, 21 A. 616, 12 L. R. A. 414. The statutes in North Carolina and in Maryland, under which these cases arose, use the word 'lapse,' and they contain provisions which indicated to the court an intention of the Legislature to recognize a distinction between legacies that might lapse and those that would be void at common law. In Rhode Island the statute applies only when a 'person having a devise or bequest * * * shall die before the testator.' This language was held inapplicable to one who died before the devise or bequest was made.

The defendant contends that the plaintiff's declaration fails to aver damage suffered by him on account of the defendant's misconduct. It is true, as he argues, that in order to create a liability of this kind, there must be, not only a wrong inflicted by the defendant, but damage to the plaintiff resulting directly therefrom. Lamb v. Stone, 11 Pick 527, 534, 535; Wellington v. Small, 3 Cush. 145-149, 50 Am. Dec. 719; Bradley v. Fuller, 118 Mass. 239-241. See, also, Jenks v. Hoag, 179 Mass. 583-585, 61 N.E. 221; Freeman v. Venner, 120 Mass. 424, 426, 427; Adler v. Fenton, 24 How. (U. S.) 408-410, 16 L.Ed. 696.

In this case the averments are, in substance, that the defendant was the executor and residuary legatee named in a will of one Jane v. Corbin, and that she formed a purpose to give a legacy of $5,000 to Henry G. Lewis, the plaintiff's father, who was her second cousin; that she was over 80 years of age, and, for advice and assistance in matters of business, was dependent upon the defendant, who occupied a confidential relation towards her; that, wrongfully and fraudulently intending and contriving to defeat her will and intention, and to deprive and defraud Henry G. Lewis and his heirs of the sum of $5,000, he advised and procured the testatrix to execute a codicil to her will in the presence of only one witness, namely, the defendant, whereas the law of Rhode Island required the execution of the codicil in the presence of more than one witness, as the defendant well knew. It is then averred that the estate of the testatrix was large, and that, if the codicil had not failed for want of due attestation owing to the fraud practiced by the defendant, the plaintiff would have received about $1,650.

Whether a person named as legatee has a remedy, in a case like this is a question which, so far as we know, has never been decided in this commonwealth. See Melanefy v. Morrison, 152 Mass. 473-476, 26 N.E. 36. The testatrix, desiring to give the legacy and intending to express her desire in a way that would be effectual after her death, unless in the meantime she should change her purpose, was fraudulently induced to express it inefectually, when she supposed that she had made a legal and valid codicil. Plainly such fraudulent conduct was a wrong upon the plaintiff as well as upon the testatrix. The question in the case is whether the plaintiff has averred sufficient facts to show that damage resulted to him directly as a consequence of the wrong. The defendant relies strongly upon Hutchins v. Hutchins, 7 Hill, 104, decided by the Supreme Court of New York. The declaration in that case charged that the plaintiff's father had made a will devising a farm to the plaintiff, and that the defendants, who were interested in the testator's estate, he being a feeble man, advanced in years and incapable of transacting business, fraudulently induced him to make another will in which the devise to the plaintiff was omitted. The case was heard on a demurrer. The court said: 'Fraud without damage, or damage without fraud gives no cause of action; but where both concur, an action lies. * * * The only foundation of his claim rests upon the mere unexecuted intention of his father to make a gift of the property, and this cannot be said to have conferred a right of any kind. To...