Licata v. Spector

• Decision Date: 09 November 1966
• Docket Number: No. 2934,2934
• Citation: Licata v. Spector, 225 A.2d 28, 26 Conn.Supp. 378 (Conn. Ct. Com. Pl. 1966)
• Court: Connecticut Court of Common Pleas
• Parties: Samuel LICATA, Administrator (ESTATE of Lilly LICATA) et al. v. John A. SPECTOR.

Page 28

225 A.2d 28

26 Conn.Supp. 378

Samuel LICATA, Administrator (ESTATE of Lilly LICATA) et al. v.John A. SPECTOR.

No. 2934.

Court of Common Pleas of Connecticut, Windham County.

Nov. 9, 1966.

Robert W. Gordon, Manchester, for plaintiffs.

Regnier, Moller & Taylor, Hartford, for defendant.

GRILLO, Judge.

This is an action initiated by the administrator of the estate of Lilly Licata(first count) and the children of Lilly Licata(second count).The fundamental allegations of the first count are as follows: (a)The defendant, an attorney at law, was retained by Lilly Licata to draft her last will and testament; (b) the will failed to provide for the required number of witnesses (General Statutes § 45-161); (c) as a result of this deficiency, the Probate Court refused to admit the will into the Probate Court and declared the will invalid; (d) because of the drafter's negligence, certain assets of the estate have been diverted to persons other than those set forth in the will; (e) the decedent's estate has suffered loss and damage to the extent of $7500.The second count incorporates the allegations of the first count with the exception of the paragraph relating to damages and alleges that as a result of the defendant's negligence in drafting the will certain assets of the decedent's estate which were, by the will, to have been distributed to the plaintiffs, named as beneficiaries in the will, were diverted to others.

The defendant demurs to the first count on the ground that that count fails to set forth any injuries or damages by the administrator.While it may be true that looking into the future trial it is difficult to see how the estate was damaged to the extent claimed, nevertheless there is an allegation, which of course the demurrer admits, of loss and damage to the decedent's estate in the amount of $7500.The challenge proffered by the defendant's demurrer is predicated on the claim that certain elements of alleged damage are improper rather that on the basis that the complaint sets forth a defective cause of action.The demurrer was not the proper means of raising the question of improper elements of damage.Under the allegations of the complaint, the plaintiff administrator was entitled to at least nominal damages, since every invasion of a legal right imports damage.Urvan v. Hartford Gas Co., 139 Conn. 301, 93 S.2d 292.An attack relating to the elements of damage should be made by motion and not by demurrer.Seidler v. Burns, 84 Conn. 111, 79 A. 53, 33 L.R.A., N.S., 291;Lessard v. Tarca, 20 Conn.Sup. 295, 133 A.2d 625;cf.Foram v. Carangelo, 153 Conn. 356, 216 A.2d 638.

The contention of the demurrer with reference to the second count is that the beneficiaries are owed no duty by the defendant and that furthermore there was no privity of contract existing between the plaintiff beneficiaries and the defendant.With reference to count two, it might be well to point out that the facts alleged therein, as in count one, set forth an action based on negligence arising out of a contractual relationship.Dean v. Hershowitz, 119 Conn. 398, 406, 177 A. 262.The question raised by the demurrer to count two, therefore, would seem to pose the question: Can a legatee under a will which is declared invalid and inoperative because of a lack of statutory requisites as to attesting witnesses, a defect allegedly caused by the drafter's negligence, maintain an action against the drafter for the loss sustained by the legatee in being deprived of his legacy under the will?A duty of care to perform such a contract may be justified by projecting into this field the cardinal principles of negligence law, and such a duty would be owed to those foreseeably injured by negligent performance, or nonperformance, in a way over and above the withholding of the benefit contracted for, i.e. the drafting of a proper will, without regard to any question of reliance under the contract.Liability for a negligent performance of a contract, or nonperformance, should be imposed where the injury to the plaintiff is foreseeable and where the contract is an incident to an enterprise of the defendant and there are adequate reasons from policy for imposing a duty of care to avoid the risk thus encountered, as an incident to the enterprise.2 Harper & James, Torts § 18.6, pp. 1052, 1053.That the drafting of wills by an attorney is related to the 'enterprise' of the defendant needs no discussion.State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 234, 140 A.2d 863, 69 A.L.R.2d 394.

Would the allegations set forth in the complaint permit evidence of a factual situation which would satisfy the requirements of the rule of foreseeability of harm?Noebel v. Housing Authority, 146 Conn. 197, 148 A.2d 766.On December 12, 1964, the defendant was consulted by the decedent for the admitted purpose of providing legacies to her children, and a last will was drafted by counsel, the defendant.The testatrix died February 18, 1965.The will, lacking the required number of witnesses, was declared invalid, and the children lost their legacies.In a real and material way, the loss resulting from the negligence was not the estate's but that of the disappointed beneficiaries.The potency of injury to the legatees if the will were declared invalid was patent.Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, 59 A.L.R. 1253.The will was declared invalid, and the financial damage to the plaintiffs ensued.Can there be any doubt as to what was the proximate cause, juridically considered, of the unfortunate event and that it would be well within the realm of reasonable foreseeability that such harm would be likely to result from the negligence?Orlo v. Connecticut Co., 128 Conn. 231, 237, 21 A.2d 402;Miner v. McNamara, 81 Conn. 690, 72 A. 138, 21 L.R.A.,N.S., 477.

Does the public policy of the state permit the imposition of a duty under the allegations set forth?There are cogent reasons why it does.A testatrix consults her attorney and is given the assurance that the objects of her affection will receive their just legacies at her death.Neither she nor the beneficiaries, who, in all probability, do not know of the will's provisions or possibly even of the existence of the will, know of the disappointment that lies ahead-that her purpose will be completely thwarted because of the negligence of the drafter.The technical legal knowledge required in the drafting of a will and the atmosphere of privacy desired by a testatrix with relation to both the contents of the will and the safekeeping of the will make...