Ryan v. Ryan

• Decision Date: 05 December 1994
• Citation: 419 Mass. 86,642 N.E.2d 1028
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Peter B. RYAN & others 1 v. Anne T. RYAN. 2

Page 1028

642 N.E.2d 1028

419 Mass. 86

Peter B. RYAN & others ¹ v. Anne T. RYAN. ²

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Sept. 13, 1994.

Decided Dec. 5, 1994.

Erik Lund & Richard W. Renehan, Boston (Michael J. Pineault with them), for defendant.

Laurence M. Johnson, Boston (Daniel J. Goldberg & Matthew D. Baxter with him), for plaintiffs.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

WILKINS, Justice.

When Paul Mark Ryan (Ryan), a member of the Massachusetts bar, wished to obtain an annulment from the Catholic Church of his marriage to Marion Stephanie Fleming (Fleming) in order to be able to marry Anne "Nancy" T. McDevitt (McDevitt) within the church, as McDevitt insisted, Ryan approached Fleming for her cooperation. Relations between Ryan and Fleming, who had been legally divorced in 1977, were cordial. Fleming indicated that she would assist in his request for an annulment.

The jury could have found that, in the course of discussions of an annulment, when Fleming asked Ryan what his intentions were concerning the rights of their four children to inheritance at his death, Ryan assured her that they would inherit two-thirds of his estate. According to the uncorroborated testimony of one of the Ryan children, Lisa Ryan Ziobro, Fleming further asked Ryan whether his promise needed to be in writing, and Ryan replied that his oral promise was enforceable.

This appeal largely concerns Ryan's alleged statement that his oral promise to leave two-thirds of his estate to his four children was enforceable. On the defendant's motion for summary judgment with respect to certain counts of the complaint, the judge correctly ruled that the oral promise itself was not enforceable and granted summary judgment to the defendant on counts based on that promise. The children also asserted a claim of malpractice against Ryan's estate on the theory that Ryan, acting implicitly as Fleming's attorney, negligently advised her that his oral promise was enforceable. It is on this theory that the jury decided in favor of the plaintiff children. ^{3 3}

The annulment was granted in 1986, and Ryan promptly married McDevitt within the Catholic Church. He died approximately two and one-half years later. Ryan had executed a new will after his marriage to McDevitt in which he did not leave two-thirds of his estate to his children but rather favored his new wife. ⁴ After an abortive attempt to challenge the will in the Probate and Family Court, the children and Fleming brought this action in the Superior Court. ⁵

McDevitt, as executrix of Ryan's estate, appeals from a judgment that awarded the plaintiffs two-thirds of the value of their father's estate. ⁶ The plaintiffs also appeal, challenging (a) the granting of summary judgment to the defendant on certain counts of the complaint and (b) the judge's denial of their attempt to obtain access to documents that Fleming had submitted to representatives of the Catholic Church in connection with the annulment. We allowed the parties' application for direct appellate review.

The most challenging question concerns the propriety of the jury's verdict allowing the plaintiffs to recover on their malpractice claim, the consequence of which is that they recover precisely what they could not properly obtain in seeking to enforce Ryan's oral promises concerning the disposition of his estate at death. After we conclude that the malpractice claim survived Ryan's death, we decide that the evidence that Ryan advised Fleming that his oral promise was enforceable was insufficient to warrant submission of that claim to the jury.

1. The defendant contends that the plaintiffs' malpractice claim did not survive Ryan's death. Actions of contract based on malpractice survive the death of an attorney. McStowe v. Bornstein, 377 Mass. 804, 806-807, 388 N.E.2d 674 (1979). We have left open, and need not now decide, the question whether a claim of legal malpractice sounding in tort survives the death of an attorney. Id.

The defendant argues that the plaintiffs' malpractice claim is only a tort claim. We disagree. Assuming that (a) there was an attorney-client relationship between Ryan and Fleming and (b) that relationship involved an implied agreement by Ryan to conduct himself reasonably according to the ordinary skill of an attorney in the circumstances, Ryan's alleged misstatement that his oral promise was enforceable would be a breach of that implied contract. The plaintiffs claim that they were intended beneficiaries of Ryan's agreement to leave them two-thirds of his estate and that his negligence as an attorney caused that inheritance to fail because their mother did not know that she should insist on a written promise from Ryan. Without deciding by implication any other issue concerning the validity of the third-party beneficiary claim, we hold that the contract aspect of the plaintiffs' malpractice claim survived Ryan's death.

2. The evidence did not warrant a finding that Ryan told Fleming that his oral promise to leave two-thirds of his estate to their children was enforceable. The defendant's motion for a judgment notwithstanding the verdict should have been allowed. ⁷

There is considerable evidence that Ryan promised his former wife that he would leave two-thirds of his estate to their children. He apparently erroneously believed that would be the consequence if he were to die without a will. ⁸ Ryan also promised that, if he made a will, he would ensure that the dispositional result would be the same. Ryan's promises were unenforceable either as a promise to make a disposition of property at death (G.L. c. 259, §§ 5, 5A [1992 ed.] ) or as a basis for overriding the provisions of his will (G.L. c. 191, § 1 [1992 ed.] ).

The plaintiffs were successful before the jury on a different theory of liability, one not directly based on Ryan's breach of his oral promise concerning the distribution of his estate at death. That theory is premised on the implied existence of an attorney-client relationship between Ryan and Fleming. Without deciding the points, we shall assume for discussion purposes that such a relationship existed ⁹ and that the plaintiffs are entitled to assert their malpractice claim as third-party beneficiaries of Ryan's promise. The plaintiffs contend that their father negligently advised their mother as her lawyer that his oral promise to provide for them at his death need not be in writing and that his negligent advice caused them, the intended beneficiaries of that promise, to lose the promised inheritance. The plaintiffs' malpractice claim thus depends on adequate proof that Ryan advised Fleming that his oral promise to leave two-thirds of his estate to his children was enforceable.

The enforcement of Ryan's oral promise, which, as a practical matter, granting relief to the plaintiffs would do, would in effect override both the Statute of Frauds and a major portion of Ryan's intentions expressed in his will. Principles underlying the Statute of Frauds and the Statute of Wills require that we demand reliable proof in the malpractice claim that Ryan not only promised his former wife that he would leave his children two-thirds of his estate but also advised her that his oral promise was enforceable. We conclude that, although the evidence warranted a finding that Ryan promised to leave two-thirds of his estate to his children, the evidence was insufficient to warrant a finding that Ryan told his former wife that his oral promise was enforceable.

The sole evidence that supports the plaintiffs' theory that Ryan said that his oral promise was enforceable came from Lisa Ryan Ziobro. She testified to a 1985 telephone conversation with Fleming in which her mother recounted Ryan's promise that two-thirds of his estate would go to their children at his death. Ziobro testified that then her mother had "said that she'd specifically asked my father whether [the promise] had to be in writing. And he said that an oral contract was legally binding. And that she could rely on that." None of the other Ryan children testified to having heard of such an assurance from their mother or from their father. Nor is there any other corroborative source for Ziobro's testimony that Ryan had said that his oral promise was legally binding.

The self-interested, uncorroborated testimony of Ziobro concerning what one deceased person (Fleming) said that another deceased person (Ryan) had represented as a rule of law is not sufficient to warrant a finding that Ryan advised Fleming that his oral promise was enforceable. We do not accept that testimony as sufficient to support a verdict that in effect enforces Ryan's otherwise unenforceable oral promise concerning the disposition of his estate at death (and also in effect overrides a major portion of Ryan's intention expressed in his last will). We are concerned here more with the preservation and application of principles that underlie rules that govern the transfer of property than we are with legal malpractice.

Proof sufficient to override the purposes behind the Statute of Frauds and the Statute of Wills in this circumstance must be clear and persuasive. The principles underlying those statutes have such force that proof of legal malpractice in this case required more than the Ziobro testimony, uncorroborated on the essential question of the furnishing of negligent legal advice. See Foley v. Coan, 272 Mass. 207, 209-210, 172 N.E. 74 (1930) (proof of gift in contemplation of death "must be convincing, though it need not reach the certainty required in criminal proceedings," because safeguards required by statute for disposition of property by will are lacking); Coghlin v. White, 273 Mass. 53, 55, 172 N.E. 786 (1930) (proof by oral evidence of lost will must be strong, positive, and free from doubt); Coolidge v. Loring, 235 Mass. 220, 224, 126 N.E. 276 (1920) (reformation of trust instrument on ground of mistake...