HENRY H. LEWIS vs. WILLIAM L. CORBIN.

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. 76; Dildine v. Dildine, 32 N. J. Eq. 78, 80; Moss v. Helsley, 60 Tex. 426, 436,) is within the R. L. 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, 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 Maine, 490, and Moses v. Allen, 81 Maine, 268, 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, is to the same effect. See also, for similar decisions, Minter's appeal, 40 Penn. St. 111; Winter v. Winter, 5 Hare, 306; Mower v. Orr, 7 Hare, 473. We are

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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, 4 Ired. Eq. 320, 323; Scales v. Scales, 6 Jones Eq. 163, 166; Twitty v. Martin, 90 N. C. 643, 646; Bettingsly v. Tongue, 9 Md. 575, and Almy v. Jones, 17 R. I. 265, 270. 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. Bradley v. Fuller, 118 Mass. 239, 241. See also Jenks v. Hoag, 179 Mass. 583, 585; Freeman v. Venner, 120 Mass. 424, 426, 427; Adler v. Fenton, 24 How. 408, 410.

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 eighty 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,

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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 practised 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. 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 ineffectually, 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 hold otherwise and sanction the doctrine contended for by the plaintiff would be next to saying that every voluntary courtesy was matter of legal obligation, and that private thoughts and intentions concerning benevolent or charitable distributions of property might be seized upon as the foundation of a right which the law would deal with and protect. . . . But the law applicable to the cases referred to proceeds upon the ground that the plaintiff,

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by the wrongful act complained of, has been deprived of the present actual enjoyment of some pecuniary advantage. No such damage can be pretended here. At best the contemplated gift was not to be received until after the death of the plaintiff, or the testator might change his mind, or lose his property." This case has been cited with approval in this Commonwealth and elsewhere. Randall v. Hazelton, 12 Allen 412, 116. Emmom v. Alvord, 177 Mass. 466, 471. Adler v. Fenton, 24 How. 408, 410. We have been referred to no other decision upon similar facts, and we have found no other. It seems pretty plain that, if a suit were brought in the lifetime of the testator, immediately after the practice of the fraud, no substantial damage could be recovered. Very likely the court was right in deciding that no action could be maintained. The plaintiff's relation to the subject to which the fraud was directed was not close enough to cause him pecuniary loss, apart from the happening of subsequent events. Even if there were no fraud the legacy might never take effect. The testator might lose his property, or destroy his will, or make a different one. But the fraud put the plaintiff in a less advantageous position than he otherwise would have occupied in reference to the probability of receiving property under the will, and this change of position, accomplished by a fraud, naturally and probably might deprive him of that which, with fair dealing, he would receive. It seems to us that, while the fraud does not cause substantial damage apart from the happening of subsequent events which reasonably may be expected to happen, if these do happen the defendant is chargeable with the natural consequences of his act. Suppose, in the present case, that the testatrix did not change her purpose to give the legacy of $5,000 to Henry G. Lewis, and that for the rest of her life she desired and intended that this legacy should take effect, and thought that it would take effect. The fraud then would be operative up to the time of her death, and would accomplish the result intended by its author, by depriving the legatee of that which otherwise he would have received. It is averred that the testatrix left an estate sufficient to pay all or nearly all of this legacy, with the others. If the facts supposed above are proved, does it not follow that the fraud directly and proximately caused the

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plaintiff's loss of his legacy? The defendant cannot complain that these supposed facts followed as conditions concurring with his fraud to cause the damage. His fraud was planned in reference to the probability that these events would follow. In Hutchins v. Hutchins, supra, there was no averment to show that the fraud was operative up to the time when the title to the property was changed by the death of the testator. The court treated the case as if the testator might have changed his purpose as to the disposition of his estate, for reasons of his own, independently of the fraud.

While the declaration in the present case declares a result which might justify an inference that the loss was caused by the fraud alone, the averment seems hardly more than a statement of a conclusion of law from the facts given previously. Upon demurrer we think the pleading is defective in not averring facts which exclude the possibility that the testatrix changed her purpose in regard to this legacy, and which show that the fraud continued operative to the time of her death, and thus caused the loss to the plaintiff.

We think the charge of fraud is a sufficient statement of an actionable wrong. It charges much more than an expression of opinion by which the testatrix was misled. The defendant is accused of having dealt with a matter of fact, and with having fraudulently procured the making of the codicil without sufficient attestation of it.

We infer from the record that the testatrix was domiciled in Massachusetts, and that the construction of the will is governed by the law of this State. Welch v. Adams, 152 Mass. 74, 79. Sewall v. Wilmer, 132 Mass. 131, 136.

Demurrer sustained.