I am of opinion that the defendant is entitled to judgment.
Ordered accordingly.[[554]]
LEWIS v. CORBIN
Supreme Judicial Court, Massachusetts, May 15, 1907.
Reported in 195 Massachusetts Reports, 520.
Action of tort. Demurrer to declaration.
Knowlton, C. J.[[555]] 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. chap. 135, sec. 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.
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 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.