322 Mass. 466 | Mass. | 1948
This amended bill in equity alleges that the plaintiff and the female defendant were the daughters and only heirs at law of Walter Micanowich; that the latter executed a will on July 28, 1944, which, notwithstanding the opposition of the plaintiff, was admitted to probate; that this will, other than a bequest of $1 to the plaintiff, devised and bequeathed all of the testator’s property to the female defendant; that the testator had been ill for a long time previous to his death on November 30, 1945; that while a patient at a convalescent home in November, 1945, he had “a conversation” with the female defendant and her husband, the other defendant, from which the defendants learned that the testator desired to have his attorney visit him for the purpose of making another will; that the defendants promised the testator that they would communi
The demurrers, besides setting up want of equity, allege various special grounds applicable to the whole or different parts of the bill. All grounds of these demurrers are open on appeal. Ratte v. Forand, 299 Mass. 185. Arena v. Erler, 300 Mass. 144. Siegel v. Knott, 316 Mass. 526.
A bill of complaint must state in clear and precise language all the material facts necessary to entitle the plaintiff to the relief sought in order that the defendant may be reasonably apprized of the nature of the claim and be able to file appropriate pleadings for the protection of his rights. Carson v. Gikas, 321 Mass. 468. Bressler v. Averbuck, ante, 139. The facts well pleaded and only the necessary inferences from those facts are admitted by a demurrer. Johnson v. East Boston Savings Bank, 290 Mass. 441. Chandler v. Lally, 308 Mass. 41. Becker v. Calnan, 313 Mass. 625. The bill is to be reasonably construed and is sufficient if it sets forth all the facts essential to a cause of action in such a manner as to be intelligently understood, even though it may contain minor defects which do not
The bill does not state the language of the alleged conversation between the testator and the defendants, but the various other allegations pertaining to this conversation clearly show that what the testator said was that he desired to have his attorney call upon him so that he could make another will leaving his property in equal shares to his two daughters. There is nothing in the contention that, even though the defendants promised to convey this message to the attorney, it was a gratuitous undertaking and the failure to perform would not impose any liability upon the defendants. The nonperformance by the defendants was only one of the elements of the plaintiff’s case and merely constituted one of the means by which the alleged fraud was perpetrated. The defendants not only failed to perform but they gave the attorney a false message so that he would not call upon the testator. It was unnecessary to allege the existence of a fiduciary relationship. The will of July 28, 1944, had never been revoked as matter of law, and the plaintiff need not go any farther than to show that the attempt of the testator to revoke that will and to execute another will was frustrated by the wrongful interference by the defendants with the expectancy of the plaintiff for their own personal gain. The issue now raised could not have been involved in the probate of the 1944 will, and the decree admitting this will to probate does not bar the plaintiff from maintaining the instant bill. Freeman, Judgments (5th ed.) § 814. The charge that the defendants entered into a conspiracy to prevent the execution of a new will amounts to no more than an averment that they acted jointly. Fleming v. Dane, 304 Mass. 46. Buckley v. John, 314 Mass. 719. The conclusion that they did prevent the decedent from making a new will is supported by the specific acts alleged to have been done by the defendants for the accomplishment of this purpose. The bill sufficiently alleges that the plaintiff, but for the conduct of the defendants, would have received one half of her father’s property. The most serious
We pass now to the objection that the plaintiff has a plain, complete and adequate remedy at law. There are strong intimations in our decisions that one who has been deprived of a devise, legacy or gift which a testator or donor would have given to him but for the wrongful interference of another may maintain an action of tort against the latter for the recovery of damages. Lewis v. Corbin, 195 Mass. 520. Ross v. Wright, 286 Mass. 269. Keegan v. Norton, ante, 158. It has also been intimated that one ought not to be allowed to profit by his own wrong, and that the property which he acquired by a fraud which prevented another for whom it was intended from receiving it may be impressed with a constructive trust for the benefit of the latter. Brignati v. Medenwald, 315 Mass. 636, 638. A remedy in equity where the plaintiff may lay hold of the property in the hands of the wrongdoer would be preferable in many cases to an action of tort. See Scott, Trusts, § 489.4; Pomeroy, Equity Jurisprudence. (5th ed.) § 1054c. Damages at best are only an approximation of the loss, while relief in equity, by requiring the wrongdoer to transfer to the intended devisee or legatee that which would have gone to him but for the fraud of the former, gives the in
All the other grounds of demurrer have been examined, but there is nothing in them calling for further discussion.
The bill sufficiently alleges that, but for the wrongful interference by the defendants with the attempt of the decedent to make a new will giving the plaintiff one half of his property, the plaintiff would have received this share of the property, and presents a case where a court of equity will impose a constructive trust for the benefit of the plaintiff to the extent of this share of the property which the defendants have wrongfully acquired. Dixon v. Olmius, 1 Cox Ch. 414. Barron v. Stuart, 136 Ark. 481. Brazil v. Silva, 181 Cal. 490. Dowd v. Tucker, 41 Conn. 197. Thomas v. Briggs, 98 Ind. App. 352. Gains v. Gains, 2 A. K. Marsh (Ky.) 609. Bohannon v. Wachovia Bank & Trust Co. 210 N. C. 679. Blanchard v. Blanchard, 32 Vt. 62. Restatement: Restitution, § 184, comment i. Scott, Trusts, § 489.4. Page, Wills, § 444. 98 A. L. R. 474.
The interlocutory decrees sustaining the demurrers and the final decree dismissing the bill are reversed.
So ordered.