Wilmot v. Moody

The plaintiff, as the executrix of the estate of Samuel M. Ricker, deceased, brought this action against the defendants as the members of a copartnership engaged in the practice of law, and who had been employed by her as such to advise and assist her in the probate of the will of the deceased and the administration of his estate, to recover the sum of two thousand dollars.

The complaint contained two counts, the first of which was based upon allegations of negligence in that the defendants allowed the statute of limitations to run against a promissory note for one thousand dollars, executed by one Sylvester M. Rice, and being part of the assets of the estate, so that the amount of the note was lost. The burden of the second count was that the defendants had persuaded and induced the plaintiff, as such executrix, to loan to Elmer I. Moody, one of their number, the sum of one thousand dollars upon his promissory note, representing that the note would be secured by a mortgage on real property of greater value than the amount of the loan; that after the making of said loan and the acceptance by the plaintiff of said note of one thousand dollars executed by Moody, the defendants represented to her that a mortgage securing the same had in fact been executed and was "in the bank," together with a certificate of title relating thereto, whereas in truth no such mortgage had been or ever was executed, and that as the *Page 158 result of this transaction the estate was damaged in the amount of said loan. Following these averments of the second count and based thereon is an allegation that by reason of the fraudulent representations, facts, and circumstances therein set forth, the defendants fraudulently disposed of the money, goods, chattels, and effects of the estate.

Judgment was prayed against the defendants for the sum of two thousand dollars.

The answer of the defendants denied the material allegations of the complaint, and also pleaded certain special defenses to be hereafter referred to, and in support thereof introduced evidence at the trial that as to the cause of action contained in said first count the plaintiff and her brother and sister, being legatees of the entire estate and entitled to have distributed to them the whole thereof, had by agreement among themselves, and more than one year after the death of the decendent, their legacies being then due and payable, divided among them the personal property of the estate, and had executed and delivered to one another quitclaim deeds to the real property thereof without waiting for formal distribution by order of the probate court, and that the plaintiff under such division had received the Rice note as part of her share of said estate. That at said time the defendants, who had theretofore had possession of the securities belonging to the estate, delivered all of them to the plaintiff and her colegatees, and which delivery occurred about six months before the Rice note became barred by the statute of limitations. That the defendants, through Elmer I. Moody (who, of the members of the partnership, attended exclusively to the affairs of the estate), shortly before the date when said note became outlawed advised and warned the plaintiff to take steps before said date should arrive to have the same collected or renewed, but which advice and warning were not heeded.