Buckley v. Gray
Before: Fleet
Synopsis
Negligence — Attorney and Client — Drawing or Will — Improper Action by Legatee.—A legatee named in a will cannot maintain an action to recover for alleged negligence of an attorney employed by the testator to draw the will, in so drawing it as not to express legally the desires or direction of the testator as to the exclusion of grandchildren, by which exclusion the legatee would have been benefited, and in further causing the legatee to become one of the subscribing witnesses, thus rendering the will void as to him; and a complaint of such legatee seeking to recover damages from the attorney for such alleged negligence does not state a cause of action.
Id.—Liability or Attorney for Negligence Limited to Client—Priority of Contract.—Where an attorney has been guilty of no fraud or collusion, nor of any malicious or tortious act, he is liable only to the client employing him for any injury arising from mere negligence, however gross, and cannot be held liable to a third party with whom he had no privity of contract.
Id.—Breach of Contract—Right of Third Party.—A third party has no right to maintain an action for injuries resulting from a breach of contract between two contracting parties.
Id.—Limit of Actionable Negligence—Duty.—The limit of the doctrine relating to actionable negligence, in the absence of fraud and collusion, is that the person causing the loss must owe a duty, arising from contract or otherwise, to the person sustaining such loss; and if there is no such duty no action can be maintained, no matter how great the loss of the plaintiff may be.
Id.—Contract for Benefit of Third Person—Construction of Code. Section 1559 of the Civil Code, which authorizes a third person to enforce a contract made by one person with another for his benefit, applies/ only to cases where the contract is made expressly for the benefit of the/ third person, and not where the third person is or may be incidentally or remotely benefited as a result of the contract.
Id.—Distinction between Will and Contract.—The terms of the contract of employment of an attorney to draft a will are distinct from the terms of the will; and the fact that the will may be intended for the benefit of a third person does not make the contract of employment of the attorney a contract made expressly for his benefit.
Id.—Intention of Testator—Effect of Will—Right of Legatee not Vested—Ultimate Injury—Damnum Absque Injuria.—The intention of a testator that the legatee should be benefited by being provided for in his will in a particular way, if carried out, could not create a vested right until the death of the testator, and until that event the will would remain ambulatory, and the provision for the legatee could be at any time changed or withdrawn; and any ultimate consequential injury to the legatee by the negligence of the attorney in not drafting the will according to the testator’s intention, however great it may be, is damnum, absque injuria, against which the courts cannot relieve.
Van Fleet, J. Action to recover for negligence of attorney in drafting and executing a will.
The court below sustained a demurrer to the complaint, and plaintiff failing to amend, judgment was entered against him, from which he appeals.
The complaint alleges, in substance, that on October 5, 1883, defendant, an attorney at law, was employed by Mrs. O. M. A. Buckley, the mother of plaintiff, to draw her will, which she desired and directed to be so drawn as to leave all the residue of her estate (after certain specific legacies), to her two sons, then living, the plain, tiff and one John P. Buckley, to the exclusion of the children of a deceased son of the testatrix; that in pursuance of such employment defendant on said day drew a will for said testatrix, and superintended and directed the execution thereof; that in the preparation of said will, and in directing the execution thereof, the defendant was guilty of gross carelessness and negligence in the performance of his professional duties, in this, that said will was so drawn as not to legally express the de[342]sires or direction of the testatrix as to the exclusion of said grandchildren, but in such manner that the latter were permitted under the will to take of her estate; and that in directing the execution of said will this plaintiff, although named ;in said will as one of the devisees thereunder, wa^jeaused by the defendant to become one of the subscribing'witnesses thereto, thereby rendering the provisions of said will as to the plaintiff void.
It is further alleged that said John P. Buckley died before the testatrix; that thereafter,- in May, 1891, said testatrix died without having revoked or altered said will; that the will was admitted to probate, and the estate of said testatrix duly administered, and that under the decree of distribution said grandchildren received one-half of said estate, amounting to eighty-five thousand dollars, in which amount plaintiff alleges himself damaged, and for which he asks judgment against defendant.
We think the demurrer was properly sustained. In our judgment the complaint clearly fails to state a cause of action against defendant in favor of the plaintiff. It is to be observed that the action is not by the client, but by a third party, her son. It is a general doctrine, sustained by an overwhelming weight of authority, that an ¿attorney is liable for negligence in the conduct of his professional duties, arising only from ignorance or want ¿pi care, to his client alone—that is, to the one between whom and the attorney the contract of employment and service existed, and not to third parties. The exceptions to this general rule, if they may be in strictness deemed such, are where the attorney has been guilty of fraud or collusion, or of a malicious or tortious act. Responsibility for a fraudulent act is independent of any contractual relation between the guilty party and the one injured; and one committing a malicious or tortious act to the injury of another is liable therefor, without reference to any question of privity between himself and the wronged one. Where, however, neither of these elements enter into the transaction, the rule is
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