[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 427 This is an action in tort to recover damages for malicious destruction of a will. Plaintiff had verdict and judgment.
The will, in which defendant was named executrix, admittedly was destroyed by her after the death of her husband, the testator, because of dissatisfaction with its terms. Some four years later she filed a petition in probate court to have the destroyed will allowed. In that proceeding the attorney who drafted the will testified that it contained a bequest of $2,000 to plaintiff. Plaintiff, upon learning of the bequest to her, became a party to the proceeding and was represented by counsel. Another witness, who had read the will, denied that it contained a legacy to plaintiff. A third witness was uncertain. The will was admitted to probate but without a legacy to plaintiff. In the order admitting the will, the court recited the substance of the testimony upon the claimed bequest to plaintiff and determined it could not be established as part of the will because there was only one witness in support of the gift; the law requiring two witnesses. 3 Comp. Laws 1915, § 13788; Dingman v. Dingman, 199 Mich. 384. Thereupon plaintiff began this action in trespass on the case to recover the amount of the claimed legacy on *Page 428 account of malicious and fraudulent destruction of the will, which prevented her proving the gift to her and defeated her legacy.
Argument and citation of authority can add nothing to the obvious proposition that the unlawful and unjustifiable, and, therefore, malicious, destruction of a will, resulting in direct loss to a legatee, is a wrong for which there must be a remedy. The authorities in direct point are few, but they support the right to action, although the remedies approved are diverse.
In 1746, in Tucker v. Phipps, 3 Atk. 359 (26 Eng. Rep. Reprint, 1008), the high court of chancery of England, on the ground of malicious and fraudulent spoliation, sustained a bill to recover a legacy from a person who had destroyed a will, without requiring plaintiff first to prove the will before the ecclesiastical court, which had exclusive jurisdiction over wills of personal property. In Mead v. Heirs of Langdon, unreported, referred to in Heirs of Adams v. Adams, 22 Vt. 50, a court of equity decreed the payment of legacies in a will suppressed by those interested in the estate, although the will had never been proved in probate. In Dulin v. Bailey,172 N.C. 608 (90 S.E. 689, L.R.A. 1917 B, 556), and Taylor v.Bennett, I Ohio Cir. Ct. Rep. 95, it was held that an action in tort would lie for malicious destruction of a will.
The only other case in point cited or found isThayer v. Kitchen, 200 Mass. 382 (86 N.E. 952, 43 L.R.A. 746), which defendant urges as controlling. The court held that an action in tort would not lie because the probate court had exclusive jurisdiction over wills, because a statute substantially identical with our 3 Comp. Laws 1915, §§ 13777, 13778, provided a clear, ample, and expeditious remedy, and, *Page 429 as the question of relief through an action at law had not been settled in that State and was of difficulty, the statutory remedy was exclusive. These statutes require a person named as executor in a will to present it to the probate court within 30 days after death of the testator or after the executor learns that he has been named, and, on failure without reasonable cause, provide liability to each person interested in the will in the sum of $10 per month for the period of default, to be recovered in an action on the case.
Thayer v. Kitchen could be distinguished on the ground that, as pointed out in the opinion, the will there could have been proved in probate court by any competent evidence, so the same testimony which would have sustained an action at law presumably would have been sufficient to prove the will. More of the wrong done by spoliation could be remedied in probate court there than in the instant case, where the gravamen of defendant's offense was that, through destruction of the best evidence, and because of the statutory requirement of two witnesses, she had deprived plaintiff of all remedy in probate court.
In this State the probate court is given no authority to invade the province of common-law courts to award damages for torts, whether in connection with wills or otherwise. Even the damages permitted under the statute relied on by defendant must be recovered in an action on the case.
Defendant's contention would enable an executor to destroy a will, then petition for its probate as a lost will within the 30-day period, escape all penalties, and leave the wronged legatees remediless. Definite language evidencing clear intent would be necessary to work so intolerable a result. The statute *Page 430 seems too plain to require construction. It created the duty of celerity in presenting a will and provides a stated penalty for delay. It does not cover the distinct wrong of spoliation or provide a remedy for the varied damages which may result therefrom.
Action on the case
— "is an outgrowth of the principle that, whenever the law gives a right or prohibits an injury, it will also afford a remedy. Hence, where there has been an injury for which none of the established forms of action will lie, an action on the case may be maintained, it being no objection that there is no precedent for the particular action, since the action is suited to every wrong and grievance that a person may suffer, and varies according to the circumstances of the case." 11 C. J. p. 4.
The suit was properly laid.
Defendant further contends that the decision of the probate court was res adjudicata of the claim of plaintiff to a legacy. A judgment is not res adjudicata unless the identical matter in issue in the subsequent proceeding was determined by the former adjudication. Murphy Chair Co. v. American Radiator Co.,172 Mich. 14. The whole order of the probate court may be consulted to determine what was actually passed upon. Black v.Miller, 75 Mich. 323; Bond v. Markstrum, 102 Mich. 11. A lost will may be allowed in part if the parts are separable, as was plaintiff's legacy. In re Estate of Patterson, 155 Cal. 626 (102 P. 941, 26 L.R.A. [N. S.] 654, 18 Ann. Cas. 625, 132 Am. St. Rep. 116); Heath v. Withington, 60 Mass. 497; Thornton on Lost Wills, p. 153; 40 Cyc. p. 1237. The probate court did not determine that the will allowed was the whole will nor that the true will did not contain a legacy to *Page 431 plaintiff. It merely decided that the preliminary proof required by statute, in order to enable the court to pass upon the legacy, had not been furnished. The issue here, whether as a matter of fact the will contained a legacy to plaintiff, never reached the stage of decision in probate court, nor was its determination necessarily included in the judgment.
It is also the rule that
— "the same transaction or state of facts may give rise to distinct or successive causes of action, and a judgment upon one will not bar a suit upon another. Therefore a judgment in a former suit, although between the same parties and relating to the same subject-matter, is not a bar to a subsequent action, when the cause of action is not the same." 34 C. J. p. 813.
See, also, Aldine Manfg. Co. v. Barnard, 84 Mich. 632.
As illustrating this rule, it has been held that judgment for defendant in a suit on a promissory note is not a bar to an action for fraud and deceit practiced on plaintiff by defendant to induce the purchase of the note. Black v. Miller, supra. A judgment at law on a note is not a bar to a suit to set aside a mortgage, given as security for the note, on the ground that the note had in fact been paid. Rickle v. Dow, 39 Mich. 91.
The probate proceedings did not involve defendant's personal liability for tort. The tort action did not set up the will as against the probate judgment, alter its operation as a conveyance, or affect the distribution of the estate or defendant's rights as heir or legatee. They are separate causes of action.
It should be kept in mind that the damage to plaintiff from defendant's tort arose out of her being deprived of the legacy because the destruction of the *Page 432 will rendered proof of the legacy impossible. If she still could have proved it in probate court, she would have received no injury from the tort in respect of the amount of the legacy. The best evidence of her inability to prove the legacy would come from bona fide but unsuccessful attempt to establish it in probate court. The attempt would also be a fulfilment of her duty to minimize damages from the tort. It was for defendant's benefit. Plaintiff should not be penalized for performing her duty and seeking the best evidence of her damage. There is neither legal nor equitable reason for transforming the judgment that plaintiff did not make the statutory proof into a judgment that the will did not contain a legacy to her. Without such transformation it cannot be held that the former judgment is a bar to the present case under any theory of resadjudicata.
We have discovered only one case which is somewhat similar, although Willard v. Shekell, 236 Mich. 197, is of interest. InHarris v. Harris, 26 N.Y. 433, plaintiffs and defendants were heirs at law of John Harris. Plaintiffs brought partition proceedings for the division of the real estate. Defendants claimed the entire ownership of the land under a lost will of their father. Plaintiffs replied that defendants had brought an action in the supreme court to have the lost will proved, had been defeated after trial, and the judgment was conclusive on them. The ground of their defeat was that they could not produce two witnesses who could testify to the provisions of the will as required by statute. The court held with defendants, both because the probate of a will of real estate establishes ownership only prima facie and failure to probate is, therefore, not conclusive, and also because the first judgment was not res adjudicata of the will as probate had failed on account of statutory proof. *Page 433
The probate judgment did not bar this suit.
Defendant further urges that plaintiff must prove the legacy in this suit by two witnesses, and, having failed to do so, cannot recover. The statute, 3 Comp. Laws 1915, § 13788, reads:
"No such alleged will shall be admitted to probate unless and until its due execution and the contents thereof shall be established by at least two reputable witnesses."
By its context, terms, and purpose, the statute is confined to proceedings to probate a will, and does not affect the rules of evidence in other courts or actions, Harris v. Harris,supra.
Defendant's contention that plaintiff cannot recover because the legacy could not become a vested right until after the will including such legacy was probated is fully answered inMitchell v. Langley, 143 Ga. 827 (85 S.E. 1050, Ann. Cas. 1917 A, 469), if, indeed, answer is necessary.
We have examined the other assignments and find no error therein.
Judgment is affirmed, with costs.
NORTH, C.J., and CLARK and SHARPE, JJ., concurred with FEAD, J.