Bullowa v. Gladding

100 A. 249, 40 R.I. 147, 1917 R.I. LEXIS 17

• Court: Supreme Court of Rhode Island
• Decided: March 14, 1917
• Status: Published

Opinions

Parkhurst, X

This is an action of trespass on the case for deceit.

The plaintiff in his declaration sets forth that the said Ardelia C. Dewing, in April, 1914, made certain false and fraudulent representations with relation to the financial condition of the M. Dewing Company, a corporation, then carrying on business in Providence, Rhode Island; that she stated that it was the owner of property of great value in and leases of oyster beds in Connecticut and in Rhode Island, and in certain real estate, plant and equipment at New Haven, Connecticut, and at Providence, Rhode Island, and what its assets and liabilities were and how it had provided for the redemption of its preferred stock of fifteen hundred shares, of the par value of $150,000, by insurance aggregating $150,000 on the lives of its officers; and ‘ ‘ that said . . . corporation had assets greatly in excess of all its liabilities and its capital stock and was in a sound financial condition; and that its preferred stock was worth more than its par value;

“And the plaintiff avers that all said representations were not only untrue, but were made by the said Ardelia Cook Dewing with knowledge of their falsity and with the intention that the plaintiff should believe them and act in reliance upon their truth;

“And the plaintiff further avers that he did not know of the falsity of said representations but believed them and each of them to be true, and in reliance upon the truth of said representations and each of them he was thereafter induced by said Ardelia Cook Dewing to buy and did buy of said The M. Dewing Company twenty-nine (29) shares of its preferred stock and paid therefor a large sum of money, to wit the sum of twenty-nine hundred dollars ($2900) on the tenth day of.September, .1914, at Providence aforesaid, which said^shares of stock were then and are still of no value, said corporation being wholly insolvent, whereas if the aforesaid representations had been true, said shares would have been worth at least as much as the plaintiff paid for them; in consequence whereof the plaintiff has wholly lost said large sum of money paid for said shares as aforesaid and the interest thereon from said tenth day of September, 1914.” . .

The plaintiff further avers the death of said Ardelia O. Dewing on the 21st day of March, 1915, and the appointment of said defendant George D. Gladding as executor under her will on the 23d day of April, 1915; that-on July 22d, 1915, he filed his claim against Mrs. Dewing’s estate in the Municipal Court in the amount of $4,000; and that said claim was disallowed by the executor on the 6th day of October, 1915. This suit was brought by writ dated March ■ 23d, 1916, and served March 27th, 1916, against said Gladding as executor of the will of Ardelia Cook Dewing.

The declaration contains a second count in substantially the same terms except as to the second paragraph of said second count, which is as follows: “And the plaintiff avers that all said representations were untrue and were made by said Ardelia Cook Dewing positively, as of her own knowledge, when she did not in good faith believe them to be true and knew of facts and circumstances sufficient to charge her with knowledge of the falsity of said representations, which were made by her with the intention that the plaintiff should believe them arid act in reliance upon their truth.”

The defendant filed a demurrer to each of said counts, stating as cause of demurrer, “ that said count does not set forth a cause of action which survived the death of Ardelia Cook Dewing. ” ...

After hearing upon the demurrer in the Superior Court sitting in Providence, the demurrer was sustained; the plaintiff took exception to the decision sustaining the demurrer, and in due time prosecuted his exception to this court, and the 'case is now before this court upon his bill of exceptions.

(1) The sole question, raised before this court therefore is whether the cause of action survives the death of Mrs. Dewing and whether the action can be maintained against her executor.

Our statute providing for the survival of actions, in addition to -those which survive by the common law, appears in the revision of 1844, being the first revision of our laws after the adoption of our State Constitution (Pub. Laws of E. I., 1844, pp. 132-133, § 25). So far as need be here considered it reads as follows: “ Sec. 25. In addition to the actions which survive by the common law, the following shall also survive, viz.: actions of replevin and trover; actions of waste; actions of trespass for assault, battery, imprisonment, or for goods taken and carried away; and actions of trespass and trespass on the case for damages done to real or personal estate. ’ ’

In the next revision of our laws (Eev. Stats. 1857, Chap. 176, § 10, p. 426) this language was changed and reads as follows: “ Sec. 10. In addition to the causes of action and actions which survive at common law the death of the plaintiff or defendant therein, the following-causes of action and actions shall also survive:-—

“ First. Causes of action and actions of waste;

“ Second. Causes of action and actions of replevin and trover;

“ Third. Causes of action and actions of trespass and trespass on the case for damages to the person, or to real and personal estate.”

This statute of 1857 has been reenacted in all subsequent revisions with some slight verbal changes and additions, but with no substantial change down to the last revision in 1909. General Laws of 1909, Chapter 283, provides as follows: “ Sec. 7. In addition to the causes of action and actions which at common law survive the death of the plaintiff or defendant therein, the following causes of action or actions shall also survive:

“ First. Causes of action and actions of waste.

“ Second. Causes of action and .actions of replevin and trover.

“ Third. Causes of action and actions of trespass and trespass on the case for damages to the person or to real and personal estate.

“ Sec. 8. All the causes of action and actions in the preceding section mentioned may he originally brought and prosecuted by and against executors and administrators; and if brought or prosecuted by or against any person in his lifetime, may be prosecuted or defended by his executor or administrator.

“ Sec. 9. Whenever any of said causes of action or actions are, originally or by survival, brought or prosecuted by or against the executor or administrator of the party originally liable, the plaintiff shall be entitled to recover only the value of the goods taken, or the damage actually sustained, without any vindictive or exemplary damages, or damages for any alleged outrage to the feelings of the injured party.”

The statute in substantially its present form has been several times before this court for the -determination of its construction and effect and was very carefully and fully considered. See Aldrich v. Howard, 8 R. I. 125; Reynolds v. Hennessy, 17 R. I. 169; Aylsworth v. Curtis, 19 R. I. 517.

(2) Aylsworth v. Curtis, supra, was broug’ht in the lifetime of plaintiff Aylsworth to recover of the defendant Curtis, who had been convicted of larceny from Aylsworth of certain personal property, double the value of that property under Pub. Stat. R. I., 1882, cap. 204, § 22, which provides that “ Whenever any person shall be convicted of larceny, he shall be liable to the owner of the money or articles taken for twice the value thereof, unless the same be restored, and for the value thereof in case of restoration.” Subsequently to the commencement of the action plaintiff died, and the defendant pleaded the death of the plaintiff in abatement. The plaintiff’s. executors thereupon entered their appearance in the case and filed a demurrer to the defendant’s plea, and the question presented by the demurrer was whether the cause of action survived the plaintiff’s death. The statute relating to survivals of action (Pub. Stat. 1882, Chap. 204, § 8) quoted in the case, was in all essential respects the same as the statute of 1909 above quoted. The court, per Tillinghast, J., p. 518, proceeds as follows: “ The statute relating to the survival of actions, Pub. Stat. R, I., cap. 204 § 8, is as follows, viz.: £ In addition to the causes of action and actions which survive, at common law, the death of the plaintiff or defendant therein, the following causes of action and actions shall also survive : First. Causes of action and actions of waste. Second. Causes of action and actions of replevin and trover. Third. Causes of action and actions of trespass and trespass on the case for damages to the person or to real and personal estate. ’

£< We think this statute is clearly broad enough to include the case before us unless the action is a penal one, which we will consider later. The cause of action is the damage done by the defendant to the personal estate of the plaintiff in feloniously depriving him of. the property set out and described in the indictment. And it certainly cannot be seriously contended that the larceny of personal property from the plaintiff did not result in a direct and immediate damage to his personal estate. This statute was fully considered in Aldrich v. Howard, 8 R. I. 125, where it was held that it ‘ provides not only for eases of trespass, where the injury is not only the direct but the immediate effect of a wrongful act forcibly done, but for actions of the case, where the damages are not immediate, but, to be recoverable, must be the natural and proximate consequence of the wrongful act alleged.’ If an action on the ease for creating a nuisance, whereby the plaintiff in that case suffered damages to his hotel, survives under the statute, a fortiori the action now before us, which is brought to recover damages for the larceny of the plaintiff’s personal property, survives also. In Reynolds v. Hennessy, 17 R. I. 169, it was held that damages by a wrongful act to something recognized as personal estate gives rise to an action which survives both for and against an executor or administrator under said statute. In discussing the question of the survival of the action in that case, the court said: ‘ We think it is clearly deducible from all the cases that, where there is simply a tort, not otherwise affecting the estate itself than by an indirect loss, an action ex delicto does not survive. . . '. The difficulty generally is in drawing the line between tortious acts which must be held to damage one’s personal estate and those which do not.’ The case at bar is clearly one where the act complained of must be held to damage the personal estate of the deceased, and hence the action survives under the decision just referred to, unless it be held to be a penal action as aforesaid.” The court then proceeds to decide that the action is not a penal action, and holds that it survives the death of the plaintiff.

Reynolds v. Hennessy, 17 R. I. 169, considered the same statute as to survival of actions; it was an action of trespass on the case for deceit consisting of false, fraudulent and deceitful conduct and representations on the part of the defendant Hennessy whereby the plaintiff’s intestate James Reynolds had been deprived of his vendor’s lien upon a certain piece of real estate. It was held in substance that a vendor’s lien was personal estate, and that the plaintiff’s intestate having been deprived thereof by the fraudulent and deceitful conduct and representations of Hennessy, to the damage of the plaintiff’s intestate, the cause of action survived to Reynolds’ administrator, and also survived as against the administrators of Hennessy. In the suit of Reynolds v. Hennessy the vendor’s lien of which fhe plaintiff’s intestate was deprived was a chose in action, which would have enabled James Reynolds, if he had not lost it through the unlawful conduct of Hennessy, to recover the balance of money due him on foreclosure sale under a mortgage held and foreclosed by Hennessy. If such a loss as was held in that case was a damage to personal estate under the statute of survivals, we are unable to see how it can be claimed in the case at bar that the loss to the plaintiff of the sum of $2,900 by reason of his purchase of worthless stock consequent upon the false and fraudulent representations of the defendant’s testatrix is not equally a damage to the plaintiff’s personal estate; it is as much a direct loss to plaintiff’s estate in this case as was the loss of goods in the Aylsworth case, or as the loss of a vendor’s lien in the Reynolds case. By the purchase of preferred stock in the case at bar, the plaintiff acquired a right to participate in the distribution of the surplus assets of the M. Dewing Company on liquidation of that company after payment of its debts. Upon the representations of the defendant’s testatrix he was entitled to believe and did believe (upon the face of the declaration) that the stock was worth what he paid for it; it turns out to be worthless; surely his personal estate is as much and as directly damaged by this loss of money as was the estate of James Reynolds when he was deprived of a lien by means of which his administrator could have recovered what was due to the intestate.

(3) The question before us in this case is whether this action is an action of “ trespass on the case for dam ages ” . . . “ to personal estate.” We are of the opinion that the words “ personal estate ” in this statute should have what appears to us to be their plain and obvious construction, vis.: “ every species of property not of a freehold nature, including not only goods and chattels, but rights and credits also.” See 32 Cyc. 666, 667.

The case of Bellows v. Adm’r. of Allen, 22 Vt. 108 (cited in Reynolds v. Hennessy, supra), was a suit in trespass on the case brought against the defendant Allen, in his lifetime, as sheriff, for the default of his deputy in not paying to the plaintiff money collected and received by the deputy upon ah execution in favor of the plaintiff. Allen, the sheriff, died while the suit was pending, and his administrator moved to dismiss the suit upon the ground that the cause of action did not survive. It appeared that the money collected by the deputy had never in fact been received by Allen; the .County Court dismissed the suit, and the plaintiff excepted.

The Supreme Court of Vermont, holding that this action survived the death of the defendant and could be prosecuted against his administrator, used the following language: “ Section 10 of Chapter 48 declares, that, ‘ in addition to the actions which survive by the common law the following shall survive and may be commenced and prosecuted by the executor, or administrator, that is to say, actions of ejectment, or other proper actions to recover the seizin and possession of lands, actions of replevin ancj. trover, and actions of trespass and trespass "on the case for damages done to real and personal estate.’ The twelfth section of the same chapter makes the remedies by and against executors and administrators reciprocal, so that any cause of action, which would survive in favor of an executor, or administrator, is declared to survive against him. If the administrator of the plaintiff, in this case, could maintain the action against the sheriff, while in life, for this default, then the administrator of the sheriff must be held liable.

‘ ‘ I entertain no doubt, that the cause of action in this case would have survived to the administrator of the plaintiff. The last clause of the tenth section of the statute before recited gives to executors and administrators the actions of ‘ trespass and trespass on the case for damages done to real or personal estate.’ The word ‘ personal/ in this clause, is contrasted with the word ' real,’ and the term ‘ personal estate,’ in the connection in which it is used, must be understood to embrace every species of property not of a freehold nature, including not only goods and chattels, but rights and credits also. Such is the ordinary legal signification of the term. In that sense the words ‘ personal estate ’ are generally, if not universally, used throughout the Revised Statutes. Thus, the statute provides in one section, that real estate may be disposed of by will, and in another that' personal estate ’ may be disposed of in the same manner; noncupative wills of ' personal estate ’ are allowed; a soldier may by such will dispose of his wages, or other ‘ personal estate; ’ the ‘ personal estate ’ of an intestate is first made chargeable with his debts, and when the ‘ personal estate ’ is found insufficient, real estate is to be sold for their payment. In all these and numerous other instances, which might be mentioned, the words personal estate are evidently used to embrace every description of property, not coming under the denomination of real estate. And I apprehend there can be no doubt whatever, that the legislature, in passing the statute giving the actions of trespass and trespass on the case for damages clone to personal estate, intended to furnish a remedy for injuries done to the rights and credits of a testator, or intestate, as well as to his specific goods and chattels.

‘ ‘ The value of a debt due, as well as of a tangible article of property, may be impaired, or destroyed, by the act or neglect of another; ancl the owner of such debt would suffer damage thereby, for whiqli he might always have had a remedy by action. The framers of the statute intended such remedy should survive to the representative of him, who had suffered the damage. If the plaintiff’s administrator were now suing for the sheriff’s default, the action would be one of that description. The act of the defendant, by his deputy, in collecting the money in discharge of the plaintiff’s debt and neglecting to pay it over, is a plain and manifest damage to the plaintiff’s personal estate, the remedy for which would survive to his administrator by the statute; and surviving to him, it would consequently survive against the estate of the defendant, who committed the injury.”

This language just quoted well expresses the view of this court both as to the broad meaning of the words “ personal estate,” and as to the intention of the legislature in passing the act here under consideration.

The defendant’s counsel relies very much upon the case of Read et al. v. Hatch, 19 Pick. 47 (1837), and upon several cases in Massachusetts and elsewhere which follow' that case.

Read et al. v. Hatch was an action on the case, brought by the plaintiffs, merchants in Boston, against the defendant, who resided in Bangor, Maine, charging that the defendant falsely and fraudulently recommended another person as a trader in good credit and worthy to be intrusted with goods, by reason of which representations the plaintiffs were induced to sell him goods on credit and thereby sustained damage.

Pending the suit the defendant died and plaintiffs moved to cite' in his administrator. This motion wras resisted by an amicus curice on the ground that the action did not survive under the statute of Massachusetts (Bev. Stat. 1836, c. 93, § 7), which provided that “ actions of trespass and trespass on the case for damage done to real or personal estate ” shall survive. The court said: “ Shaw, C. J. The question whether the plaintiffs can cite in an administrator and proceed with their action, depends on Revised état., c. 93, § 7. It is contended that a false representation, by which one is induced to part with his property, by a sale on credit to an insolvent person, by means of which he is in danger of losing it, is a damage done to him in respect to his personal property. But we are of the opinion that this would be a forced construction, and not conformable to the intent of the statute. If this were the true construction, then every injury by which one should be prevented from pecuniary gain, or subjected to pecuniary loss, would, directly or indirectly, be a damage to his personal property. But we are of opinion that it must have a more limited construction, and be confined to damage done to some specific personal estate, of which one may be the owner. A mere fraud or cheat, by which one sustains a pecuniary loss, cannot be regarded as a damage done to personal estate.

‘£ The action is abated at common law, by the death of the defendant, and not surviving by force of the statute, must be deemed to stand abated. ’ ’ N

This case seems to have been followed or approved in several other Massachusetts cases. See Cutting v. Tower, 14 Gray 183; Leggate v. Moulton, 115 Mass. 552; Houghton v. Butler, 166 Mass. 547; Jenks v. Hoag, 179 Mass. 583; in each case reaffirming the general doctrine of Read v. Hatch, that a mere fraud or cheat, by which one sustains a pecuniary loss, cannot be regarded as a damage done to personal estate.”

It will be noted that in Read v. Hatch the decision seems to rest wholly upon the words of the statute, “ damage done to . . . personal estate,” and that therefrom a rather narrow construction of the statute has arisen. In Cutter v. Hamlen, 147 Mass. 471, which was an action against a landlord for deceit in letting a dwelling house infected with diphtheria, causing injuries to the persons who occupied under, the lease, and where it was held that the action survived against the defendant’s executor, the court said, through Holmes, J., 147 Mass., page 472: “ If we assume, as is argued on behalf of the executor, that both counts of the declaration are counts in deceit, it does not follow that the action will not survive. It is settled in this Commonwealth, that the provisions of the Pub. Sts., Chap. 165, § 1, that actions for ‘ damage done to real or personal estate ’ shall survive, does not apply to mere impoverishing of a man’s estate generally, but requires that damage to some specific property should be alleged and proved. Read v. Hatch, 19 Pick. 47; Leggate v. Moulton, 115 Mass. 552. In England a more liberal rule seems, to have been established. Twycross v. Grant, 4 C. P. D. 40. But Leggate v. Moulton implies, as plainly as the English cases decide, that an action for injury to specific property —r and by the same reasoning under our statute an action for injury to the person — will survive as well when the wrong'is brought to pass by fraud as when it is done by force. See Hatchard v. Mege, 18 Q. B. D. 771; Oakey v. Dalton, 35 Ch. D. 700.”

In view of this narrow construction of the Massachusetts statute due apparently to the emphasis laid upon the words “ damage done,” &c., we do not feel that these cases should have any persuasive force with this court in. the construction of our statute above quoted where the broader language is “ causes of action and actions of trespass and-trespass on the case for damages to the person or to real and personal estate.”

It should be noted at this point that the original words of our original statute (Pub. Laws, 1844, p. 132, § 25) above cpioted, “ actions of trespass and trespass on the case for damages done to real or personal estate,’’ are identical in effect with the words of the Massachusetts statute, “ damage done to real or personal estate; ” that in Rev. Stat. of 1857, above quoted, the word ‘ ‘ done ’ ’ is left out, and the language is broadened to include “ causes of action and actions of trespass and trespass on the case for damages to the person, or to real and personal estate.” These changes are material and substantial in that they include “ damages to the person ” not previously mentioned; they leave out the word “ done,” which appears in Bead v. Hatch, supra, to have been regarded as an important and controlling word confining the application of the statute ‘ ‘ to damage clone to some specific personal estate; ” they also add the words “ causes of action; ” thereby broadening the statute to include expressly not only actions already commenced before the death of a party, but causes of action which previously existed, where action was not commenced or defended in the lifetime of the party deceased, but after his death by or against an executor or administrator. We think it is to be inferred from these changes of language that our legislature thereby intended to broaden the scope of the statute relating to survival of actions as we have heretofore set forth.

The defendant also cites Jones v. Estate of Ellis, 68 Vt. 544, which was for deceit in the sale of stock, somewhat like the case at bar, under a statute of Vermont in the same words as the Massachusetts statute above referred .to in Bead v. Hatch. The opinion is short, and no cases are cited, although it would seem that the court followed the doctrine of Read v. Hatch and other Massachusetts cases which were cited by counsel; the court says, page 547: “A fraud committed by one, the result of which creates a liability upon another to pay money, is not such a damage done to the latter’s personal estate as will create a cause of action which survives.”

Killen v. Barnes, 106 Wis. 546, 560, expressly follows the case of Read v. Hatch in the construction of a statute of Wisconsin of the same terms as that of Massachusetts.

Stebbins v. Dean, 82 Mich. 385, also follows the Massachusetts doctrine above set forth in construing the same statutory language.

Other cases cited by defendant’s counsel do not appear to be applicable to the case at bar. We do not find in any of the cases cited by defendant’s counsel, relating as they do to statutes of the same language and purport as in Read v. Hatch, such weight-as to lead us to attempt to apply them in the construction of our own statute.

We find support for the plaintiff’s contention, that this' action survives, in-certain cases both in England and in this country.

In Twycross v. Grant, 4 C. P. D. 40 (1878), the English Court of Appeal held that an action in all respects similar in its legal aspect to the case at bar survived to the administratrix of the plaintiff. The action was brought by the plaintiff James Twycross against Grant and others to recover back £700, the price of shares in a joint stock company, on the ground that he had been induced to buy the shares in question by the fraudulent suppression by the defendants, the promoters of the company, in the prospectus published by them, of certain contracts which ought to have been disclosed therein pursuant to Section 38 of the Companies Act, 1867 (30 & 31 Viet., c. 131).

After the case had been tried to a jury and a verdict for plaintiff had been had, and judgment for the plaintiff had been sustained by the Court of Appeal, and pending an appeal to the House of Lords, the plaintiff died, his administratrix duly appointed and qualified was ordered to “be made a party to the action, and that she be at liberty to carry on and prosecute the same against the defendants.” This order was contested before the Common Pleas Division and was sustained in favor of the administratrix; and defendants appealed. In the Court of Appeal it was held that the action survived, and the appeal was dismissed; all three judges concurred. We quote the whole opinion of Bramwell,- L. J,, because it •shortly summarizes the English law with regard to survivals of action under the Stat. 4 Edw. 3, c. 7, and 3 & 4 Vm. 4, c. 42, § 2.

“ Bramwell, L. J. In my opinion this appeal must be dismissed.. It is clear that at common law the rule as to •torts was correctly expressed by the maxim, ‘Actio personalis moritur cum persona.’ This rule was greatly-altered at an early stage of our legal history by 4 Edw. 3, c. 7, and this statute being remedial in its nature, and also those amending it, have been construed very liberally; they have been held to extend to all torts except those relating to the testator’s freehold, and those where the injury done is of a personal nature. And it has been held that an action will lie at the suit of an executor against a sheriffi for a false return in the lifetime of the testator; Williams v. Cary (2); and also for an escape; Berwick v. Andrews (3); and the reason is that by these wrongs the value of the testator’s personal estate was diminished. This has been established for centuries, and the rule of law has been made still clearer by the legislature, which by 3 and 4 Wm. 4, c. 42, § 2, has given a more extended remedy to and against executors for wrongs committed during the lifetime of their testators; for it seems to have been assumed at the time of passing that statute, that an executor was entitled to maintain an action for any wrong whereby the personal estate had been injured. It has been contended that special damage to the estate ought to be pleaded, or at least shewn, before an executor can sue: I do not think so; it will be sufficient if, from the nature of the injury, it must diminish the personal assets. The counsel for the defendant has relied also on the judgment of Lord Chelmsford in Peek v. Gurney (1); amongst the questions argued before the House of Lords it had been contended that the executors of a deceased director of a company were liable for the injury occasioned by his misrepresentations as to its solvency. Lord Chelmsford held that they were not liable; but the ground of his decision appears to have been that the director’s ‘ estate derived no benefit from the misrepresentation to which he was a party,’ and no doubt was thrown upon the authorities shewing that an executor may sue for a wrong committed to the personal estate of the testator during his lifetime; moreover, apart from 3 & 4 Wm. 4, c. 42, s. 2, a wide distinction exists between the liability of an executor to be sued and his right to sue. It was also suggested that the rights of an administrator stood upon a different footing from those of an executor; but this contention was not seriously persisted in. In 3 & 4 Wm. 4, c. 42, s. 2, executors and administrators are put upon the same ground with respect to the remedies created by that enactment; and this course would not have been adopted by the legislature, if it had not been clear that at the time of passing the statute the rights of executors and administrators were the same. I am satisfied that the administratrix was rightly made a party to the action. ’ ’

The distinction noted in the above case, as well as in Peek v. Gurney, L. R. 6 H. L. 377, 392, 393 (therein cited) as between the maintenance of suits by survival by executors or administrators, and the maintenance of suits by survival against executors and administrators, may well be said to rest upon the limited nature of the right of survival of actions against executors and administrators of any person deceased under 3 & 4 Wm. 4, c. 42, s. 2 (which see), where the right is limited to an action of trespass or trespass on the case for any wrong committed by a person deceased “ in his lifetime to another in respect of his Property, Real or Personal, so as such Injury shall have been committed within Six Calendar Months before such Person’s Death, and so as such Action sháll be brought within Six Calendar Months after such Executors or Administrators shall have taken upon themselves the Administration of the Estate and Effects of such Person; ”... Upon a careful examination of Peek v. Gurney, supra, it appears that it was an equity case, and so for that reason not within the provision of said statute; it further appears that the wrong, claimed to have been done by the deceased whose executor was made a party and who was held not liable, was done, if at all, more than a year prior to his decease; and that this suit was not brought till more than a year after his decease.

(4) There is no such distinction under our statute as above quoted. The rights of action by and against executors. and administrators under our statute are reciprocal; and actions which would survive in favor of an executor or administrator of the injured person survive against the executor or administrator of the wrongdoer. See Bellows v. Admr. of Allen, 22 Vt. 108, 110; Reynolds, Adm’r. v. Hennessy, 17 R. I. 169; Baker’s Adm’r. v. Crandall, 78 Mo. 584, 588, 589. For further illustration of the liberality of the English rule regarding survival of action for damages to personal estate, see Hatchard v. Mege et al., 18 Q. B. D. 771 (1887), approving Twycross v. Grant, supra. See, also, Oakey v. Dalton, 35 Ch. D. 700 (1887).

In Baker’s Adm’r. v. Crandall, 78 Mo. 584 (1883), an action for deceit against the promoters of a corporate scheme for false representations made by those holding themselves out as promoters and managers of the business as to the material facts of inducement and as to matters peculiarly within their knowledge, whereby the plaintiff’s intestate was induced to invest a large sum of money in worthless stock of the corporation and suffered damage thereby, it was held'that the action brought originally by Baker, survived after his death pending suit, to the administrator, both under the statute of Missouri, and under the common law as modified by the statutes of 4 Edw. 3, c. 7, and 31 Edw. 3, c. 11. •

On page 588 of 78 Mo. the court says: ££ It may be conceded that by the old common law prior to 4 Edward III, c. 7, and 31 Edward III, c. 11 — the general rule in cases of torts and in actions eco delicto, was that upon the death of either party, the right of action did not survive to or against the personal representative of either. But by these statutes, which were passed long before the emigration of our ancestors, and which, under the authorities above cited, constitute a part of the common law, this rule was altered in its relations to personal property and in favor of the personal répresentative of the party injured. The extent and effect of that alteration, as gathered from a careful examination of the numerous authorities, may, we think, without going into particulars, be briefly stated thus: Under the operation of these statutes, and the adjudications thereunder, it was held that the cause of action for any wrong to personal property, by which it was rendered less beneficial to the injured party, survived to his personal representative. It was also held that wrongs contemplated by. these statutes were not limited to injuries to specific articles of personal property, but extended to other wrongs by which his personal estate was injured or diminished in value,” etc. Again, on page 589 of 78 Mo. the court says: “ In this connection we may further add that in Higgins v. Breen, 9 Mo. 497, 499, this court, in treating of the scope and effect of the English statute of 4 Edward III, above cited, and of the wrongs and injuries embraced therein, and covered thereby, and of the changes made therein by our statute, used this language: ‘ The statute ’ (referring to the English statute above cited), £ it will be perceived, only gave actions to executors and not against them, for as against the person committing the injury the action died with him. Chitty, 59; I Sanders 217. Our statute has changed the English law in this respect, and has given an action both to and against executors, and by employing much broader language than the statute of Edward, seems' to have included, by express enactment, the injuries which were comprehended in that statute only by construction. The words of our statute are: ‘ for wrongs done to the property, rights or interest of another,’ etc., with an exception of actions for slander, libel, assault and battery, or false imprisonment, and to action on the case for injuries to the person.’ ”

Although the words of the Missouri statute are arranged very differently from ours, we think there is no substantial difference in the scope of the statutes so far as the question here under consideration is concerned. For a full statement of the facts in Baker’s Adm’r. v. Crandall, supra, see Hornblower v. Crandall, 7 Mo. App. 220; Watson v. Crandall, 7 Mo. App. 233.

In the case of Tichenor v. Hayes, Adm’x., 41 N. J. Law 193, it was held that under the New Jersey statute a cause of action in deceit ex delicto survives as against the administrator of the deceased wrongdoer. The allegations in the declaration were that the plaintiff was induced, by the deceitful and fraudulent misrepresentations of the intestate to invest his money in the purchase of certain mortgages; that the representations were false and known by the intestate to be so; and that the plaintiff, relying upon them, made the investments which proved worthless. The statute of New Jersey there under consideration was: ‘ ‘ Where any testator or intestate shall, in his or her lifetime, have taken or carried away, or converted to his or her use, the goods and chattels of any person or persons, or shall, in his or her lifetime, have committed any trespass to the person or' property, real or personal, of any person or persons, such person or persons, his or her executors or administrators, shall have and maintain the same action against the executors or administrators of such testator or intestate as he, she or they might have had or maintained against snch testate or intestate.” Bev. 1877, p. 396, sec. 5.

This opinion discusses at some length the liberal construction given to the statutes of Edward 3, heretofore referred to, and holds that the statute last above quoted (p. 199) of 41 N. J. L. “ was plainly intended to take the place, in an improved and amplified form of the statute of Edward III, c. 7, de bonis asportatis in vita testator is, and its purpose was to remove the same absurdities that had crept into the law by a technical adherence to the words rather than to the spirit of the old maxim, actio personalis moritur cum persona. The substitute, and its antetype, are obviously in pari materia. The statute of Edward applied, according to its letter, only to goods carried away in the lifetime of the testator, but by a most liberal construction it was extended to remedy many other wrongs, some of which are referred to in the opinion in Ten Eyck v. Bunk, and it would not be consistent with customary rules, I think, to refuse to exercise a like liberality in the interpretation of this substituted act.”

Now while the statute of New Jersey above referred to differs much in form from our statute, and in some respects is not so broad, yet in its general aspect and viewed in the light of the evil sought to be remedied, we find that such difference as there may be between the two statutes is in the direction of greater breadth and liberality in the scope of our statute. All of the cases above cited from England and from the States of this country (except the Massachusetts cases and those following them) incline to liberal construction of such statutes as remedial statutes; and we are of the opinion that in the liberal construction which we have given to our statute we are amply supported by authority.

In our opinion the cause of action in the case at bar survived the death of defendant’s testatrix; the Superior Court erred in sustaining the demurrer to both counts of the declaration; the plaintiff’s exception to the decision of the Superior Court in sustaining the demurrer is sustained; and the ease is remitted to the Superior Court, with direction to overrule the demurrer, and for further proceedings.