the natural and proximate consequence of the * The court then proceeds to decide that the action is not a penal action, and holds that it survives the death of the plaintiff. 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. The question before us in this case is whether this action is an action of "trespass * to peron the case for damages sonal 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, viz.: "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 an 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. Supreme Court of Vermont, holding that this action survived the death of the defendant and could be prosecuted against his admin Reynolds v. Hennessy, 17 R. I. 169, 20 Atl. 307, 23 Atl. 639, 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' administra-istrator, used the following language: tor, and also survived as against the administrators of Hennessy. In the suit of Reynolds v. Hennessy, the vendor's lien of which the 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 The "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 and 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 the word 'real,' and the term 'personal estate,' word 'personal,' in this clause, is contrasted with 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 chatteis, but rights and credits also. Such is the ordinary legal signification of the term. In that sense the words 'personal estate' are sonal property. But we are of 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. generally, if not universally, used throughout the f is a damage done to him in respect to his perRevised 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; nuncupative 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 done 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; and the owner of such debt would suffer damage thereby, for which 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 (Mass. 1837) 19 Pick. 47, 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, Me., 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 was resisted by an amicus curiæ on the ground that the action did not survive under the statute of Massachusetts (Rev. 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 Stat. 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, "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." This case seems to have been followed or approved in several other Massachusetts cases. See Cutting v. Tower, 14 Gray (Mass.) 183; Leggate v. Moulton, 115 Mass. 552; Houghton v. Butler, 166 Mass. 547, 44 N. E. 624; Jenks v. Hoag, 179 Mass. 583, 61 N. E. 221-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, 18 N. E. 397, 1 L. R. A. 429, 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. 472, 18 N. E. 397, 1 L. R. A. 429): "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 Pub. St. c. 165, § 1, that actions for 'damage done to real or personal estate' shall survive, does not apply erally, but requires that damage to some spe to mere impoverishing of a man's estate gencific property should be alleged and proved. Read v. Hatch, 19 Pick. [Mass.] 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-and by the same reasoning under our statute an action for injury to the personwill survive as well when the wrong is brought to pass by fraud as when it is done by force. See Hatchard v. Mège, 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," etc., 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 It should be noted at this point that the We find support for the plaintiff's contenoriginal words of our original statute (Pub. tion, that this action survives, in certain casLaws 1844, p. 132, § 25), above quoted, "ac-es both in England and in this country. tions of trespass and trespass on the case In Twycross v. Grant, 4 C. P. D. 40 (1878), for damages done to real or personal estate," the English Court of Appeal held that an acare identical in effect with the words of the tion in all respects similar in its legal aspect Massachusetts statute, "damage done to real to the case at bar survived to the adminisor personal estate"; that in Rev. Stat. of tratrix of the plaintiff. The action was 1857, above quoted, the word "done" is left brought by the plaintiff James Twycross out, and the language is broadened to in- against Grant and others to recover back clude "causes of action and actions of tres- £700, the price of shares in a joint stock compass and trespass on the case for damages pany, on the ground that he had been into the person, or to real and personal estate." duced to buy the shares in question by the These changes are material and substantial, fraudulent suppression by the defendants, in that they include "damages to the per- the promoters of the company, in the prospecson" not previously mentioned; they leave tus published by them, of certain contracts out the word "done," which appears in Read which ought to have been disclosed therein v. Hatch, supra, to have been regarded as an pursuant to section 38 of the Companies Act, important and controlling word confining the 1867 (30 & 31 Vict. c. 131). After the case had application of the statute "to damage done been tried to a jury, and a verdict for plainto some specific personal estate"; they also tiff had been had, and judgment for the plainadd the words "causes of action," thereby tiff had been sustained by the Court of Appeal, broadening the statute to include expressly, and pending an appeal to the House of Lords not only actions already commenced before the plaintiff died, his administratrix duly the death of a party, but causes of action appointed and qualified was ordered to "be which previously existed, where action was made a party to the action, and that she be at not commenced or defended in the lifetime liberty to carry on and prosecute the same of the party deceased, but after his death by against the defendants." This order was or against an executor or administrator. We contested before the Common Pleas Division think it is to be inferred from these changes and was sustained in favor of the administraof language that our Legislature thereby in-trix, and defendants appealed. In the Court tended to broaden the scope of the statute relating to survival of actions as we have heretofore set forth. 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 Wm. 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 The defendant also cites Jones v. Estate of Ellis, 68 Vt. 544, 35 Atl. 488, 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 Read v. Hatch. The opinion is short, and no cases are cited, although it would seem that the court follow-by the maxim, 'Actio personalis moritur cum pered the doctrine of Read v. Hatch and other Massachusetts cases which were cited by counsel; the court says (68 Vt. 547, 35 Atl. 489): "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, 82 N. W. 536, 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, 46 N. W. 778, 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. sona.' This rule was greatly altered at an early contended that the executors of a deceased di- English rule regarding survival of action rector of a company were liable for the injury for damages to personal estate, see Hatchard occasioned by his misrepresentations as to its v. Mège et al., 18 Q. B. D. 771 (1887), approvsolvency. Lord Chelmsford held that they were not liable; but the ground of his decision ap- ing Twycross v. Grant, supra. See, also, pears to have been that the director's 'estate Oakey v. Dalton, 35 Ch. D. 700 (1887). derived no benefit from the misrepresentation to which he was a party,' and no doubt was thrown 47 Am. Rep. 126 (1883), an action for deceit upon the authorities shewing that an executor In Baker's Adm'r v. Crandall, 78 Mo. 584, may sue for a wrong committed to the personal against the promoters of a corporate scheme estate of the testator during his lifetime; more for false representations made by those holdover, apart from 3 & 4 Wm. 4, c. 42, § 2, a wide ing themselves out as promoters and manadistinction exists between the liability of an executor to be sued and his right to sue. It gers of the business as to the material facts was also suggested that the rights of an admin- of inducement and as to matters peculiarly istrator stood upon a different footing from those within their knowledge, whereby the plainof an executor; but this contention was not seriously persisted in. In 3 & 4 Wm. 4, c. 42, tiff's intestate was induced to invest a large § 2, executors and administrators are put upon sum of money in worthless stock of the corthe same ground with respect to the remedies poration and suffered damage thereby, it was created by that enactment; and this course held that the action brought originally by would not have been adopted by the Legislature, if it had not been clear that at the time of Baker survived after his death pending suit, passing the statute the rights of executors and to the administrator, both under the statute administrators were the same. I am satisfied of Missouri; and under the common law as that the administratrix was rightly made a modified by the statutes of 4 Edw. 3, c. 7, party to the action." and 31 Edw. 3, c. 11. On page 588 of 78 Mo. 47 Am. Rep. 126, the court says: 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, § 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 shall 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. * "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 ex delicto was that, upon the death of either party, the right of action did not survive to or against the personal representative passed long before the emigration of our anof either. But by these statutes which were cestors, 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 representative 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., 47 Am. Rep. 126, the court says: in Higgins v. Breen, 9 Mo. 497, this court, in "In this connection we may further add that 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 There is no such distinction under our died with him. Chitty, 59; 1 Sanders, 217. the person committing the injury the action statute as above quoted. The rights of ac- Our statute has changed the English law in this tion by and against executors and adminis- respect, and has given an action both to and trators under our statute are reciprocal, and against executors, and, by employing much broader language than the statute of Edward, actions which would survive in favor of an seems to have included, by express enactment, executor or administrator of the injured per- the injuries which were comprehended in that son survive against the executor or adminis- statute only by construction. The words of our statute are, "for wrongs done to the proptrator of the wrongdoer. See Bellows v. erty, rights or interest of another," etc., with Adm'r of Allen, 22 Vt. 108, 110; Reynolds, an exception of actions for slander, libel, asAdm'r, v. Hennessy, 17 R. I. 169, 20 Atl.sault and battery, or false imprisonment, and 307, 23 Atl. 639; Baker's Adm'r v. Crandall, to action on the case for injuries to the person.' 78 Mo. 584, 588, 589, 47 Am. Rep. 126. For Although the words of the Missouri statute we think there is no substantial difference our statute we are amply supported by auin the scope of the statutes so far as the thority. 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, 32 Am. Rep. 186, 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 or chattels of any person or persons, or shall, in his on 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 such testate or intestate." Revision 1877, p. 396, § 5. This opinion discusses at some length the liberal construction given to the statutes of Edw. 3, heretofore referred to, and holds that: 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 case is remitted to the superior court, with direction to overrule the demurrer, and for further proceedings. VINCENT, J. (dissenting). I am unable to agree with the majority of the court. The point raised by the demurrer is whether or not, under our statute, the action survives the death of the defendant's testatrix, Mrs. Dewing. By section 7, c. 283, General Laws 1909, it is provided that: "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: * * 2 Third. Causes of action and actions of trespass and trespass on the case for damages to the person or to real and personal estate." The adjudicated cases are practically unanimous in holding that under statutes of this character the plaintiff must show, in order to recover, that he has sustained the loss of some specific property. The authorities are not, however, in accord as to what constitutes specific property. Some cases favor a strict or narrow construction of that term, holding that it only comprehends some indiThe statute last above quoted (41 N. J. Law, vidualized sum of money, right, or piece of 199, 32 Am. Rep. 186) "was plainly intended property associated with the transaction from to take the place, in ar. improved and amplified form, of the statute of Edward III, c. 7, de its inception or at some later period prior to bonis asportatis in vita testatoris, and its pur- its culmination, while other cases hold that pose was to remove the same absurdities that the extent to which the plaintiff's estate may had crept into the law by a technical adherence be found eventually to have been depleted to the words rather than to the spirit of the old maxim, 'Actio personalis moritur cum per- becomes a sum sufficiently specific to effect sona.' This substitute, and its antetype, are the survival of the right of action. 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. Runk, 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." The Rhode Island cases bearing upon this statute have not fully reached a point determinative of the question which is now before the court. In Aldrich v. Howard, 8 R. I. 125, 86 Am. Dec. 615, suit was brought to recover damages sustained by the plaintiff to his hotel property through the erection of a stable in such close proximity thereto as to become a nuisance. It was urged in that case that there was no injury to the real estate, and therefore the action did not survive the death of the defendant. The court held that there was an injury to the real estate and that the action survived. In Reynolds v. Hennessy, 17 R. I. 169, 20 Atl. 307, 23 Atl. 639, it was alleged that the defendant as mortgagee sold the mortgaged estate under the power of sale 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 in the mortgage for a sum in excess of the 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 mortgage debt, conveying the estate to the purchaser for the amount of the mortgage debt, fraudulently concealing from the owner of the equity of redemption the fact of the excess, and never accounting for the same, |