
    
      The final accounting in the Estate of A. B.
    Responsibility of an attorney" for mistaken and erroneous advice given • to his client.- ■ An attorney held to respond to his client for culpable negligence" in.not - watching the,changes of the public statute law ■ made by the Legislature. • .
   The Surrogate.

' The ■ claim presented' against this estate, and which' I am to' try on this'final accounting, ‘ involves the delicate question of the responsibility of' the testator, who in his lifetime was an eminent attorney" arid counselor-at-law, for damages claimed from his" éstate by "a client, by reason of ferforieous advice giyen by the "testator upon a professional question. : . " '

An act" “ concerning the rights and liabilities' of husband ■ and wife'”' ’was pássed by the Legislature, March "20,1860. (See Session laws of 1860, p. 157.) The eleventh section of that "act provided (it has. since been repealed) that, ; “At the decease of the husband or wife, intestate, lerivirig minor child or children,'tbe survivor shall hold, possess and enjoy all tile real estate "of which .the husband or wife ' died' seizéd, arid all' the rents, issues and profits thereof, during the minority of' the youngest child, "and" orie-third théréof during his'dr"her" natural life.”

While this law was in existence upon our" statute botik, the husband of the present claimant died intestate, leaving a large and valuable real and personal estate. She took letters of administration "upon his goods. .The decedent left, besides his widow, two sons, one of whom had just come óf age, arid the . other was an infant, twelve years old. ' It is clear that the real estate of the husband became subject to this, statute, and" that the" widow, the present claimant, was entitled to “bold, possess and enjoy, all" the real estate of which. her husband died seized, arid all the .rents, issues and profits , thereof, during the MiriOrity” of this infant". It is" riot necessary^ perhaps, to "construe the following words of this section., and undertake to discover from them what her estate will he when the minor reaches his majority; he is still under age.

Some months after the death of her husband, "the son 'who was of age, demanded of tlie present claimant,' his step-mother, his share of his. father’s real estate,' and, through his counsel, urged a partition suit. The claimant applied to the present testator, her attorney and counsel, for professional advice. The testator gave her advice without, as it seems, consulting the statute book of the preceding'year.' He of course advised her thát, as widow, she had a dower interest only in the realty' of her husband j a life estate in one-third of the rent's. A ctimpro-mise was'effected with the son, and the probable expense of a partition induced a pecuniary arrangement. Most of the: personal’ property -was set' apart to him, ánd he released" his claim to the real estate to his'- step-mother ■ and 1 half-brother. " The' testator drew thé papers,' and superintended their execution and delivery.

The ruistaken advice Of her attorney and counsel having produced'd, 'considerable"loss, to- the- claimant, she how claims'thát'his estate is responsible to her for" the amount.

Attorneys, counselors and conveyancers, -like -agents in any'other professional employment,' and like'"all" mechanics, artists and-other employees, are bound'to possess ' some' skill'and' knowledge of their business or profession. And "this skill or knowledge must be reasonable in amount, and such as - the' employer is entitled, in the nature of’"'things,J to expect from them.' And ■ there "can be no: dohbt that théy are responsible for every- unskillful or mistaken act they may commit, or for every erroneous opinion they may utter to those who consult and confide in thém. (Godefroy v. Dalton, 6 Bing., 460; Bailkie v. Candless, 3 Camp., 20.)

• They aré bound to have arid exercise common diligence - in- the. performance of their professional" -duties. The ' -opposite of this is culpable négligenCe'; ánd for any damage to then- clients from, such negligence they are liable.. (Kipping v. Quin, 12 Wendell, 520.) In the present case, it is impossible to, impute to the testator, the legal ,adviser, a; want of knowledge, pr pf skill in his profession, in the ordinary acceptation of such a phrase. All who knew him could testify to-his long and honorable career of laborious duty, continued through forty years of successful practice at the .bar, ‘ The error arose from .want of diligent .watchfulness in. respect. to legislative changes., He d.id not remember that, it might be necessary to. look at the statutes of the year before. Perhaps he had:forgotten the saying, that “no man’s life, liberty or property áre safe while the legislature is in session.’’ ... I find some cases in the books bearing on and defining -this responsibility. , In Parker v. Rolls, 14 Common Bench Reps., 5 J. Scott, 691, an attorney was charged -with, .-damages fpr .negligence. ' He, had prepared and superintended, the ■ execution of an agreement which was void at Commojivlaw for. want of a seal. And there .are • several cases-in which, an attorney, acting under a. plain .and intelligible statute, has been;held liable to his client fpr the.damages resulting from the adoption- of a mistaken Course pf practice. • :

.¡■It. is;not: claimed that a person, who undertakes to -perform professional business should be acquainted with the whole circle; of .jurisprudence, and able to apply all its multitudinous rules, principles and distinctions with absolute accuracy. He is, however, bound to understand . the .leading, and fundamental principles of the Common Law;, and he cannot be. excused for ignorance of the public statutes of the State, lord Brougham, in delivering a judgment.upon the question of professional responsibility, illustrated his ■ conclusions by putting what he calls “a very gross case; as, for .instance^ a man advising his . client that his eldest son was not his heir-at-law,” He adds, “or any other thing, which, upon.the. face of it, , shows.gross ignorance in the A B C of the profession, and the most gross negligence in the performance of his professional duty.” (Purves v. Lundell, 12 Clark & Finelly, 99.) The question of who is. entitled to- the lands of a .deceased, intestate, who has left'a wife and two sons, one a minor, is surely within the very A B C of the law, at any time. Any one acting as a professional- conveyancer, and advising upon the rights of takers of land under an intestacy, must certainly be liable for negligence, if he should overlook a legislative enactment, changing the Common Law upon such a point—if not on any—and consequently give advice resulting in loss to his client.

I must hold, the estate of the testator responsible, and refer the claim to an auditor, to pass upon as to amount.  