Brown v. Butler

71 Conn. 576 | Conn. | 1899

Baldwin, J.

Under General Statutes, § 1094, proof of declarations by Mr. Hanscom as to his purpose in procuring the execution of the bill of sale in favor of the defendant was admissible; but such proof was not supplied by evidence of the declarations of another person, since deceased, as to what the intestate said to him. The dead cannot thus be made to speak through the dead.

There was also error in receiving the declarations of Holmes, in 1897, to the effect that he made the bill of sale in 1893, at Hanscom’s request and in exchange for a conveyance to himself of a like interest in the same vessel from Moulton which Hanscom promised him. Had Holmes brought an action to establish a resulting trust in his favor as to the subject of his bill of sale, such declarations might have been properly shown, as admissions against his interest; but in the present suit, to which he was not a party, they could not be brought in, to affect the issues between the administrator and the defendant.

All the bills of sale which passed between Moulton and Hanscom were properly admitted. They tended to show the relations between them, and were relevant to the claim that Moulton held vessel interests in his name which really belonged to Hanscom.

Proof that the defendant held another share in the schooner R R. Ranscom, and collected dividends on that, but not on the share in controversy, was pertinent to show that she did not act as if she were the beneficial owner of the latter. The same considerations justified the admission of the written claim which she presented against his estate, and of the books of check stubs. Her claim was as significant in showing what she did not demand as in showing what she did. Each stub was a memorandum of the deceased as to the payment of money, and it was not denied that some of them contained entries of checks drawn in her favor. These were certainly admissible as tending to prove that such checks were issued, and proof of that was a step towards showing that they were issued for the dividends on her original share in the R. R. Ramoom. It was unnecessary to limit the offer to the particular stubs showing entries of dividend payments. Where, as in this instance, a number of stubs are bound up in one book, it is more convenient to put the whole of them in as one exhibit, and, if there are several such books, it is within the discretion of the court to receive them all, in the same way, as a single piece of evidence, and allow counsel to point out whatever may be deemed pertinent to the cause.

The questions put to the witness who had been the attorney of the intestate, were properly excluded, on the plaintiff’s objection. The plaintiff represented the client, and had the same right to insist that privileged communications should not be made the subject of inquiry. Such communications are not alone those which may be made respecting a subject of contemplated or pending litigation. It is often as necessary to secure professional advice from an attorney in regard to drafting papers, as in respect to the conduct of proceedings in court. If, for instance, in this case, the intestate had stated to Mr. Spier that he desired to make a gift to the defendant, without parting with the immediate possession and enjoyment of the property, and asked if this object could be accomplished through a bill of sale from a third party, given without the defendant’s knowledge, the advice asked would have been of a confidential nature. Todd v. Munson, 53 Conn. 579, 588; Foster v. Hall, 12 Pick. 89. The witness had been allowed to testify that the bill of sale was in his handwriting, and that he had drawn it pursuant to instructions from the intestate. Tins was as far as the defendant had the right to go.

On the main question in the case—the legal effect of the bill of sale to the defendant—we express no opinion, as the facts found may rest in part on testimony which should have been excluded; nor do we notice some minor rulings upon points of evidence, not likely to recur upon a new trial.

There is error and a new trial is granted.

In this opinion the other judges concurred.