137 N.Y.S. 43 | N.Y. Sup. Ct. | 1911
Juliet Wallace died September 29, 1909, in the borough of Brooklyn, leaving her last will and testament, which was dated! and had been executed on the 2d day of May, 1902. Such will was duly
The said will of Juliet Wallace gave a legacy of $25,000 to each of the plaintiffs, and, after giving certain other legacies, including one to the defendant Howard Gurdon Wallace of $75,000, gave the great bulk of her estate, or at least a half thereof, amounting to approximately $400,000, in a residuary legacy and! devise to the said Howard. This action has been brought in equity to secure a decree of this court to the effect that the said Howard, as such executor, holds the property left by the said Juliet in trust for the purpose of carrying out a contract, which the complaint alleges the said Juliet and the said James P., on or about May 18, 1894, entered into, whereby they mutually agreed to make and then made their mutual wills, by which each gave to the other his or her entire estate, if the other survived, and, if not, then one half thereof to the blood relatives of the said Juliet, and the other half to the blood relatives of the said James P., each half to be distributed in certain stated proportions, and by which they mutually agreed each to maintain his or her said will; which was actually executed on that day, until his or her death, and, further, that the estate of the said Juliet must be distributed according to the terms of her said will made May 18, 1894. It appears that, by the terms of the said last-mentioned alleged will, each of the plaintiffs would receive, ■out of the said estate, about $75,000; whereas, by the terms of the will of said Juliet of May 2, 1902, each plaintiff will receive only the sum of $25,000.
During the trial certain questions of evidence arose, as to which my mind was not clear; and, by consent of counsel, it was stipulated that those questions should be discussed in their briefs to be submitted, and that the court, in determining the case, should decide, first, of course, those questions of evidence, striking out so much of the evidence received, over objection, as the court might then finally determine to be inadmissible. It is now, therefore, my duty first to determine such reserved questions of evidence. Such evidence, so received, was of three distinct classes, viz.: (1) Declarations of James P. Wallace, tending to show the existence of such contract; (2) declarations of Juliet Wallace of similar character; and (3) testimony of two clerks and a stenographer of the attorneys of Juliet, tending to show that she executed a will on May 18, 1894, at the same time and place that James P. executed his will, and that a certain purported copy, produced from the files of such attorneys, is a copy of her such will. After examining the briefs submitted by the learned counsel upon this
The witness Devlin testified that recently, at least since the death of Juliet, September 29, 1909, he had examined the files of papers in the office of Wallace, Butler & Brown, and there found among them what purported to be a typewritten copy of a will made by Juliet Wallace, May 18, 1894, and that he had produced such copy before the surrogate of Kings county at the probate of her 1902 will, and later had seen the same copy, at a trial in this court before Mr. Justice Blanchard, in New York county, of another similar action. It was admitted here that the said Exhibit B is a correct copy of such copy so produced before said justice. The witness Baird testified that he was the attorney of the plaintiffs in such other action, which was brought by certain blood relatives of James P. Wallace, and that, as such, he received from said Wallace, Butler & Brown the said purported copy of a will of Juliet Wallace, made May 18, 1894, and that, after the trial of that action, he had mislaid such copy and could not now find it.
Before Devlin testified, and identified the copy, and stated where it
“I will have to ask this witness to step aside and call a witness for the purpose of refreshing Mr. Flynn’s recollection.”
After Devlin had testified as above, establishing the source of the typewritten copy, Flynn was recalled and handed! Exhibit D, which was admitted to be a correct copy of the copy so established, which had been produced before Mr. Justice Blanchard, and testified, in effect, that his recollection was by such copy so refreshed that he could say and did say that he did act as a subscribing witness upon that occasion to the execution of a will by Juliet, of which that Exhibit D was a copy (such exhibit being exactly like Exhibit B attached to the complaint), such copy purporting to show his name as that of a subscribing witness.
Leddy, the stenographer, testified also that, as a stenographer of Butler, Stillman & Hubbard, and especially of Mr. Notman, he made the said typewritten copy from the original, and that he then recognized the handwriting of the subscribing witnesses, who were clerks in the office of those attorneys, and that he usually did such work at the personal direction of Mr. Notman. After all the above testimony, Flynn was recalled for the plaintiffs, and, with Exhibit D before him, testified positively to the usual facts, to which a subscribing witness testifies, as to the execution of the alleged will of Juliet Wallace made May 18, 1894.
From the above, it is manifest that the entire testimony of Flynn rests upon the authenticity of such typewritten copy, or at least upon the proven source of that copy, and that such source, was proven by the testimony of Devlin, the lawyer or clerk, and Leddy, the stenographer, of the attorneys of Juliet at that time. It appears that these witnesses, Leddy, Flynn, and Devlin, gave like testimony before Mr.Justice Blanchard at the trial of the other action, without objection on the part of the defendant Howard G. Wallace, who was the leading defendant in that action as well as he is in this.
The difficulty in applying these decisions to the case here is that the ‘defendant Howard, as executor, is not by section 836 authorized to waive the privilege of his testatrix, Juliet Wallace, under section 835, as to these witnesses. In those decisions the party who suffered the physician to be examined at the prior trial was the patient himself. He was competent to waive. Here the client, Juliet Wallace, is dead; and I cannot perceive that section 836 authorizes any one to waive such prohibition. As to a physician, that section authorizes the personal representatives of the deceased patient to waive; but it confers no such authority as to an attorney, and I cannot perceive how, by failure to object, a person not authorized to waive can be held to have waived—in other words, how such a person, by the acquiescence of silence, can be held! to have done what he was powerless to do by express action or direction. Therefore I hold and decide that the objections taken by the defendants to the third class of reserved evidence are good, and must be sustained, and such evidence stricken out.
The same reasoning requires the exclusion of the letter of Juliet Wallace to her attorney, William Allen Butler, dated January 30, 1897, and also the memorandum signed by her and marked as Plaintiff’s Exhibit No. 7. Indeed, as to those papers there is no proof or admission that they were received in evidence at the trial before Mr. Justice Blanchard.
If it were affirmatively established that the directions for drawing the two wills, alleged to have been executed on May 18, 1894, and the opportunity to .make the typewritten copy produced, were given by the joint action of Mr. and Mrs. Wallace, it might be held that their incidental communications with their common attorney would not be within the protection of section 835, under the doctrine of Hurlburt
The attempt of the plaintiffs here, by such testimony, is to establish that James P. Wallace made and maintained his will, giving all his estate to his wife, upon her making a will giving her estate to him if he survived her, and, if not, then one half thereof to his blood relatives, and the other half to her blood relatives in certain proportions, and upon her engagement, in consideration of his making and maintaining his such will, to maintain hers unaltered to the end; she having survived him and received his estate, and not having maintained her such will.
Of late years there have been, in the Court of Appeals, a series of cases which have very clearly and positively declared the rules which must govern in determining such a claim, namely,, a claim that a decedent made a given contract to dispose of his or her estate at death in a different manner than he or she attempted to do. Taylor v. Higgs, 202 N. Y. 65, 95 N. E. 30; Miller v. Hill, 137 App. Div. 378, 121 N. Y. Supp. 741; Id., 203 N. Y. 646, 97 N. E. 1109; Tousey v. Hastings, 194 N. Y. 79, 86 N. E. 831; Holt v. Tuite, 188 N. Y. 17, 80 N. E. 364; Roberge v. Bonner, 185 N. Y. 265, 77 N. E. 1023; Rosseau v. Rouss, 180 N. Y. 116, 72 N. E. 916; Ide v. Brown, 178 N. Y. 26, 70 N. E. 101; Hamlin v. Stevens, 177 N. Y. 39, 69 N. E. 118; Edson v. Parsons, 155 N. Y. 555, 50 N. E. 265.
These rigid rules are very clearly and emphatically asserted in the several recent cases from which the substance of the requirements have just above been excerpted. Judged by these tests, it seems to me that the evidence here falls far short of establishing the plaintiffs’ case. I have reached this conclusion for the following reasons:
Eirst. No written evidence of the alleged contract, or' written acknowledgment by the testatrix of its existence, is produced; and it is evident that a rigid search among her effects has disclosed none such. Considering the business character and experience of James P. Wallace, and the constant aid whicji the parties had from the late and eminent lawyer, Mr. Notman, the absence of such written proof seems of especial force. ■ It appears quite improbable that such people would have left such an engagement of great importance without written evidence thereof. Indeed, it appears quite extraordinary that, if such end were desired by James P., he would not have secured it by the apt and usual way of leaving a life estate to his wife, which would have been more than ample for her support, with remainder over according to his alleged wishes.
Some adverse comment is made by plaintiffs’ counsel upon the fact that the defendant Howard, shortly after his aunt’s death, destroyed certain of her papers; and the intimation is made that he may then have destroyed such written contract or evidence. There does not appear to me to be any likelihood that any such writing was then in her safe. If any such had been in her possession, it was likely destroyed when the will of 1902 was made, as all parties concerned must in that transaction have then realized that it constituted a breach of that con-, tract.
Second. Taking the testimony of Dr. Hoyt and Miss Whitcomb in the light most favorable to the plaintiffs, it is without proof of a copy of the will actually made by Juliet on or about May 18, 1894, if she made any such; and therefore such testimony is too indefinite and uncertain as to the terms of the contract to serve the case of these plaintiffs. At the most, such testimony amounts to evidence that Mr. and Mrs. Wallace had made their mutual wills and were to maintain them so as in the end to divide the entire property of both equally between their two families, viz., one half thereof to the blood relatives of James, and the other half thereof to those of Juliet. This, however, would not make the plaintiffs’ case, which requires that the contract called upon Juliet to distribute the one-half coming to her blood
Miss Whitcomb, too, after the trial of the other action, received from the plaintiffs therein, for whom she had testified at such trial, a gratuity of $1,000, although she also here insists that she had no expectation of receiving any compensation or gratuity whatever for or in consideration of her having so testified. It is quite natural to conclude that, whatever may have then been true, she now may indulge some expectation of a similar result in this case, if the plaintiffs here succeed. Indeed, she admits that, some few months before the present trial, she informed the attorney of these plaintiffs that she had received such gratuity from the plaintiffs in the other action.
Moreover, each of those two witnesses evidently has some sense of grievance. Dr. Hoyt expected that James P. Wallace would leave him a legacy; and to his disappointment, doubtless, after the death of James, Juliet ceased sending him the allowance of $25 a month which, for many years prior to his death, James had made to him. Miss Whitcomb had expected that Juliet would leave her a legacy, and was disappointed that she did not do so in the will of 1902; and yet it is quite difficult to understand with what sense of equity she indulged that expectation, if, as she would now have the court believe, Juliet Wallace was bound to dispose of the entire estate, as her husband had directed, by the alternative disposition in his will.
Fourth. Each of those two witnesses testified to mere verbal statements of the testatrix, made long ago, neither claiming to have been present at the actual making of any agreement between Mr. and Mrs. Wallace, or the making of the alleged mutual wills; Dr. Hoyt to
Fifth. While, as explained by him, the interest of Dr. Hoyt in the alleged conversation is manifest, and therefore the same is not to be considered unnatural as to him, yet it seems extraordinary that Mr. and Mrs. Wallace should have had any such talk with Miss Whitcomb, and that she should have had any particular interest therein.
Seventh. As to Miss Whitcomb, in the end she admitted that she could not be certain of the exact language used by Mrs. Wallace, but that she, the witness, merely gave her understanding of it. In a case like this, where a slight verbal change may be most significant, testimony of that character is of little force, as also was held in the Tousey Case, 127 App. Div. 97, 111 N. Y. Supp. 344; 194 N. Y. 81, 86 N. E. 831. Under such circumstances, it is difficult for the trial court to be satisfied in regard to such testimony as to “how much is inference and how much recollection.”
Ninth. Dr. Hoyt’s letter to Mary Wallace, written December 7, 1909, does not to my mind indicate that he then believed that Mr. and Mrs. Wallace had declared anything to him, other than their then .present intention of dividing the estate equally between the two families. He therein urges “Christian arbitration and settlement out of court” upon that basis, not that he understood that there was any binding agreement between Mr. and Mrs. Wallace to that effect.
Apart from the considerations above stated affecting the testimony of those two witnesses, some other matters appear worthy of- note. The late Mr. John Notman was an eminent lawyer and a man of high character. He was the personal counsel of both Mr. and Mrs. Wallace. He drew his will and also hers of May 2, 1902, and, if she made one of May 18, 1894, when her husband made his, he doubtless drew that also, and he attended to the execution of all the wills. If there was, between those parties, any agreement such as these plaintiffs here claim, he must have known of it. It is difficult to believe that, in such case, he would have been a party to the making of the will of 1902, which he must have known was a violation of such agreement and a breach of the trust thereby created. i
Moreover, all concede that Mrs. Wallace was a woman of the highest character, who greatly respected her husband, and was in the full possession of her faculties when she made the will of 1902. It is again difficult to believe that such a woman would have perpetrated such a fraud as, in the view here presented by these plaintiffs, her will of 1902 was. It is true that the alleged contract accords with the natural equity that the estate should ultimately be divided equally between the two families, as all the descendants of the parties (Mr. and Mrs. Wallace) had died, and they were so advanced in years that, of course, they were without hope of further issue; but it is not clear that any natural equity would have been promoted by depriving Mrs. Wallace of her natural right to distribute her half of such estate among her blood relatives, according to her judgment of their respective deserts.
It seems to me, moreover, that the case here before me is far different from that which was before Mr. Justice Blanchard at the trial of the other action. He had before him the testimony of the three witnesses, Devlin, Plynn, and Reddy, and the alleged typewritten copy of the alleged will of May 18, 1894, all of which have been now excluded from this case. He did not have before him at all the facts, present here, that the two leading witnesses of the plaintiffs had re
“No evidence * * * indicating bias [on their part] was produced.”
And again, as to Dr. Hoyt:
“Yet he had put in peril an assured sum [viz., the legacy] in exchange for an indefinite promise.”
In the case here at bar the promise has ceased to be indefinite, and lias become so precise as to be accompanied by the deposit with a stakeholder of the actual sum of money represented by the imperiled legacy.
Moreover, the plaintiffs in that action were blood relatives of James P. Wallace,¡and therefore may be said to have had an equity superior to the plaintiffs here, who are blood relatives, not of him, but of Mrs. Wallace. Whether that learned jurist would have decided the same, if the evidence before him had been as it is now before this court here, can, at the most, be only a matter of speculation, into which it is not necessary to enter. I am clearly convinced that the evidence here before the court is not sufficient to establish the plaintiffs’ case. Therefore the decision must be in favor of the defendants, but without costs.
The compromise made of the other action served, doubtless, as an invitation to the bringing of this action, and hence I think the plaintiffs here should not be charged with an extra allowance or the costs.