Baumann v. Steingester

• Decision Date: 05 January 1915
• Citation: 107 N.E. 578,213 N.Y. 328
• Parties: BAUMANN v. STEINGESTER et al.
• Court: New York Court of Appeals Court of Appeals

213 N.Y. 328

107 N.E. 578

BAUMANN

v.STEINGESTER et al.

Court of Appeals of New York.

Jan. 5, 1915.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Lena Baumann against Henry C. Steingester, Magdalena Fuhge, and others, to construe a will. A judgment in favor of the plaintiff was affirmed by the Appellate Division (159 App. Div. 923,144 N. Y. Supp. 1105), and the defendant Magdalena Fuhge appeals. Reversed, and new trial granted.

John M. ONeill, of Brooklyn, for appellant.

Anthony Darmstadt, of Long Island City, for respondent.

SEABURY, J.

This action was commenced to obtain a construction of the last will of Maria Schadrack, deceased, and to have it adjudged that the plaintiff is the legatee described in subdivision 1 of paragraph ‘third’ of said will, and that she is one of the three residuary legatees referred to in paragraph ‘sixth’ of said will . The appellant, Magdalena Fuhge, answered, and asked to have it adjudged that she is the legatee described in the two paragraphs of the will referred to above.

[1] The question at issue upon the trial related to the identity of the legatee referred to as ‘Lena Baumann’ in the following paragraphs of the will. Subdivision 1 of paragraph third provides that the testatrix gives ‘the sum of $1,000 to my niece Lena Baumann of Richmond Hill in the county and borough of Queens,’ paragraph sixth provides that the testatrix gives ‘all the rest and residue of my estate to my three nieces, Helene Bang, Katherine Hainer, and Lena Baumann, to be divided among them share and share alike.’ The plaintiff is a grandniece of the testatrix, and at the time the will was made resided at Richmond Hill. The appellant is a niece of the testatrix, and her maiden name was Magdalena Baumann. There was evidence received upon the trial to show that the testatrix was accustomed to speak of her as ‘Lena Baumann,’ and that while she resided at the time the will was made at a place about one mile from Richmond Hill, the testatrixwas also accustomed to refer to this place as ‘Richmond Hill.’ It thus appears that the language used in these two paragraphs of the will does not accurately designate either the plaintiff or the appellant. It does not accurately designate the plaintiff because the reference in the will is to a niece of the testatrix, and the plaintiff is a grandniece. It does not accurately designate the appellant because while her maiden name was Magdalena Baumann her name at the time the will was made was Magdalena Fuhge, and she did not reside at Richmond Hill. These facts appearing by extrinsic evidence, there was a latent ambiguity in the will. Parol evidence was properly receivable in the effort to dissolve this ambiguity. Lefevre v. Lefevre, 59 N. Y. 434; Matter of Taylor, Cloak v. Hammond, L. R. 34 Ch. Div. 255; Henderson v. Henderson, 1 Ir. Rep. [1905] 353.

[2] In view of the unanimous affirmance by the Appellate Division of the judgment appealed from, the single question which survives for consideration in this court relates to the rulings of the Special Term excluding the evidence of the witness Kellar. Mr. Kellar was the attorney for the testatrix, and was the draftsman of and a subscribing witness to her will. The testatrix, a woman about 70 years of age, called upon Mr. Kellar and gave him instructions as to the drawing of her will. With her on this occasion and present at the office of Mr. Kellar at the time was Mrs. Stiefhold. Mrs. Stiefhold lived with the testatrix and acted as companion and housekeeper. The instructions as to her will were given to Mr. Kellar in the presence of Mrs. Stiefhold, who, while within hearing, testified that she ‘did not pay very much attention.’ When Mr. Kellar was called as a witness he was asked as to the instructions he had received from the testatrix as to the legacies and the provisions for the residuary estate. The question was excluded under objection of the plaintiff and subject to the exception of the appellant. It thus becomes necessary to determine whether Mr. Kellar, the attorney, should have been permitted to testify to communications which took place between himself and his client, the testatrix, in the presence of Mrs. Stiefhold. This evidence should have been received and considered by the court below. Doheny v. Lacy, 168 N. Y. 213, 223,61 N. E. 255;People v. Buchanan, 145 N. Y. 1, 26,39 N. E. 846;People v. Hayes, 140 N. Y. 484, 495,35 N. E. 951,23 L. R. A. 830, 37 Am. St. Rep. 572;Brennan v. Hall, 131 N. Y. 160, 165,29 N. E. 1009;Matter of Eckler, 126 App. Div. 199, 203,110 N. Y. Supp. 650;People v . Bloom, 124 App. Div. 767,109 N. Y. Supp. 344;Matter of Barnes, 70 App. Div. 523, 527,75 N. Y. Supp. 373;Lecour v. Importers' & Traders' National Bank, 61 App. Div. 163, 168,70 N . Y. Supp. 419;Matter of Smith, 61 Hun, 101, 104, 15 N. Y. Supp . 425;Matter of McCarthy, 55 Hun, 7, 11, 8 N. Y. Supp. 578. See, also, People v. Andre, 153 Mich. 531, 539, 117 N. W. 55;Scott v. Aultman Co., 211 Ill. 612, 615, 71 N. E. 1112,103 Am. St. Rep. 215;Roper v. State, 58 N. J. Law, 420, 33 Atl. 969. Mrs. Stiefhold was not present and acting in the character of a confidential agent of the testatrix, nor was her presence necessary to enable the parties to communicate with each other. No attempt was made by the testatrix to prevent her hearing the communication which she made to her attorney. The fact that Mrs . Stiefhold did ‘not pay very much attention’ to what was said does not alter the situation....