Ervesun v. Bank of New York

• Decision Date: 02 February 1968
• Docket Number: Docket No. C--199--66,No. A--1553,Docket No. C--848--66,A--1553
• Citation: 99 N.J.Super. 162,239 A.2d 10
• Parties: Enrique A. ERVESUN, Plaintiff-Appellant, v. BANK OF NEW YORK, etc., Defendant-Respondent. () Mary Ellen BALDWIN, Plaintiff-Appellant, v. BANK OF NEW YORK, etc., Defendant-Respondent. ()
• Court: New Jersey Superior Court — Appellate Division

Page 162

99 N.J.Super. 162

239 A.2d 10

Enrique A. ERVESUN, Plaintiff-Appellant, v. BANK OF NEW YORK, etc., Defendant-Respondent. (Docket No.

C--199--66.)

Mary Ellen BALDWIN, Plaintiff-Appellant, v. BANK OF NEW YORK, etc., Defendant-Respondent. (Docket No.

C--848--66.)

No. A--1553.

Superior Court of New Jersey, Appellate Division.

Argued Dec. 11, 1967.

Decided Feb. 2, 1968.

Donald J. Rapson, Asbury Park, for appellants (Lautman & Rapson, Asbury Park, attorneys).

Everett M. Scherer, Newark, for respondent (Riker, Danzig, Scherer & Brown, Newark, attorneys, Peter L. Berkley, Newark, on the brief).

Before Judges KILKENNY, CARTON and CRAHAY.

The opinion of the court was delivered by

CARTON, J.A.D.

Plaintiff appeal pursuant to leave granted from an order of the Chancery Division denying their application for discovery.

They seek to take the depositions of certain attorneys concerning communications between them and Manuel E. Rionda and Ellen G. Rionda, both of whom are now dead, and to inspect all documents under the control of these attorneys in relation to the disposition of property by the Riondas by way of will, codicil or Inter vivos transaction. It should be noted, however, that since the trial court found that none of the attorneys represented Manuel Rionda, the order appealed from relates only to communication with Ellen Rionda.

The consolidated actions in furtherance of which the discovery is requested seek to impress a trust upon the assets of the estate of Ellen G. Rionda under her 1963 will. The basis of these actions is plaintiffs' contention that the Riondas made an irrevocable agreement in 1948 to make mutual and reciprocal will according to an agreed testamentary plan. That plan called for the execution of a will by each of these leaving substantially all of his or her estate to the survivor, and gifts by the survivor to plaintiffs of certain specific items and designated percentages of the residuary estate. Plaintiff Ervesun claims his interest has a value in excess of half a million dollars; plaintiff Baldwin asserts an interest estimated at about half of that amount.

The complaints allege that Ellen's 1963 will, after the death of her husband, represented a breach of the agreement made in 1948. Defendant-executor of the 1963 will resists application for discovery, contending that the communications and evidence are privileged by virtue of the attorney-client relationship.

The facts necessary to a resolution of the issue are not in substantial dispute. Mr. and Mrs. Rionda were domiciliaries of New Jersey. They had no children. Ervesun was a cousin of Mr. Rionda and had lived frequently with the Riondas. Plaintiff Mary Ellen Baldwin is a daughter of a long-time friend of Mrs. Rionda.

On May 14 and June 2, 1948, respectively, Manuel and Ellen Rionda made wills which plaintiffs assert were in accord with the testamentary plan allegedly agreed upon.

Manuel died on February 9, 1950. Under his will executed in 1948 he bequeathed virtually his entire estate to his wife Ellen, and designated her along with plaintiff Ervesun and one Charles R. Niedlinger, as executors. Edmund B. Hourigan, an attorney of this State, represented the estate on the probate of that will.

During the period from February 16, 1950 to April 10, 1954 Hourigan allegedly drew and attended to the execution of several wills and codicils by Ellen Rionda which plaintiffs assert followed the agreed testamentary plan. He also is said to have prepared another will dated January 22, 1957, which is said to represent the first major deviation from that plan. Between January 22, 1957 and August 1, 1963 Ellen executed several wills said to have been prepared by Hamilton F. Reeve, an Englewood attorney, which progressively departed from the testamentary plan manifested in the 1948 wills.

On August 1, 1963 Mrs. Rionda, then aged 85, executed her last will. Under that will she bequeathed the bulk of her substantial estate to a Dr. Bolton, her attending physician, and his family. She bequeathed $5,000 to Ervesun but left nothing to Baldwin. The will also provides that if any beneficiary contests the will or aids in any action to invalidate any of its provisions, he shall be deprived of the right to share in her estate.

Plaintiffs aver that Dr. Bolton referred Mrs. Rionda to both Reeve and Cummins, and that the latter attorney referred her in 1963 to the firm which prepared the last will and which represents defendant in the present actions.

All of the attorneys from whom discovery is sought by plaintiffs claim that the communications with their deceased client are privileged by virtue of the attorney-client relationship.

This well-defined privilege, with certain exceptions to it, has been long recognized in the case law of our State. It became a part of our statutory law upon the adoption of Rule 26 of the Rules of Evidence in 1960 (N.J.S. 2A:84A--20). In the present case the validity of the claim of privilege turns upon the proper interpretation to be given to an exception to Rule 26. This rule, in pertinent part, provides:

'* * * (C)ommunications found by the judge to have been between lawyer and his client in the course of that relationship and in professional confidence, are privileged, and a client has a privilege (a) if he is the witness to refuse to disclose any such communication, and (b) to prevent his lawyer from disclosing it, and (c) to prevent any other witness from disclosing such communication if it came to the knowledge of such witness (i) in the course of its transmittal between the client and the lawyer, or (ii) in a manner not reasonably to be anticipated by the client, or (iii) as a result of a breach of the lawyer-client relationship. The privilege may be claimed by the client in person or by his lawyer, or if incompetent, by his guardian, or if deceased, by his personal representative. * * *

(2) Exceptions. Such privileges shall not extend * * * (b) to a communication relevant to an issue between parties all of whom claim through the client, regardless of whether the respective claims are by testate or intestate succession or by Inter vivos transaction, * * *.'

In denying plaintiffs' application for discovery the trial judge held that Rule 26(2)(b) did not apply to the present case for the reason that plaintiffs did not 'claim through the client,' and therefore the communications are privileged.

We are of the opinion that the communications sought to be deposed fall within the exception and are not exempt from disclosure. Plaintiffs assert claims as beneficiaries of an agreement between Ellen G. Rionda and her husband which was evidenced by mutual and irrevocable wills setting forth the agreed testamentary pattern of distribution. They hope to establish the existence and terms of that agreement through oral and written communications between the decedent Ellen Rionda and her various attorneys. Such communications are certainly relevant and perhaps vital to the issue between the parties whether such an agreement was made. They, as well as defendant-executor and the named beneficiaries of her last will, claim Through the decedent Ellen Rionda. Their claims arise out of an agreement made by Mrs. Rionda during her lifetime. That claim is not the less 'through the client,' Ellen Rionda, because it arises by virtue of an Inter vivos contract. Rule 26(2)(b) places such claims on a parity with those arising by testate or intestate succession. The communications in question would therefore appear to fall precisely within the language of the exception.

The nature and history of the attorney-client privilege support this conclusion. The attorney-client privilege is the oldest of the privileges for confidential communication, reaching back to Elizabethan times, and is said to be rooted in Roman law. See 8 Wigmore, Evidence (McNaughten rev. 1961), § 2290; McCormick, Evidence, § 91 (1954).

As Wigmore points out, the privilege seems to have been developed originally as a natural exception to the then novel right of testimonial compulsion. The original theory of its exclusion was 'a consideration for the Oath and the honor of the attorney rather than for the apprehension of his client' (§ 2290). This theory was ultimately repudiated by a recognition that 'the judicial search for truth could not endure to be obstructed by a voluntary pledge of secrecy, nor was there any moral delinquency or public odium in breaking one's pledge under force of the law' (§ 2290).

The following further quotation from Wigmore enunciates the modern policy theory and the subjective consideration upon which the privilege is grounded:

'In order to promote freedom of consultation of legal advisors by clients, the apprehension of compelled disclosure by the legal advisors must be removed; hence the law must prohibit such disclosures except on the client's consent.' (§ 2291)

Our courts have recognized that where the privilege is applicable, it must be given as broad a scope as its rationale requires; that is, the promotion of the client's freedom of consultation with his legal advisor and the assurance that the risk of disclosure by the attorney has been removed. State v. Kociolek, 23 N.J. 400, 415, 129 A.2d 417 (1957). See Hansen v. Janitschek, 57 N.J.Super. 418, 433, 154 A.2d 855 (App.Div.1959) (dissenting opinion), reversed 31 N.J. 545, 158 A.2d 329 (1960) (adopting dissenting opinion below).

Our courts have also been cognizant however, that the privilege results in the exclusion of relevant evidence. See Hansen v. Janitschek, supra, 57 N.J.Super., at p. 433, 154 A.2d 855 (dissenting opinion). More harshly, it has been described as 'a privilege to suppress the truth.' 1 Morgan, Basic Problems of Evidence 101 (1954). This thought finds cogent expression in the dissenting opinion of Judge Conford in the Hansen case:

'* * * Nevertheless, since the privilege results in the exclusion of evidence, the doctrine 'runs counter to the...