In re Cardoner's Estate.Bujac v. Wilson.

• Decision Date: 02 March 1921
• Docket Number: No. 2485.,2485.
• Parties: IN RE CARDONER'S ESTATE.BUJACv.WILSON.
• Court: New Mexico Supreme Court

27 N.M. 105

196 P. 327

IN RE CARDONER'S ESTATE.BUJAC

v.WILSON.

No. 2485.

Supreme Court of New Mexico.

March 2, 1921.Rehearing Denied March 23, 1921.

Syllabus by the Court.

A claim against the estate of a deceased person by an attorney for a retainer, alleged to have been agreed to between the decedent, in her lifetime, and the attorney, cannot be maintained upon the uncorroborated testimony of the attorney, but, under the requirements of section 2175, Code 1915, there must be produced some independent evidence which in and of itself tends to corroborate the claimant as to the making of the agreement for the retainer.

Appeal from District Court, Bernalillo County; Hickey, Judge.

Proceedings by E. P. Bujac for the allowance of a claim against the estate of Aline Mathilde Julia Bouvard Cardoner, deceased, opposed by Joseph R. Wilson, as executor. Judgment for claimant, and the executor appeals. Reversed and remanded, with directions.

A claim against the estate of a deceased person by an attorney for retainer, alleged to have been agreed to between the decedent, in her lifetime, and the attorney, cannot be maintained upon the uncorroborated testimony of the attorney, but, under the requirements of section 2175, Code 1915, there must be produced some independent evidence which in and of itself tends to corroborate the claimant as to the making of the agreement for the retainer.

A. B. McMillen, of Albuquerque, for appellant.

Marron & Wood, of Albuquerque, for appellee.

PARKER, J.

A claim was filed against the estate of the deceased by the appellee for the sum of $3,692.85. The proceeding resulted in judgment allowing the claim for the sum of $2,952.85. In order to justify the allowance of this claim against the estate it was necessary for the court to find that appellee had been employed by the decedent in her lifetime at an agreed retainer of $3,500 and expenses in the prosecution of certain litigation which she had both in this country and in Spain. The testimony by the appellee was that this contract was oral, and that no one else was present at the time of the making of the contract. He sought to corroborate his testimony to meet the requirements of section 2175, Code 1915, which requires corroboration in case of suits against the estates of deceased persons where the claim depends upon claimant's own testimony in respect of any matter occurring prior to the death of the decedent. The testimony put forward by the appellee as corroboration is a power of attorney executed by the decedent appointing appellee her attorney in fact, with power to prosecute the legal business contemplated between the parties. This power of attorney is evidence of the appointment of appellee as the attorney of the decedent, but in it nowhere is mentioned anything concerning the amount of compensation to be received by him, or the time and manner of payment thereof. This clearly is not corroboration of the fact that there was an agreed retainer of $3,500. Appellee also relies upon a letter written by himself to the decedent, in which he asks her to send $1,000, together with another small item for expenses, which he would apply partly on expenses and partly as a retainer. To this letter the decedent replied, stating that she was, in accordance with his request, mailing him a check for the amount requested. The most that can be said for these two letters is that the decedent recognized the justice of a claim for a retainer, but it makes no mention of the retainer, and fails to reach the point at issue so as to corroborate the testimony of the appellee. Appellee likewise relies for corroboration upon the testimony of Judge Charles R. Brice, but an examination of that testimony discloses that it in no way corroborates him. Judge Brice was not present at the time of the alleged employment of the appellee, and knows nothing about the terms of any such employment. He does testify that in Albuquerque he met the decedent for the first and only time, and during a conversation of a general character, which was had between the witness and the decedent, the subject of appellee going to Spain to attend to her business was mentioned, as well as his employment to collect certain claims against a Mr. Wilson, who resided in Philadelphia. His testimony discloses that at that time the employment was prospective and had not yet been consummated, and the witness did not undertake to say that he knew anything about the terms of the employment. It thus appears that there was no corroboration of the vital fact necessary to sustain this judgment, namely, that the decedent employed the appellee and agreed to pay him $3,500 as a retainer. The proof of that fact rests solely on appellee's testimony.

Section 2175, Code 1915, was enacted in 1880, and has remained in the same form ever since that time, and is as follows:

“In a suit by or against the heirs, executors, administrators or assigns of a deceased person, an opposite or interested party to the suit shall not obtain a verdict, judgment or decision therein, on his own evidence, in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.”

This section has been many times before the territorial court and this court for consideration. It was first considered in Gildersleeve v. Atkinson, 6 N. M. 250, 27 Pac. 477. In that case the question presented was whether the purchase price of an interest in a land grant had been fully paid by the vendee during his lifetime. Gildersleeve, the vendor, claimed that the vendee never fully paid the purchase price for the conveyance of his interest in the land grant, and that he, the decedent, and his administratrix, owed him the sum of $10,000 as a portion of said purchase price. Objection was made to the claim against the administratrix upon the ground that the testimony of the claimant was not corroborated. In order to meet this requirement Gildersleeve produced a witness, who testified that he at one time sought from Atkinson an option on the land grant, and that Atkinson told him that if anything might occur, or would occur, he should see Mr. Gildersleeve about it, who was interested with him in the Anton Chico grant. Gildersleeve further produced Judge Henry L. Waldo as a witness, who testified that in a conversation with Atkinson he said to Atkinson that Gildersleeve claimed that Atkinson had agreed to divide the profits on the sale of the grant. Gildersleeve further produced a letter from Atkinson to the effect that in event of a sale of the land grant he would allow Gildersleeve reasonable attorney's fees for his services in connection with the title to the grant. The court analyzes the effect of each one of these items of proof, and shows conclusively that they failed to amount to any corroboration of the claim made by Gildersleeve that there was an unpaid balance of $10,000 upon the purchase price of the land grant. After a lengthy discussion of the different authorities on corroboration in the various phases of legal...