Wallace v. Wallace
Decision Date | 28 September 1915 |
Citation | 109 N.E. 872,216 N.Y. 28 |
Parties | WALLACE et al. v. WALLACE et al. |
Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Second Department.
Suit by Jessie Wallace and others against Howard Gurdon Wallace and others for specific performance. From a judgment of the Appellate Division (158 App.Div. 273, 143 N.Y.Supp. 1148), affirming a judgment of the Special Term dismissing the complaint, plaintiffs appeal. Affirmed.
John H. Jackson, of New York City, for appellants.
Clifford Couch, of Peekskill, for respondents.
CUDDEBACK.
This action was brought to compel specific performance by the defendant Howard Gurdon Wallace, individually and as executor, of a contract made between James P. Wallace and his wife, Juliet Wallace, to execute mutual irrevocable wills. The complaint alleges that, shortly prior to the 18th day of May, 1894, James P. Wallace and his wife, Juilet Wallace, entered into a contract whereby it was agreed that the husband should make his will devising and bequeathing to his wife all his property, real and personal, provided she should be living at the time of his death, and, if she was not living, to direct that his estate should be divided into two equal parts; one part going to certain of his relatives, and the other part to certain of his wife's relatives. The contract also provided that the wife should make her last will and testament, devising and bequeathing all her property and estate to her husband, provided he should be living at the time of her death, and, if not living, to direct that her property be divided into two equal parts, and disposed of in the same manner and to the same persons mentioned in the will of the husband. The contract also was that the wills so made should be irrevocable and forever binding upon the parties. The complaint further alleges that the contract was duly executed and mutual and reciprocal wills were made as provided for on May 18, 1894.
On January 18, 1897, the husband, James P. Wallace, died, and his last will and testament made according to the provisions of the contract was duly proved, and his estate was disposed of as provided by the will. Subsequently, and on May 2, 1902, the widow, Juliet Wallace, made another last will and testament, contrary to the provisions of the contract, and to the will of May 18, 1894. She died on November 29, 1909, and her will made in 1902 was proved and admitted to probate, and the defendant Howard Gurdon Wallace, the executor therein named, was proceeding to dispose of and distribute the estate of the decedent in compliance with such will, when this action was brought. The plaintiffs were beneficiaries under both wills of Juliet Wallace, but the shares that they would have received under the will of 1894 were considerably larger than those which they received under the will of 1902. The defendant Howard Gurdon Wallace was also a legatee under both wills of Juliet Wallace, but he received a very much larger portion of her estate as residuary legatee under the second and last will than under the first.
[1] The will executed by Juliet Wallace on May 18, 1894, could not be produced on the trial of the action, and secondary evidence was offered to show its contents. The lawyer who drew the will of the husband, James P. Wallace, in 1894, and who, it was alleged, had also drawn the will of Juliet Wallace in that year, was dead at the time of the trial. Three witnesses, who had all been employed by the lawyer, were called upon to show the execution and contents of the missing will. The first witness, John F. Devlin, testified that he had made an examination in the office of the deceased lawyer of the papers connected with the estate of James P. and Juliet Wallace, and had found what purported to be a typewritten copy of the will of Juliet Wallace, executed May 18, 1894. The next witness, Charles Flynn, was a clerk in the office of the same lawyer, and he testified that he had made the engrossed copy of the will of Juliet Wallace which was executed, and that he was a witness to the will, and had also witnessed the will of James P. Wallace. He further testified to the due publication and execution of the will of Juliet Wallace, and that the other subscribing witnesses thereto were dead. The third witness, James H. Leddy, was a stenographer in the same law office. He testified that he had made the typewritten copy produced by the witness Devlin from the engrossed copy of the will made by Flynn, and that after making the copy he compared it with Flynn. The typewritten copy was thereupon offered and received in evidence. The testimony of the three witnesses, Devlin, Flynn, and Leddy, was first received by the trial court, but was afterwards striken out on motion, and an exception taken to this last ruling of the court presents the main question argued on this appeal.
The evidence was struck out as improper under section 835 of the Code of Civil Procedure, because it revealed a confidential communication between attorney and client. With this ruling fell also the typewritten copy of the will, based on the evidence excluded. The court excluded the testimony upon the authority of Matter of Cunnion, 135 App.Div. 864, 120 N.Y.Supp, 266, and 201 N.Y. 123, 94 N.E. 648, Ann.Cas.1912A, 834. In that case what purported to be the last will of the testator was offered for probate, and it was sought to show that he had made a subsequent will substantially revoking the one offered. The second will could not be found, and to prove its contents the attorney who drew the will and his stenographer were called as witnesses. The attorney produced a paper which was marked for identification, and the stenographer testified that she had made a copy of this paper and returned it with the copy to the attorney. The attorney then testified that the copy was the second will. It was held that the evidence of the attorney and his stenographer and the paper offered were properly excluded.
I think that decision is inapplicable, and that the case under consideration rather falls within the principle of Hurlburt v. Hurlburt, 128 N.Y. 420, 28 N.E. 651, 26 Am.St.Rep. 482,Doheny v. Lacy, 168 N.Y. 213, 61 N.E. 255, and Britton v. Lorenz, 45 N.Y. 51. In Hurlburt v. Hurlburt a father and son went together to an attorney for advice on a matter in which they were both interested. The father and son were both dead, and in a contest between their representatives the court held that the attorney was a competent witness to prove the statements of the deceased clients. The court said:
“It has frequently been held that the privilege secured by this rule of law (section 835 of the Code) does not apply to a case where two or more persons consult an attorney for their mutual benefit; that it cannot be invoked in any litigation which may thereafter arise between such persons, but can be in a litigation between them and strangers.”
The only material difference between the facts in the case at bar and Hurlburt v. Hurlburt is that it does not here appear that both James P. Wallace and Juliet Wallace were present when the instructions to the attorney regarding the wills were given. But it does appear that at the same time and place and before the same witnesses they executed their mutual wills, which were prepared by the same attorney, and that such wills contained reciprocal and identical provisions. It was not essential that the statements of Mr. and Mrs. Wallace to the attorney should have been actually made in the presence of each other to bring the case within the rule laid down in Hurlburt v. Hurlburt. If both were not present when the communications to the attorney were made, it is certain...
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