pany was not liable, except for the negligence of Grounsell. The verdict of the jury established that Grounsell was not negligent. The judgment against appellant is contrary to the law of the case, and cannot stand. People v. Munroe, 119 App. Div. 704, 104 N. Y. Supp. 675; Id., 190 N. Y. 435, 83 N. E. 476. I favor reversal.

WALLACE et al. v. WALLACE et al.

(Supreme Court, Special Term, Westchester County.

1. EVIDENCE (§ 278*)-DECLARATIONS AGAINST INTEREST.

October, 1911.)

In an action to have the residuary devisee and executor under a will declared a trustee to execute the terms of a contract for the execution of mutual wills by the testatrix and her husband, declarations by such testatrix tending to show the existence of such a contract were competent as admissions against interest against the personal representative and beneficiaries.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1137, 1138; Dec. Dig. § 278.*]

2. EVIDENCE (§ 220*)-DECLARATIONS AGAINST INTEREST.

And statements of the husband, made in the presence of and without objection from such testatrix, were also admissible to show such matters.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 771-785; Dec. Dig. 220.*]

3. WITNESSES (§ 202*)—PRIVILEGED COMMUNICATIONS COMMUNICATIONS TO ATTORNEY.

Under Code Civ. Proc. § 835, which provides that an attorney shall not be allowed to disclose communications made by his client to him in the course of his professional employment, in an action to have the terms of a contract between a husband and wife to make mutual wills enforced against the executor of the wife's estate, a clerk and a stenographer, who were in the office of the lawyers claimed to have drawn such wills at the time of their alleged execution, were not competent to testify as to such matters, or to establish a writing as a copy of the will in question.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. 88 756, 757; Dec. Dig. § 202.*]

4. WITNESSES ( 255*)-PRIVILEGED COMMUNICATIONS-COMMUNICATIONS TO ATTORNEY.

While, under Code Civ. Proc. 836, which provides that an attorney shall not be disqualified to testify as to the preparation and execution of a will, where he is one of the subscribing witnesses thereto, a former clerk in the law office in which a will was prepared was competent to testify as to its execution, where he was a subscribing witness, his testimony was incompetent, where based upon a refreshing of his memory by the establishment of a copy of the will by testimony incompetent under section 835.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 874-890; Dec. Dig. 255.*]

5. WITNESSES (§ 219*)-PRIVILEGED COMMUNICATIONS-WAIVER-RIGHT OF PERSONAL REPRESENTATIVE TO WAIVE.

Code Civ. Proc. § 836, provides that the personal representative of a testatrix may waive the professional privilege of a medical witness, •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

but makes no provision as to such a waiver of a witness disqualified as the attorney of a testator under section 835. Held, that a waiver of the right of such representative to object to such witness, or to the admission of letters written to attorneys, cannot be predicated on a failure to object to the admission of such testimony in a related action. [Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 769, 781, 782; Dec. Dig. § 219.*]

6. WILLS (8 58*)—ContrACT TO DEVISE-EVIDENCE.

In an action to have the residuary devisee and executor under a will declared a trustee to execute the terms of a contract for mutual wills by the testatrix and her husband, evidence held insufficient to sustain a finding of the execution of such contract and wills.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 164, 165; Dec. Dig. § 58.*]

7. WILLS (§ 58*)-CONTRACTS TO DEVISE-ESTABLISHMENT.

A contract binding one to devise his property must be established by an instrument in writing, or, if based on parol, the contract must be established by the clearest and most convincing evidence of disinterested witnesses and in certain and definite terms.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 164, 165; Dec. Dig. § 58.*]

8. WILLS ($ 58*)-INTEREST-EVIDENCE.

In an action to establish a contract to devise, evidence held to show that certain witnesses were not disinterested.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 164, 165; Dec. Dig. 58.*]

9. WILLS (§ 58*)-CONTRACTS TO DEVISE EVIDENCE.

Testimony of verbal admissions of a testator is of slight probative force in establishing a contract to devise.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 164, 165; Dec. Dig. § 58.*]

10. WILLS (8 78*)-RIGHT TO REVOKE-AMBULATORY Nature.

A will is by its nature ambulatory and subject to change, so that a statement of a testator that his will is final will not import an agreement that it cannot thereafter be changed.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 198; Dec. Dig. $ 78.*]

11. COURTS (§ 90*)—ADJUDICATION-EFFECT-FACTS.

A decision of another judge as to the effect of a set of facts is not decisive or conclusive in a subsequent proceeding.

[Ed. Note. For other cases, see Courts, Cent. Dig. §§ 313-321, 351; Dec. Dig. § 90.*]

Action by Jessie Wallace and others against Howard Gurdon Wallace and others. Judgment for defendants.

John H. Jackson, of New York City (Edward W. Hatch and Ambrose F. McCabe, of counsel), for plaintiffs.

Clifford Couch, of Peekskill (Franklin Couch, of counsel), for defendant Howard G. Wallace.

Smith Lent, of New York City, for defendant Ruddy.

MILLS, J. 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

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

probated by the Surrogate's Court of Kings county, November 22, 1909, and letters testamentary thereon were, by that court, then duly issued to the defendant Howard Gurdon Wallace, who thereupon qualified and is still acting as such executor. Juliet Wallace left an estate aggregating about $800,000, nearly all of which she had received from her husband, James P. Wallace, who had predeceased her January 18, 1897, leaving a last will and testament, executed May 18, 1894, by which he left his estate to his widow, the said Juliet Wallace. The plaintiffs and the said defendant Howard Gurdon Wallace are the surviving children of Gurdon B. Wallace, who was a brother of Juliet Wallace.

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

topic, and the authorities therein cited, and reflecting upon the matter, I conclude that the said first and second classes of evidence were admissible, and that said third class was incompetent and inadmissible.

[1] As to the second class, namely, the declarations of Juliet tending to show or acknowledge the existence of the trust contract alleged, it seems clear to me that they are competent evidence. They were her admissions against interest, tending to establish the obligation here charged against her, and are competent proof against her personal representative and those who take under her will. Hurlburt v. Hurlburt, 128 N. Y. 420, 28 N. E. 651, 26 Am. St. Rep. 482.

[2] The declarations of James P. were admitted only so far as they appear to have been made in the presence of Juliet and with her acquiescence, express or implied. His statement in the immediate presence and hearing of his wife, as testified to by Miss Whitcomb, was of such a character that she would naturally have spoken if she had not recognized such statement to be correct; and therefore, upon elementary doctrine, her failure to speak may, of itself, be taken as her acquiescence in the statement, and therefore the statement be accepted as though made by her.

[3] As to the third class of reserved evidence, as the record now stands, by the testimony of a former clerk (Flynn) of the law firm of Butler, Stillman & Hubbard, who in 1904 and up to her death, or at least until 1902, when her will was made, were the attorneys of Juliet, and by the testimony of Devlin, a lawyer then in the employ of that firm, and now in the employ of the law firm of Wallace, Butler & Brown, the successors of the first-named law firm, and by the testimony of Leddy, then the stenographer of Butler, Stillman & Hubbard, plaintiffs have been enabled to prove that on May 18, 1894, Juliet Wallace executed a will, of which Exhibit B, attached to the complaint, is a copy, at the same time and place and with the same witnesses that her husband executed his will. The said firm of Butler, Stillman & Hubbard were the attorneys of both James P. and Juliet. The late John Notman, of that firm, in the main attended to their legal business.

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

was found, Flynn was examined as a witness for the plaintiffs, and testified that, without having his recollection refreshed by something. he could not say whether or not he was a subscribing witness to any other will, namely, one by Juliet made at the time when James P. Wallace made his will, to which it was established he was one of the subscribing witnesses. Counsel for the plaintiffs, in withdrawing Flynn as a witness at that point in his testimony, said:

"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 oc-' casion 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.

[4] The recent case of Matter of Cunnion, 201 N. Y. 123, 94 N. E. 648, Ann. Cas. 1912A, 834, in effect decides that, aside from any question of waiver, the testimony of the lawyer or clerk, Devlin, and of the stenographer, Leddy, is entirely incompetent, as prohibited by section 835 of the Code of Civil Procedure. Under section 836 of that Code, Flynn, having been one of the subscribing witnesses, was competent. As to him, Juliet Wallace may be deemed to have waived. the prohibition of section 835. But, as the main and vital part of his testimony was based upon the forbidden evidence as to the typewritten copy and its source and his examination of the same in open court, it would seem clear that at least that part of his testimony is equally incompetent. It was expressly held in the Cunnion Case, 135