App. Div. 864, 868, 120 N. Y. Supp. 266, that the prohibition of section 835 extended to putting in evidence the copy of the will, which copy the attorney had retained.

[5] It is, however, contended by the learned counsel for the plaintiffs that the defendant Howard must be held to have waived the prohibition of said section 835 as to these witnesses, Flynn, Leddy, and Devlin, by the fact that at the trial of the other action in this court, at the New York Special Term in December, 1910, he permitted the plaintiffs in that action to introduce their similar testimony without objection upon his part. This is claimed by analogy to the decision in McKinney v. G. S. P. P. & F. R. R. Co., 104 N. Y. 352, 10 N. E. 544, where it was held that in a personal injury action the plaintiff, by examining her physician as a witness in her behalf at a former trial, waived her privilege as to him for all time; so that the defendant could examine him as a witness in its behalf at a subsequent trial. Indeed, the Appellate Division in this department has held that the plaintiff in such an action, by failing at one trial to object to the examination of his physician by the defendant as one of its witnesses, waived the right to object at the trial of another like action to the examination by the defendant of the same physician as a witness in its behalf. Schlotterer v. B. & N. Y. F. Co. (Second Dept.) 89 App. Div. 508, 85 N. Y. Supp. 847.

The difficulty in applying these decisions to the case here is that the defendant Howard, as executor, is not by section 836 authorized to waive the privilege of his testatrix, Juliet Wallace, under section 835, as to these witnesses. In those decisions the party who suffered the physician to be examined at the prior trial was the patient himself. He was competent to waive. Here the client, Juliet Wallace, is dead; and I cannot perceive that section 836 authorizes any one to waive such prohibition. As to a physician, that section authorizes the personal representatives of the deceased patient to waive; but it confers no such authority as to an attorney, and I cannot perceive how, by failure to object, a person not authorized to waive can be held to have waived-in other words, how such a person, by the acquiescence of silence, can be held to have done what he was powerless to do by express action or direction. Therefore I hold and decide that the objections taken by the defendants to the third class of reserved evidence are good, and must be sustained, and such evidence stricken out.

The same reasoning requires the exclusion of the letter of Juliet Wallace to her attorney, William Allen Butler, dated January 30, 1897, and also the memorandum signed by her and marked as Plaintiff's Exhibit No. 7. Indeed, as to those papers there is no proof or admission that they were received in evidence at the trial before Mr. Justice Blanchard.'

If it were affirmatively established that the directions for drawing the two wills, alleged to have been executed on May 18, 1894, and the opportunity to make the typewritten copy produced, were given by the joint action of Mr. and Mrs. Wallace, it might be held that their incidental communications with their common attorney would not be within the protection of section 835, under the doctrine of Hurlburt

v. Hurlburt, 128 N. Y. 420, 28 N. E. 651, 26 Am. St. Rep. 482; but there is no evidence of that sort in the case before me, nor do I think that such situation could be inferred from the mere fact, if it were proven, that the two wills were simultaneously executed.

[6] With the record thus corrected, I do not perceive that there is any evidence that Juliet Wallace, on May 18, 1894, or at any other time, made a will of which exhibit B, attached to the complaint, is a copy. The entries in the books of the Trust Company indicate that a paper was deposited there May 26, 1894, by her husband, as her will, and that, after it had been removed and returned with a paper designated as a codicil, which was deposited with it in 1899, both papers were finally removed by her or by her direction. These entries and her receipt may indicate that she recognized as her will the paper deposited by her husband as such. I find in the corrected record no other evidence that she made any will prior to that of 1902, except such evidence as has been given by Dr. Hoyt and Miss Whitcomb, witnesses for the plaintiffs. The problem before me to decide, therefore, is this: Is the testimony given by those two witnesses sufficient to sustain this action?

The attempt of the plaintiffs here, by such testimony, is to establish that James P. Wallace made and maintained his will, giving all his estate to his wife, upon her making a will giving her estate to him if he survived her, and, if not, then one half thereof to his blood relatives, and the other half to her blood relatives in certain proportions, and upon her engagement, in consideration of his making and maintaining his such will, to maintain hers unaltered to the end; she having survived him and received his estate, and not having maintained her such will.

Of late years there have been, in the Court of Appeals, a series of cases which have very clearly and positively declared the rules which must govern in determining such a claim, namely, a claim that a decedent made a given contract to dispose of his or her estate at death in a different manner than he or she attempted to do. Taylor v. Higgs, 202 N. Y. 65, 95 N. E. 30; Miller v. Hill, 137 App. Div. 378, 121 N. Y. Supp. 741; Id., 203 N. Y. 646, 97 N. E. 1109; Tousey v. Hastings, 194 N. Y. 79, 86 N. E. 831; Holt v. Tuite, 188 N. Y. 17, 80 N. E. 364; Roberge v. Bonner, 185 N. Y. 265, 77 N. E. 1023; Rosseau v. Rouss, 180 N. Y. 116, 72 N. E. 916; Ide v. Brown, 178 N. Y. 26, 70 N. E. 101; Hamlin v. Stevens, 177 N. Y. 39, 69 N. E. 118; Edson v. Parsons, 155 N. Y. 555, 50 N. E. 265.

[7] Those rules, or the leading ones, may be summarized as follows, viz.: (1) Such a contract must be in writing and the writing produced, or, if ever based upon parol evidence alone, it must be given or corroborated in all essential particulars by disinterested wit180 N. Y. 121, 72 N. E. 916. (2) Such testimony must be of the clearest and most convincing character. 180 N. Y. 121, 72 N. E. 916. (3) Verbal admissions of the decedent in any event, and especially when uncorroborated by other facts or evidence, should always be weighed with very great caution, and such admissions, made in the course of casual conversation, when testified to after a great 137 N.Y.S.-4

lapse of time, should be given little probative force. 180 N. Y. 121, 72 N. E. 916. (4) The testimony of such a witness should be free from circumstances making it appear like an afterthought. 194 N. Y. 81, 86 N. E. 831. (5) The evidence must establish the alleged contract in certain and definite terms. 202 N. Y. 70, 95 N. E. 30. (6) The admissions should be recalled and expressed by the witness in substantially the exact language of the decedent, and not merely according to the witness' undertanding. 127 App. Div. 97, 111 N. Y. Supp. 344, and 194 N. Y. 81, 86 N. E. 831. And (7) the alleged contract, or what it would accomplish, should seem to be equitable. 177 N. Y. 48, 69 N. E. 118.

These rigid rules are very clearly and emphatically asserted in the several recent cases from which the substance of the requirements have just above been excerpted. Judged by these tests, it seems to me that the evidence here falls far short of establishing the plaintiffs' case. I have reached this conclusion for the following reasons: First. No written evidence of the alleged contract, or written acknowledgment by the testatrix of its existence, is produced; and it is evident that a rigid search among her effects has disclosed_none such. Considering the business character and experience of James P. Wallace, and the constant aid which the parties had from the late and eminent lawyer, Mr. Notman, the absence of such written proof seems of especial force. It appears quite improbable that such people would have left such an engagement of great importance without written evidence thereof. Indeed, it appears quite extraordinary that, if such end were desired by James P., he would not have secured it by the apt and usual way of leaving a life estate to his wife, which would have been more than ample for her support, with remainder over according to his alleged wishes.

Some adverse comment is made by plaintiffs' counsel upon the fact that the defendant Howard, shortly after his aunt's death, destroyed certain of her papers; and the intimation is made that he may then have destroyed such written contract or evidence. There does not appear to me to be any likelihood that any such writing was then in her safe. If any such had been in her possession, it was likely destroyed when the will of 1902 was made, as all parties concerned must in that transaction have then realized that it constituted a breach of that contract.

Second. Taking the testimony of Dr. Hoyt and Miss Whitcomb in the light most favorable to the plaintiffs, it is without proof of a copy of the will actually made by Juliet on or about May 18, 1894, if she made any such; and therefore such testimony is too indefinite and uncertain as to the terms of the contract to serve the case of these plaintiffs. At the most, such testimony amounts to evidence that Mr. and Mrs. Wallace had made their mutual wills and were to maintain them so as in the end to divide the entire property of both equally between their two families, viz., one half thereof to the blood relatives of James, and the other half thereof to those of Juliet. This, however, would not make the plaintiffs' case, which requires that the contract called upon Juliet to distribute the one-half coming to her blood

relatives in a certain proportion, and therefore forbade her giving to her nephew, the defendant Howard, who had lived with her and served her the latter years of her life, more than to either of his sisters, these plaintiffs.

[8] Third. Neither of these two witnesses now appears to be disinterested. Dr. Hoyt testified that the plaintiffs in such other action, and soon after the same had resulted in a compromise (terms of which are not explained by the proofs here), sent him checks aggregating $7,500 as a gratuity for his testimony. While he insists that he had not been promised anything of the sort, he nevertheless admits that he felt disappointed, when he received those checks, because they were not for a larger amount. Moreover, it appears that before he would, for this trial, come within the jurisdiction of this court from his home in Florida, he exacted from these plaintiffs here the purchase of his $5,000 legacy under the 1902 will of Juliet Wallace, by requiring a deposit of the amount thereof, with interest, in escrow, to be paid over to him as soon as this case may have been decided. His sense of equity seems quite extraordinary, for he claims to consider it proper for him to be secured against loss of his legacy under the 1902 will as the result, in whole or in part, of his testimony given at this trial, when, if his own evident view of the effect of such testimony be correct, that legacy, as well as the residuary legacy to the defendant Howard, was a breach of the contract made by Mr. and Mrs. Wallace and the trust upon which she received from her husband his

estate.

Miss Whitcomb, too, after the trial of the other action, received from the plaintiffs therein, for whom she had testified at such trial, a gratuity of $1,000, although she also here insists that she had no expectation of receiving any compensation or gratuity whatever for or in consideration of her having so testified. It is quite natural to conclude that, whatever may have then been true, she now may indulge some expectation of a similar result in this case, if the plaintiffs here succeed. Indeed, she admits that, some' few months before the present trial, she informed the attorney of these plaintiffs that she had received such gratuity from the plaintiffs in the other action.

Moreover, each of those two witnesses evidently has some sense of grievance. Dr. Hoyt expected that James P. Wallace would leave him a legacy; and to his disappointment, doubtless, after the death of James, Juliet ceased sending him the allowance of $25 a month which, for many years prior to his death, James had made to him. Miss Whitcomb had expected that Juliet would leave her a legacy, and was disappointed that she did not do so in the will of 1902; and yet it is quite difficult to understand with what sense of equity she indulged that expectation, if, as she would now have the court believe, Juliet Wallace was bound to dispose of the entire estate, as her husband had directed, by the alternative disposition in his will.

Fourth. Each of those two witnesses testified to mere verbal statements of the testatrix, made long ago, neither claiming to have been present at the actual making of any agreement between Mr. and Mrs. Wallace, or the making of the alleged mutual wills; Dr. Hoyt to

statements made about 17 years before the trial of the other action, and Miss Whitcomb to one made at that time, and another some 13 years before that trial. There is no intimation that either witness made any memorandum of either alleged conversation, or in any way discussed the same, until a few months before such other trial.

Fifth. While, as explained by him, the interest of Dr. Hoyt in the alleged conversation is manifest, and therefore the same is not to be considered unnatural as to him, yet it seems extraordinary that Mr. and Mrs. Wallace should have had any such talk with Miss Whitcomb, and that she should have had any particular interest therein.

[9] Sixth. It appears that each of those two witnesses, before testifying, received from the party for whom he or she testified, or their attorney, certain suggestions, in writing even, as to the character of such testimony. By such means he was led to recall the significant word "mutual," and she was led to take the stand on the second day and recast her testimony, so as to bring in and emphasize the finality of what Mrs. Wallace said. A comparison of her two testimonies indicates clearly the importance of the change. Her testimony, given on the first day at the other trial, was certainly consistent with a mere intent on the part of Mrs. Wallace not to change her will; while that given by her on the second day, under the suggestion of the plaintiffs' attorney to make her testimony more emphatic, inserted the important words "because it had been made according to the arrangement with Mr. Wallace at the same time." As held in the Tousey Case, supra, 127 App. Div. 97, 111 N. Y. Supp. 344, and 194 N. Y. 81, 86 N. E. 831, words of the former character would have little probative force in an action of this sort.

Seventh. As to Miss Whitcomb, in the end she admitted that she could not be certain of the exact language used by Mrs. Wallace, but that she, the witness, merely gave her understanding of it. In a case like this, where a slight verbal change may be most significant, testimony of that character is of little force, as also was held in the Tousey Case, 127 App. Div. 97, 111 N. Y. Supp. 344; 194 N. Y. 81, 86 N. E. 831. Under such circumstances, it is difficult for the trial court to be satisfied in regard to such testimony as to "how much is inference and how much recollection."

[10] Eighth. The testimony of Dr. Hoyt is entirely consistent with the idea that Mr. and Mrs. Wallace merely expressed their then present intention that the wills, which they had just made or were about to make, should be final. That idea is far from the thought that they had mutually agreed that the survivor should, under no circumstances, change his or her will after the other's death. I do not perceive how what Dr. Hoyt's testimony makes Juliet say, or have said, amounts to anything more than what would appear upon the face of the two wills, if the same were produced or authentic copies of them proven. A will no doubt in a sense is, for the time being, intended by the maker thereof as a final disposition; but by its nature it is ambulatory-that is, subject to change. The statement, "These wills are final," does not of itself import any agreement that they may not here