59 Mass. 558 - Dunham v. Branch — 59 Mass. 558

Sylvania Dunham vs. Grove W. Branch. The interest of a witness may be released by an instrument not under seal. An heir at law of one deceased, whose administrator had brought an action of trespass for taking the personal property of the intestate, having released and transferred to the administrator all his interest in such property, and thereupon received from the administrator a written promise to indemnify him from all costs and charges on account of the suit; it was held, that this promise would operate to prevent the administrator from obtaining an allowance of the costs from the judge of probate, if such allowance would aifect the heir, or reach his distributive share of the estate; and, consequently, that it was effectual to render the heir a competent witness in such action. This was an action of trespass, originally commenced by Frederick Dunham, and now prosecuted by his administi 1 ;v, to recover damages for the taking of a yoke of oxen and other property, against the defendant, a deputy sheriff, who had attached the same on mesne process, as the property of one Evander Dunham. The trial was before Byington, J., in the court of common pleas. The plaintiff called as witnesses Evander Dunham and Gustavus Dunham, sons and heirs at law of Frederick Dun-ham, the intestate ; and the defendant objecting to their competency on the ground of interest, the plaintiff then produced two papers, which she contended rendered the said Evander and Gustavus competent witnesses. The first paper, which was signed “ Sylvania Dunham, by Thomas A. Gold, attorney,” but not under seal, was as follows:—11 To Evander Dunham, Gustavus Dunham, and William Bender., In consideration of your release and transfer to me of all your interest in or claim to the oxen and other property sued for in my action against Grove W. Branch, I hereby promise and agree to save you free and harmless from all costs and charges whatever in my said action.” The second paper, signed by Gustavus Dunham and Evan der Dunham, was in the following terms : — “ We the subscribers, as heirs to the estate of Frederick Dunham, deceased, in consideration of a release to us of all liability for costs in the suit of Sylvania Dunham, administratrix, now pending in the court of common pleas, and of ten cents, paid to each of us, we hereby release, acquit, and discharge all our claims to the oxen and other property claimed by the suit of Grove W. Branch, and do hereby assign and sell the same to the said Sylvania Dunham.” Thomas A. Gold, the plaintiff’s attorney, by whom the first paper purported to be signed as attorney, testified, that the plaintiff was present at the time, and that he signed the instrument in her behalf, and by her direction and consent. The defendant contended, that notwithstanding the execution of these instruments, the witnesses were still interested in the event of the suit; and that the papers in question were not in law releases, for want of authority in Gold to execute the first in the manner he did, and for the further reason that they were not under seal. But the presiding judge overruled the objections, and admitted the witnesses, who thereupon gave evidence to prove that the property described in the plaintiff’s writ belonged to the plaintiff’s intestate, and not to Evander Dunham. The jury returned a verdict for the plaintiff, and the defendant excepted. The case was argued in writing. E. Merwin, for the defendant. 1. The releases were not sufficient in form. A seal is necessary to a release. Co. Lit. 264 b; Bac. Ab. Release; Jacob, Law Dict. Release. The word is used in this sense, when it is said that the competency of a witness, disqualified by interest, may always be restored by a release. 1 Greenl. Ev. § 426; Shaw v. Pratt, 22 Pick. 305; Walker v. McCulloch, 4 Greenl. 421; Harrison v. Close, 2 Johns. 448, 449; Rowley v. Stoddard, 7 Johns. 207, 209; De Zeng v. Bailey, 9 Wend. 336. This appears also from the rule of evidence, that a receipt, acknowledging payment of all demands, may be varied and controlled by paroi evidence, 1 Greenl. Ev. § 305; Brooks v. White, 2 Met. 283; but a release, that is, a wilting under seal, is conclusive. Deland v. Amesbury Man. Co., 7 Pick. 244; W. Boylston Man. Co. v. Searle, 15 Pick. 225; Rice v. Woods, 21 Pick. 30. There is no case, in which it has been directly held, that a writing not under seal was a sufficient release. In Boynton v. Turner, 13 Mass. 391, both releases were under seal. In Ford v. Ford, 17 Pick. 418, the release from the witness was under seal; and no objection was raised in the argument, or considered by the court, to the want of a seal to the indemnity given to the witness. 2. The releases were inadequate in substance. The release from the witnesses to the administratrix was not of all their interest in the action, but only in “ the property claimed.” This left in them, being heirs of the intestate, a twofold interest in costs, that the administratrix should recover costs to increase the funds of the estate, and that she should not be subjected to costs which would be a proper charge on the es-bate. The liability to costs rendered the witnesses incompetent. Baker v. Tyrwhitt, 4 Camp. 27; 1 Greenl. Ev. § 391, note; § 428; 1 Phil. Ev. (2d Amer. ed.) 98. And the release from the administratrix to the witnesses does not obviate the objection, being merely an agreement to save the witnesses personally harmless from the costs of the action, and not to indemnify the estate, in which the witnesses were directly interested. In Ford v. Ford, 17 Pick. 418, the plaintiff gave a full indemnity to the estate, and upon that ground the witnesses were held admissible. The costs of this action, conducted by the administratrix in good faith, it having been commenced by the intestate himself, would be a proper charge against the estate in favor of the plaintiff. T. A. Gold and T. G. Gold, for the plaintiff. — Dewey, J. (majority) Dewey, J. It is no objection to the competency of the witnesses offered in this case, that they had not released all their interest in the estate of Frederick Dunham by a writing under seal. A release by deed must of course be under seal, and this is the most appropriate form of making a release, inasmuch as a seal imports a consideration. But there may be equally valid releases without any sealed instrument, as those by operation of law, or releases made by the parties upon good and valuable consideration. The latter are equally effectual as the former. The release here executed by the witnesses had upon its face a sufficient legal consideration, namely: that the administratrix had agreed to release the witnesses from all responsibility for costs accruing in the case. This was relinquishing his right to present a claim for such costs, against the estate, to the judge of probate, who would allow the same to be paid out of the estate, if the costs were properly incurred. There was no necessity, therefore, that the release from the witnesses of their interest should have been by a sealed instrument. As to the objection to the form of executing the writing, containing the promise of the administratrix to indemnify against costs, we do not understand that it is farther pressed. The evidence of the attorney was direct, that it was executed in her presence and under her direction. But it was further insisted, that the witnesses were still interested in the matter of costs, and that the general residuum of the estate to be divided among the heirs would be affected by the result of this case. It is said, that the promise of the administratrix is merely a promise to save the witnesses personally free and harmless from all costs and charges incurred in this suit, and not a discharge of all claims which she might have upon the estate therefor. But we think that this promise of the administratrix is available beyond the personal liability of the witnesses. In fact, there was no personal liability of the witnesses for costs, and it was only through the allowance of the claim of the administratrix therefor, by the judge of probate, that they could be affected in the matter of costs. But the right of the administratrix, to an allowance for costs expended by her in prosecuting this suit at law, is through the judge of probate; and if an application for that purpose should be made in reference to the costs of the present case, this promise of the administratrix would doubtless be an effectual bar to any allowance for them, if they were to affect the heirs at law, to whom the promise was made ; or if allowed to the extent of the pro rata share of these witnesses, the administratrix would under her promise be obliged to refund. The cases of Boynton v. Turner, 13 Mass. 391, and Ford v. Ford, 17 Pick. 418, seem to authorize the admission of such witness, under a release of interest by him in the specific property of the intestate, and a promise by the administrator not to claim an allowance for costs and expenses. The release by the witness, in the case of Ford v. Ford, was under seal, and in that respect differs from this; but that, as already remarked, is immaterial, if the release is made upon a good consideration. We are of opinion that the witnesses were properly admitted Exceptions overruled.