¶1I concur in that part of the opinion of Merwin, J„ which points out the error in refusing the offer by the plaintiff to show bv the witness Ramsdell that the settlement of the judgment against Silas Graves was made upon the voluntary offer of the holder of the judgment, previously made; and, by reason of that error, I think a new trial should be granted. The questions of fact involved in the case are very important, and the evidence of Ramsdell is vital upon the principal and pivotal question. Because the principal question of fact has been once passed upon by a trial judge, a new trial before a jury, upon issues settled, would perhaps be more satisfactory. These views lead me to concur in the result, and join Merwin, J., favoring a reversal of the judgment now before us. The judgment should be reversed on the exceptions, and a new trial ordered, with costs to abide the event.
9 N.Y.S. 145
Graves v. Graves
Decided February 11, 1890
New York Supreme Court · decided 1890-02-11
<p>1. Wills—Contract with Devisee—Promise to Distribute Property.</p> <p>On an issue whether a devise made by plaintiff’s father to his wife was in reliance on her agreement to divide the same equally among their children, the attorney who drew the will testified that, before the will was signed, testator declared to his wife he wanted to divide his property equally among his children, and had willed it all to her, and that she was to divide it between them as they might thereafter agree, and that after her assent the will was executed. The witness admitted that on a settlement of a judgment against plaintiff he had stated that the widow was the absolute owner of the property, and that plaintiff would never get anything unless she chose to give it to him. Other witn esses testified to statements of the widow that she intended the property to be divided as her husband “wanted it. ” Evidence was also given of a partial division of the property among the children. Meld, that the devise was made on testator’s request to his wife to divide the property at or before her death among their children, and on her promise to do so.</p> <p>2. Same—Evidence—Declarations.</p> <p>The declarations of the widow as to the distribution of the property were competent evidence, not only to corroborate the testimony of the attorney, but to show what the arrangement in fact was.</p> <p>3. Witness—Credibility—Explanation of Statements.</p> <p>To explain the statement by the attorney at the time of the compromise of the judgment against plaintiff, the latter offered to show by the attorney that the settlement was made on the voluntary offer of the holder of the judgment. Meld% that the testimony was improperly excluded; for, if the statement was casual, and not to induce a settlement, its bearing on the credibility of the witness would be very different.</p> <p>i. Appeal—Review—Objections not Raised Below.</p> <p>An objection to testimony on the ground that it was a privileged communication between attorney and client cannot be raised for the first time on appeal.</p>
Decided 1890-02-11