Passmore v. Estate of Passmore

Tbe claimant in tbe year 1882 presented for allowance against tbe estate of ber late busband a note given by bim to bis son Lewis Passmore, September 5,1870, for tbe sum of four hundred dollars. Tbe evidence tended to show that tbe maker once paid and took up tbe note, and afterwards dehvered it to bis wife upon the temporary loan of the sum specified in it. Tbe claim was contested as baseless, and tbe questions of fact to which attention was mainly directed on tbe trial were, whether tbe claimant bad rightfully come in possession of tbe note, and whether an endorsement of twenty dollars which she bad made thereon as of September 23, 1876, represented an actual payment. Unless this payment was made, remedy upon tbe note was barred by tbe statute.

*627The plaintiff gave positive evidence in support of her claim, and this was met by proof of many circumstances which cast suspicion upon it. Among other things it was shown that she brought suit for divorce, and in applications made by her for alimony, the last of which was made in 1880, she stated that she had no means whatever to provide for her support, and that since April 17, 1872, when she and her husband separated, she had received no support or aid from him except the sum of ten dollars. This was supposed to be inconsistent with her claim that twenty dollars was paid to her in 1876. To meet this suggestion it was sought to show by the claimant that when the petition for alimony was drawn the twenty dollars was not mentioned because her counsel told her it need not be, inasmuch as it was not paid to her for support but upon a debt. The judge met this proposition by the statement, “ She can’t explain what advice she got from her counsel to justify her conduct. I wouldn’t receive it from the attorney, because I would not allow him to swear she told him anything in this matter. I shall have to exclude this testimony.” The judge was laboring under some error. It is every day’s practice to permit a party to justify his conduct by testifying that what he did was by advice of counsel. And the counsel himself is allowed to testify for this purpose to the advice he gave. There is a privilege of secrecy as to what passes between attorney and client, but it is the privilege of the client and he may waive it if he so chooses. Chase's case 1 Bland Ch. 206; Parker v. Canter 4 Munf. 273; Foster v. Hall 12 Pick. 89 ; Benjamin v. Coventry 19 Wend. 353; Whiting v. Barney 30 N. Y. 330; Riddles v. Aikin 29 Mo. 453; Fossler v. Schniber 38 Ill. 172; Stanton v. Hant 27 Mich. 539; Duttenhofer v. State 34 Ohio St. 91; Rowland v. Plummer 50 Ala. 182. It is not the privilege of the court or of any third party.

The evidence having raised serious doubts if the claimant was in possession of the note as a demand owing to her before her husband’s death, she was asked, when on the stand as a witness, whether she made efforts to sell it while *628he was living. The question was objected to, and ruled out. The fact would have been important if she could have ■established it, and especially if she could show that the offers were public and repeated. ¥e think she should have been permitted to show it. It tended to establish one of the most important points in controversy: namely, whether the claimant was then asserting the rights of a creditor against her husband. The defence, relying upon circumstances, disputed this; and there could be no more conclusive method of meeting their evidence than by proof that the claim was actually made.

One Niles, a witness for the claimant, was asked on cross-examination what the claimant said to him in a certain conversation about being embarrassed and about owing debts, and replied that she said she was embarrassed; that she was owing debts; that she had not the means to build; and that there was a small mortgage on her place. On re-examination the witness was asked to^give all the conversation he had with the claimant about her embarrassment. This was objected to, and ruled out. We think the evidence should have been received. It is unjust to put in evidence part of a conversation and exclude the remainder, and the general rules of evidence do not admit of it. It is suggested that the proposed evidence had no importance; but this is a case which is likely to turn on a great variety of circumstances seemingly unimportant when separately considered, and so far as they are legally admissible they ought all to be put before the jury.

There are other errors assigned which have no force.

The case must go back for a new trial, and the claimant recover the costs of this Court.