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Opinion of the Court.

4. That the cause of action is barred by the statute of limitations. It has always been held by the Supreme Court of Maryland that the act of 1715, which is still in force in this District, Shepherd v. Thompson, 122 U. S. 231, 234, does not apply to a claim by an executor against his estate, inasmuch as the executor cannot sue himself at law. State v. Reigart, 1 Gill, 1; Brown v. Stewart, 4 Md. Ch. 368; Spencer v. Spencer, 1 Md. Ch. 456; Semmes v. Young's Admr., 10 Maryland, 242.

Irrespectively of this, however, it appears that in October, , 1887, Mrs. Patten loaned $15,000 to one John E. Beall, and took a note payable to the order of the four complainants, which was subsequently paid to them. The testimony of the complainants as to this transaction is objected to upon the ground that by Rev. Stat. § 858, “in actions by or agair.st executors, administrators or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or settlement by the testator, intestate or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court.” Conceding the statute to be applicable to this case, it does not apply to the testimony of Beall himself, who swore to making a loan of this amount from Mrs. Patten, and giving a note payable to the order of the four complainants, Mrs. Patten stating “that the money was advanced to them out of the fund belonging to them out of their father's estate, and that she wished them to have the income of that amount of money"; that "she wished the interest notes made payable at intervals of three months, so that they might have the income, and she used the words ‘pin money’; and further declared that she never had made them any allowance, and she wished them to have for themselves, every three months, the interest of this money to spend for themselves.” She also said “that $45,000 was being distributed in this manner to the four girls as a part of what was coming to them from their father's estate, and she said that she had made advances to Mrs. Glover.” The note was subsequently paid to the four daughters. The testimony of another witness is to the effect that Mrs. Patten told him “that it was some money she

Opinion of the Court.

wanted to give those four girls for pin money to give them a sense of independence,

and, further, that she had already provided for the other daughter — the married daughter — quite liberally, and she thought that she ought to give these girls something."

This testimony is not only uncontradicted, but accords with the probabilities of the case. It is scarcely reasonable to suppose that Mrs. Patten, who was indebted to her daughters in the sum of over $100,000 should have advanced them the large sum of $45,000 purely as a gift, and with no intention of being credited with it upon her debt, particularly in view of her statement to the witness Beall, that she made advances to Mrs. Glover. We think this must be regarded as payment upon the account of her indebtedness, and that it removed the bar of the statute of limitations.

In aid of this construction there is the presumption that where a parent, being a debtor to his child, makes an advancement to such child, it is presumed to be a satisfaction pro tanto of the debt. 1 Pomeroy's Eq. Juris. $ 540; Plunkett v. Lewis, 3 Hare, 316.

5. That the communications made by Mrs. Patten to the witness Hillyer were privileged, from the fact she consulted him as her legal adviser. There is some doubt as to whether she did consult him in that capacity, or simply as a friend, who had for a good many years been the attorney of her husband. It is clear that, while she visited him frequently concerning the settlement of her account as administratrix and guardian, she paid him nothing, and he made no charge against her. But whatever view be taken of the facts, we are of opinion that, in a suit between devisees under a will, statements made by the deceased to counsel respecting the execution of the will, or other similar document, are not privileged. While such communications might be privileged, if offered by third persons to establish claims against an estate, they are not within the reason of the rule requiring their exclusion, when the contest is between the heirs or next of kin. That reason is thus stated by Lord Brougham in Greenough v. Gaskell, 1 Mylne & Keen, 98, 103 : “But it is out of regard

Opinion of the Court.

to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources; deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case."

In Russell v. Jackson, 9 llare, 387, 392, the contest was between the heirs-at-law and a devisee. The heirs claimed that the devise was upon a trust, unexpressed, because illegal. It was held that a solicitor, by whom the will was drawn, should be allowed to testify what was said by the testator contemporaneously upon the subject. Vice-Chancellor Turner, in delivering the opinion of the court, observed: “In the cases of testamentary dispositions, the very foundation on which the rule proceeds seems to be wanting; and in the absence, therefore, of any illegal purpose entertained by the testator, there does not appear to be any ground for applying it.

That the privilege does not in all cases terminate with the death of the party, I entertain no doubt. That it belongs equally to parties claiming under the client as against parties claiming adversely to him, I entertain as little doubt; but it does not, I think, therefore follow that it belongs to the executor as against the next of kin, and in such a case as the present. In the one case the question is, whether the property belongs to the client or his estate, and the rule may well apply for the protection of the client's interests. In the other case the question is, to which of two parties claiming under the client the property in equity belongs, and it would seem to be a mere arbitrary rule to hold that it belongs to one of them rather than to the other."

An epitome of this case is given in the opinion of Mr. Justice Swayne in Blackburn v. Crawfords, 3 Wall. 175, 193, in which case, on a question of marriage and legitimacy, an attorney who drew the will for the alleged husband, in which the children of the connection set up as wedlock were described

Opinion of the Court.

as the natural children of the testator, might testify as to what was said by the testator about the character of the children and his relations to their mother, in interviews between himself and the testator preceding and connected with the preparation of the will.

As was said in that case, page 19+, “ the client may waive the protection of the rule. The waiver may be expressed or implied. We think it as effectual here by implication as the most explicit language could have made it. It could have been no clearer if the client had expressly enjoined it upon the attorney to give this testimony whenever the truth of his testamentary declaration should be challenged by any of those to whom it related. A different result would involve a perversion of the rule, inconsistent with its objects and in direct conflict with the reason upon which it is founded.” See also llunt v. Blackburn, 128 U. S. 464, 470.

The same rule has been applied in several cases in the state courts: Layman's Will, 40 Minnesota, 371; Scott v. Harris, 113 Illinois, 447; Graham v. O'Fallon, 4 Missouri, 333; Wharton on Evidence, S 591; Goddard v. Gardner, 28 Connecticut, 172 ; Weeks on Attorneys, $ 165.

6. The objection that the complainants were incompetent to testify as to their mother's statements, and as to the transactions in which she took part, is entitled to some weight, and is not free from doubt. There is much reason, however, for saying that, as the object of this testimony was not to prove complainants' claim against the estate, but to show that their sister Augusta had had a similar claim, and had been paid, and the testimony related to conversations between Mrs. Patten and her daughter Augusta, the statute did not apply — in other words, that it was not a transaction with or a statement by the testator within the meaning of the statute. Monongahela National Bank v. Jacobus, 109 U. S. 275; Wharton on Evidence, $ 468.

We do not, however, consider this testimony indispensable to the maintenance of complainants' bill. Discarding it for the present from our consideration of the case, there is no doubt that Mrs. Patten became the guardian and trustee for

Opinion of the Court.

her children to the extent of one half her husband's estate; that she rendered no account of her stewardship; that, at the suggestion of the witness Hillyer, she procured the document of September, 1885, to be drawn up and signed by her daughters; that by this instrument each of the daughters, except Helen, agreed to accept the sum of $101,600 in full and complete settlement of their accounts, claims and demands between each of them and their mother, arising out of or connected with the administration of their father's estate, and requested that, upon the presentation of this agreement and a receipt for that amount, the court having jurisdiction would, without further investigation, pass the final accounts of their mother as administratrix and guardian, and discharge her bondsmen. There is no doubt, too, that in the month of February, 1887, Mrs. Patten called at the bank of Riggs and Co. and inquired of a member of the firm what amount of bonds, with the premium added, would make up a sum somewhat over $100,000, stating that “her purpose was to transfer these bonds to one of her daughters about to be married"; that he furnished her the necessary figures, "somewhere in the neighborhood of $79,000, which made up about the amount she wished to use,' and that he gave her a memorandum of them; that Mrs. Patten told him afterwards that she put these bonds under her daughter's plate, and that she went off and forgot them. The testimony of the complainants, which for this purpose is competent and uncontradicted, was that Mrs. Glover asked the witness Josephine on one occasion, when she had returned home, where she had been; that she replied that she had been to the Treasury, where her mother went to transfer her bonds to her name to the amount of $80,000, to which Mrs. Glover said, “that is not enough.” Josephine replied : too much; if I had not been there you would have gotten but $79,000”; that she saw the bonds in the possession of her sister, Mrs. Glover, who returned them to her mother with a request that she should keep them for her, and that they were subsequently sent to her at St. Louis by registered mail; that Mrs. Glover repeatedly said to her sisters that “when she was married she would ask for her money ; that she had

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