Evening journal., 1914-06-25
MUST
GIVE TESTIMONY
Chancellor Curtis So Rules
AS To John BiggS in Cot
tingham Case
NO DELAWARE CASES
BEAR ON QUESTION

1Shit VI IhaiACNie ANSteAudS after
noon handed down a very important
decision in the Cottingham will case
upon the question as to whether or
not an attorney in a case has the
privilege to decline to answer ques-
tions because his knowledge Of the
matter inquired of was obtained while
acting in a professional capacity.
In his opinion. in which he states
that there are no cases in Delaware
which have real bearing on the
question raised. the chancellor orders
that the testimony of the attorney be
admitted, holding that no suficient
reason has been shown whv the anes-
witness
The opinion OF the chancellor in
the case. which is of great importance
as II will have a bearing on ali sim
liar cases that arise in the future Is
as follows:
ln the Court Of Chancery Of the
state Of Delaware. in and for New CAS-
tie county.
Teresa 9. Mahoney, Winifred Cottinp.
ham and Joseph II. Mahoney. an infant
John /. Mahoney, an infant. and John
Cottingham. an infant, by their next
friend, Maxwell Mahoney, Maxwell Ma.
honey, administrator of Robert Cottinq-
ham, deceased and Maxwell Alahoney.
administrator Of Thomas Cottingham.
deceased. vs. Margaret A. Healv. Mar.
garet A. Healy, administrators Of Wini-
fred Cottingham, deceased and Marga-
ret A. Healv, exeentrix Of Robert A..
Cottingham, deceased.
During the taking of testimony on be.
half Of the complainants. John Biggs
an attorney t-law. produced as a wit,
ness, declined to answer several ques
tions because his knowledge Of the
matter inquired of was obtained while
acting in professional capacity There
upon the complainants applied for and
obtained a rule on 1he witness to show
cause why he should not be ordered to
answer the questions. and the witness
appeared gratis and stated that he de.
sired to be instructed
Charles w. Bush. one Of the solicitors
for the complainants.
Hugh NJ Morris, one of the solicitors
for the defendants.
The Chancellor: The bill was brought
to set aside certain transfers of prop.
erty made by Winifred Cottingham in
her life time, it being claimed that the
transfers We're made through fraudu-
lent influences and that Winifred Cot
tingham was then mentally incompetent
TO make the transfer The suit was by
grandchildren Of Winifred Cottineham
after her death. (See AIahoney v. Healv.
3 Del Oh 273)
As the mental capacity Of Winifred
Cottingham was in question, Mr. Biggs
was asked whether he had visited Wini-
fred Cottingham respecting the making
OF will by her, and he declined to an
swer because his knowledge was gained
while acting as her legal adviser No
objection seems to have been made by
counsel for the defendant to the ques
tions, or to their being answered 1t
was apparent that the purpose of the
questions was to eleeit evidence as to
the mental condition of Winifred Cot
tingham. At the hearing of the rule the
question was argued as one of privi-
legged communication between attorney
and client It seems to be well settled,
however. that the rule of privilege does
not apply in litigation instituted after
the death of the Tient where all the
parties claim under the client Russell
V. Jackson, Q Hare 3S7, 392, 6s Eng. Re
print SOS; Glover V. Patten. l65 u s..
394; Kern v. Kern. l54 Ind %; Down
ing's VIII, lis Wise 5Sl; Norton v.
Clark, 253 III. 557 565; Coates V. Sem
per, 81 Mimi AGO; Layman's viii. 40
Minn. 37l; Phillips " Chase, POI Mass.
444; Dougherty V. O'Callaghan, l57
Mass 90. ~ L. r. a. lsS and note:
Wilkinson v. Service. 249 III. l46.
In the case of Glover Patten, 1855
Z. 5. 394, 406, the court said:
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 communica-
tions might be privileged if offered BY
third persons to establish claims against
an estate, they are not within the rea-
son Of the rule requiring their exclu-
sion, when the contest is between the
heirs or next of kim
This was an action by children to es-
tablish their rights as creditors of the
estate of their deceased mother.
In Russell V. Jackson, . Hare. 3s7. 6s
Eng. Reprint 55S, the court held mat
in testamentary dispositions the very
foundations on which the rule protect
ing confidential disclosures proceeds
seems to be wanting, where the contest
is between parties, all Of whom claim
under the testator.
In Phillips y. Chase. 2Ol Mass. 444,
449 tl90g), it was said:
"Where the controversy is not be-
tween an estate and persons claiming
against it, but to determine who shall
take by succession the property Of de-
ceased person. and both parties claim
under him, the reason for the privilege
(of communication made to an at
torney) does not exist and neither can
set up a claim of privilege against the
other"
Instructions to an attorney as TO
drawing win are not privileged com
munieations in a contest to establish
the will Wilkinson " Service, 249 III.
LAG, $50; Norton V. Clark, 253 H. 564
In re Downing's VIII, lis Wise. 28l
Coates v. Samper, 50 MINI. 460.
There are no cases in Delaware which
have a real bearing on the question here
raised In this case the rule of privi-
lege does not apply. All the complain
ants are grandchildren Of Winifred Cot
tingham and claim under her, and are
seeking to set aside transfers made kv
her Margaret A. Healy. the real de-
fendant, is a daughter Of Winifred Cot
tingham. If the transfer is set aside
the parties complainant and defendant
will get their shares of the property
transferred. Testimony as to state.
ments and conduct of Winfred Cottine
ham. if otherwise admissible in evi
dence, are not to be excluded because
the person to prove them is the one
who received his knowledge as her at