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Ervesun v. Bank of New York

Decided: February 2, 1968.

ENRIQUE A. ERVESUN, PLAINTIFF-APPELLANT,
v.
BANK OF NEW YORK, ETC., DEFENDANT-RESPONDENT. MARY ELLEN BALDWIN, PLAINTIFF-APPELLANT, V. BANK OF NEW YORK, ETC., DEFENDANT-RESPONDENT



Kilkenny, Carton and Crahay. The opinion of the court was delivered by Carton, J.A.D.

Carton

Plaintiffs appeal pursuant to leave granted from an order of the Chancery Division denying their application for discovery.

They seek to take the depositions of certain attorneys concerning communications between them and Manuel E. Rionda and Ellen G. Rionda, both of whom are now dead, and to inspect all documents under the control of these

attorneys in relation to the disposition of property by the Riondas by way of will, codicil or inter vivos transaction. It should be noted, however, that since the trial court found that none of the attorneys represented Manuel Rionda, the order appealed from relates only to communication with Ellen Rionda.

The consolidated actions in furtherance of which the discovery is requested seek to impress a trust upon the assets of the estate of Ellen G. Rionda under her 1963 will. The basis of these actions is plaintiffs' contention that the Riondas made an irrevocable agreement in 1948 to make mutual and reciprocal wills according to an agreed testamentary plan. That plan called for the execution of a will by each of these leaving substantially all of his or her estate to the survivor, and gifts by the survivor to plaintiffs of certain specific items and designated percentages of the residuary estate. Plaintiff Ervesun claims his interest has a value in excess of half a million dollars; plaintiff Baldwin asserts an interest estimated at about half of that amount.

The complaints allege that Ellen's 1963 will, after the death of her husband, represented a breach of the agreement made in 1948. Defendant-executor of the 1963 will resists application for discovery, contending that the communications and evidence are privileged by virtue of the attorney-client relationship.

The facts necessary to a resolution of the issue are not in substantial dispute. Mr. and Mrs. Rionda were domiciliaries of New Jersey. They had no children. Ervesun was a cousin of Mr. Rionda and had lived frequently with the Riondas. Plaintiff Mary Ellen Baldwin is a daughter of a long-time friend of Mrs. Rionda.

On May 14 and June 2, 1948, respectively, Manuel and Ellen Rionda made wills which plaintiffs assert were in accord with the testamentary plan allegedly agreed upon.

Manuel died on February 9, 1950. Under his will executed in 1948 he bequeathed virtually his entire estate to his wife,

Ellen, and designated her, along with plaintiff Ervesun and one Charles R. Niedlinger, as executors. Edmund B. Hourigan, an attorney of this State, represented the estate on the probate of that will.

During the period from February 16, 1950 to April 10, 1954, Hourigan allegedly drew and attended to the execution of several wills and codicils by Ellen Rionda which plaintiffs assert followed the agreed testamentary plan. He also is said to have prepared another will dated January 22, 1957, which is said to represent the first major deviation from that plan. Between January 22, 1957 and August 1, 1963 Ellen executed several wills said to have been prepared by Hamilton F. Reeve, an Englewood attorney, which progressively departed from the testamentary plan manifested in the 1948 wills.

On August 1, 1963 Mrs. Rionda, then aged 85, executed her last will. Under that will she bequeathed the bulk of her substantial estate to a Dr. Bolton, her attending physician, and his family. She bequeathed $5,000 to Ervesun but left nothing to Baldwin. The will also provides that if any beneficiary contests the will or aids in any action to invalidate any of its provisions, he shall be deprived of the right to share in her estate.

Plaintiffs aver that Dr. Bolton referred Mrs. Rionda to both Reeve and Cummins, and that the latter attorney referred her in 1963 to the firm which prepared the last will and ...


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