Estate of Algerine Allen Smith - Page 27




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          not accepted.14  Additionally, the evidence in the record                   
          indicates that the Jarvis Christian defendants vigorously                   
          contested Exxon’s claims.  These facts, including Mr. Glasser’s             
          testimony, support a finding that the fair market value of                  
          Exxon’s claim as of decedent’s date of death was significantly              
          less than the amount Exxon was seeking, and not more than the               
          $681,840 allowed in the notice of deficiency.                               



               14At trial on remand, the estate objected, under Fed. R.               
          Evid. 408, to the introduction of Exhibit 60, which was the                 
          letter containing the settlement offer from Exxon to the Allen              
          parties.  Exhibit 60 was included in the second supplemental                
          stipulation of facts that was filed prior to the trial on remand.           
          The second supplemental stipulation of facts states that “Any               
          relevance objection may be made with respect to all or any part             
          of this stipulation at or before the time of trial, but all other           
          evidentiary objections are waived unless specifically expressed             
          in this stipulation.”  In the second supplemental stipulation of            
          facts, the estate objected to Exhibit 60 only on the grounds of             
          relevance and hearsay.  A fundamental rule of evidence is that an           
          objection not timely made is waived.  United States v. Jamerson,            
          549 F.2d 1263, 1266-1267 (9th Cir. 1977); Fed. R. Evid.                     
          103(a)(1).  In the instant case, the estate waived all                      
          evidentiary objections to Exhibit 60 except for relevance and               
          hearsay, and failed to make a timely objection.  See, e.g.,                 
          Calcasieu Marine Nat. Bank v. Grant, 943 F.2d 1453, 1458 (5th               
          Cir. 1991); Fed. R. Evid. 103(a)(1).  In any event, the estate              
          did not raise an objection based on Fed. R. Evid. 408 to the                
          admission of Exhibit 82, which was the estate tax return for                
          Frankie Allen which decedent signed and filed in her capacity as            
          executrix of Frankie’s estate.  The same settlement offer from              
          Exxon to the Allen parties was included in the estate tax return.           
          See supra pp. 10-11, 26.  Additionally, we note that settlement             
          evidence may be admissible where it relates to a claim other than           
          the one being litigated, Towerridge, Inc. v. T.A.O., Inc., 111              
          F.3d 758, 770 (10th Cir. 1997), or where it is for a purpose                
          other than to prove liability for or invalidity of the claim or             
          its amount.  Reichenbach v. Smith, 528 F.2d 1072, 1074 (5th Cir.            
          1976); Fed. R. Evid. 408.                                                   





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