In re Mullin
Before: Henshaw
Synopsis
Probate of Will—Contest—Mental Capacity of Testator—Evidence of Attorney.—In a contest over the probate of a will where the question of the capacity of the testator in making the will is in issue, evidence of occurrences between the testator and the attorney who drew the will, and became a subscribing witness thereto, and the declarations and instructions of the testator are admissible and competent evidence upon the question of the testator’s mental capacity at the time of the testamentary act.
Id,—Privileged Communications—Waiver of Privilege—Construction of Code—Attorney as Witness.—Section 1881 of the Code of Civil Procedure is designed to protect the interest of the client, whose privilege it is either to seal the lips of the attorney, or permit him to make disclosures of confidential communications, and where a testator has requested his attorney to become an attesting witness to his will, he thereby expressly waives the privilege.
Id.—Physician as Witness—Waiver of Privilege.—Where an attending physician and surgeon who attended the deceased during his last sickness was made a subscribing witness to the will, the testator thereby waived the privilege of confidential communications to the physician accorded by subdivision 4 of section 1881 of the Code of Civil Procedure, and the witness is thereby rendered competent to testify as to the mental sauity and physical condition of the testator.
Id.—Cross-examination of Physician.—A physician testifying to the mental sanity of the testator at the time of the testamentary act may be cross-examined not only as to his qualifications, but also as to his knowl. edge of the character of the patient’s afflictions, and as to all the facts or circumstances within his knowledge and acquaintanceship with the patient, upon which his judgment was exercised and his conclusion reached. Id.—Legal Execution of Will—Finding against Evidence.—Where the evidence without conflict shows a legal execution of the instrument probated as a will, provided the deceased had sufficient mental capacity and understanding to execute the will, a finding to the contrary cannot be sustained where it appears without conflict that he had sufficient mental capacity and understanding to make the will.
Henshaw, J. Mary T. Mullin, widow of deceased, offered his will for probate. A contest over its administration was raised by the brothers and sister of the deceased. The jury, upon special issues presented for their consideration, found that the deceased, at the time of the making of the purported will, was not of sound and disposing mind; that the deceased did not subscribe his name to the will, nor did any person so subscribe his name in his presence and by his direction; that no such subscription was made in the presence of the attesting witnesses, or was acknowledged by deceased to them to have been made by him or by his authority.
In accordance with these findings and others afterward to be considered, the court entered its judgment and decree denying the instrument probate, and from [254]this decree and from the order denying a new trial the proponent appeals.
1. George A. Proctor, called as a witness for proponent, was a subscribing witness to the will, and was also the attorney at law of the deceased in preparing and drawing the will. Proctor was summoned to prepare the will. He visited the deceased, who was then in his last sickness, received his instructions, retired to an adjoining room, reduced them to writing, and returned to the sick chamber, where the will was executed, he becoming a subscribing witness.
Objection was made by contestants to questions put to him upon direct .examination touching the declarations made to him by deceased, and the instructions given him, and the occurrences at the interview immediately preceding the drafting of the instrument, upon the ground that the evidence was incompetent under section 1881, subdivision 2, of the Code of Civil Procedure.
The court sustained the objection. In this it erred. Evidence of the occurrences between the attorney and testator and the latter’s instructions would have offered a valuable aid to the jury in determining the question of the testator’s mental capacity at the time of the testamentary act which followed immediately. The testimony was, therefore, clearly material, and the conversation was admissible if not in violation of section 1881 of the Code of Civil Procedure. That section is designed to protect the interest of the client. It is his privilege to seal the lips of his attorney or to permit him to make disclosures of confidential communications. When a testator has requested his attorney to become an attesting witness to his will, he thereby expressly waives the privilege. It is so held by the court of appeals of New York, under the provisions of section 885 of their Code of Civil Procedure, which, in substance, is identical with section 1881, subdivision 2, of our own. As is said in Alberti v. New York etc. R. R. Co., 118 N. Y. 77: “But, although dead, he may leave behind him evidence which
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