p. 728Appeal by the plaintiff, Joseph 0. Eintelen, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 20th day of June, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of June, 1911, denying the plaintiff’s motion for a new trial, and also, as. stated in the notice of appeal, from a final decree entered on the 15th day of June, 1911. ■
This action was brought under section 2653a of the Code of Civil Procedure,- and the jury found that the writing purporting to be the last will and testament of Elizabeth Eintelen, deceased, was in truth and fact her last will and testament.
Gormly J. Sproull [Herbert H. Kellogg with him- on the brief], for the appellant.
Henry C. Frey [Gaston F. Livett with him on the brief], for the respondents.
The witness Livett was the attorney for the testatrix, and drew the will. attacked upon grounds of testamentary incapacity and undue influence. Several items of his testimony are: (1) His conversation with her when he was retained; (2) that he had three conferences with her relating to the preparation of the will and its execution, at the first and second of which another person was present, and that no other person than the testator gave any data, or facts, or instructions, with reference to the preparation of the will or its contents; (3) what was said and done by her in the presence of the witnesses and others, in which he was not shown to have participated, when the will was executed ; (4) his identification of the will and her signature; (5) that he had read the will and draft to her a few days before; (6) that he had subsequent conversations with her on. other subjects involving business relations, in the presence of third parties, and what he told her; (7) that he prepared another draft or changed the first draft at the suggestion of the testatrix, and that no one else was present when suggestion of the change in the will was made; (8) that her acts and conversation impressed him as rational; (9) that he had no diffi
p. 729culty whatever in making himself understood by her, and always got sensible answers in reply to his questions. So the attorney laid bare his relations to her in the several matters for which he was retained, even to showing that she alone gave him the data for the will, and used the communications from one to the other to base thereon his opinion of her sanity and her ready understanding of his communications and sensible answers. What she communicated in words, in actions, in mental alertness, in appearance, he disclosed. He could, under the ruling, have told all that he did and declared her statements irrational. I will not discuss whether each and every item of evidence was so hurtful as to require a reversal, but as to all evidence of colnmunications from one to another in’the course of their relations as client and attorney and his judgments therein, he was incompetent by section 835 of the Code of Civil Procedure.
(Matter of Cunnion, 201 N. Y. 123 .) That authority would also condemn his testimony of what she said at the time of the execution of the will. His statement that no other person gave him data, facts or instructions, with reference to the preparation of the will, or its contents, is inadmissible, at least in connection with other questions. That item implies this: some person did furnish him the data; no other person than she gave it to him. Therefore she furnished the information. In exculpating others she is shown to have made the necessary communications. He could as availably have stated that none of the persons accused of undue influence furnished data.
The judgment and order should be reversed and a new trial granted, costs to abide the event.
Jenks, P. J., Carr, Woodward and Rich, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.