In re Cunnion's Will

“I am an attorney and counselor at law. * * * I drew the will in this, proceeding; * * * the one offered for probate, I drew that. I drew a will before that, and one after that The one I drew after that was on the 6th' day .of June of this year. I was present at the time of the execution of that will. I gave it to Mr. Ounnion. He took it with him. * * * I remember-the contents of the will.”

He was then asked this question: “I ask you to state the contents, all that you can remember.” -This was objected to as not being the-best evidence, and also “as privileged under section 835 of the Code.” The objection was sustained. Mr. Maher then testified, upon being-shown a paper, that he drew it in the latter part of May, 1908, and: made some alterations in it on the 6th day of June in the same year. This paper was marked “Exhibit 1” for identification. Miss Duncan was then called as a witness, and testified that she was a stenographer, employed by.Mr. Maher. She was then shown the paper, and-testified that she made a copy of it and returned it to Mr. Maher. Mr. Maher was then recalled as a witness, and stated that the paper which Miss Duncan, returned to him was the paper which was executed on June 6th by John Cunnion. It was then offered in evidence. It was objected to, and the surrogate excluded it, upon the ground that to admit it “would be in violation of section 835 of the Code.” This comprises all of the evidence upon the subject.

The objection to Mr: Maher’s testimony upon -the first ground stated was not well taken. The loss of the original had been abundantly proved, so that secondary evidence of its contents became admissible. The other ground of objection is more serious. “An attorney or counselor at law shall not be allowed to disclose a communication, made by his client to him, or his advice given thereon, in the course of his professional employment, nor shall any clerk, stenographer or other person employed by such attorney or counselor be allowed to disclose any such communication or advice given thereon.” Code Civ. Proc. §-835. Although it does not expressly appear from what source Mr. Maher’sknowledge of the contents of the paper of June 6th was derived, in the absence of evidence to the contrary it must be assumed that it was from communications made to him by- the decedent which enabled him to draw the same. Unless, therefore, waived, the prohibition would be applicable. ' The statutory provisions respecting waiver are found in the succeeding section of the Code. Code Civ. Proc. § 836. That the prohibition has been waived in the manner required by the statute no one contends.

The appellant claims, however,'that in the case of wills a special rule must be applied, and that the confidence reposed by a client in his attorney in respect to the contents of the instrument is x>nly temporary. In Wigmore on Evidence, vol. 4, § "2314, the author says:

“But for wills a special consideration comes into play. Here it can hardly be doubted that the execution, and espécially the contents, are impliedly desired by the client to be kept secret during his lifetime, and are accordingly a part of his confidential communication. It must be assumed that during that period the attorney ought not to be called upon to disclose even the fact

of a will’s execution, much less its tenor. But, on the other hand, this confidence is intended to be temporary only. * * * It follows, therefore, that after the testator’s death the attorney is at liberty to disclose all that affects the execution and tenor of the will. * * * As to the tenor and execution of the will, it seems hardly open to dispute that they are the very facts which the testator expected and intended to be disclosed after his death.”

There are two answers to this suggestion: Hirst, the paper the contents of which they seek to prove was not a last will left by the testator. It did not survive him. He never intended that it should be published to the world, and it cannot be argued that he desired the contents to be known after his death, and therefore waived any privilege, for he destroyed the paper in his lifetime. Second, although the principle here contended for seems to find some support in other jurisdictions, the authority in this state is to the contrary. Loder v. Whelpley, 111 N. Y. 239 , 18 N. E. 874 ; In the Matter of Coleman, 111 N. Y. 220 , 19 N. E. 71 . In Eoder v. Whelpley the witness, who was a lawyer, drew the will from a memorandum prepared by the decedent and addressed to him. While he was under examination it was offered in evidence, and received by the surrogate over proper objection. The court held that this was error, although in that particular case it was not so prejudicial as to require a reversal of the judgment. The -court say:

“A lawyer, in receiving the directions or instructions of one intending to make a will, is confided in by reason of his professional character as a coun•selor, and he acts in that capacity, -although asking no questions and without advising, he does nothing more than to reduce those directions to writing. The relation, therefore, between the testatrix and the witness was that of client and attorney.”

In the Coleman Case the court say:

“The evidence showed that the witnesses were a firm of lawyers, residing at Sandy Hill, and were employed by the testator in their professional capacity to draw such wills, and that the conversations testified to were had with them for the purpose of enabling them to execute the instructions of the testator. That these interviews were had in pursuance of and under the sanction of a professional employment, and that communications made by a client under such circumstances to his attorneys were clearly within the protection of the statute, we have no doubt. * * * The prohibition of the statute, therefore, applies to these communications, and they were inadmissible as evidence, unless brought within the provisions of section 836, authorizing their disclosure.”

The question remains whether the court was in error in excluding the paper referred to as Exhibit 1 for identification. It had been proved without objection that the paper offered in evidence was a copy of the paper executed on June 6th. It is urged that if this paper is received in evidence the attorney does not disclose anything, since the paper speaks for itself. It seems to us that this contention is not well made. The paper must be considered in connection with the attorney’s relation to it. If the attorney had kept no copy of the paper of June 8th, he could not disclose his recollection of the contents of it, because that involved confidential communications from his client. Can a different rule be invoked because he wrote down on a separate sheet of paper the contents of that communication, instead of trusting to his memory? The paper is in spirit and effect the communication from the client to the attorney. The rule might be quite different if it was a paper which

The decree of 'the Surrogate’s Court of Kings county should be affirmed, with costs. All concur.