In re Gagan's Will

The objection to the testimony of the witness Thornton is not well taken. This testimony is objected to, first, because the witness is named in the will as an executor, and, not having renounced such appointment, is an interested party, within the meaning of section 829 of the Code. Loder v. Whelpley, 111 N. Y. 239 , 18 N. E. Rep. 874 , is cited as authority. in support of this claim. That case only decides that an executor who is also a legatee may release his legacy, and then be a competent witness in probate proceedings, although he has not renounced his appointment; following In re Wilson, 103 N. Y. 374 , 8 N. E. Rep. 731 , which originated in this court.

This testimony is also objected to because it discloses communications made by the deceased to the witness, who was his attorney, in the course of professional employment. Code Civil Proc. § 835. In Re Coleman, 111 N. Y. 220 , 19 N. E. Rep. 71 , it was held-that the testator waived, as he might do under section 836, the pledge of secrecy imposed by this statute at the time he requested his lawyer to become a witness to the will. The legislature, however, afterwards, in 1891, by an amendment to section 836, provided that the waiver must be made on the trial or examination. This will was executed January 29, 1892, and the testator died February 21, 1892. The proceedings for the probate of the vill were commenced April 14, 1892, and the witness Thornton was examined therein May 26, 1892. The legislature by another amendment to section 836, which took effect May 12, 1892, provided that “nothing herein contained shall be construed to disqualify an attorney, on the probate of a will heretofore executed, * * * from becoming a witness as to its preparation and execution, in case such attorney is one of the subscribing witnesses.” So that the admission of the testimony of this witness was by legislative sanction-, and also, properly, independently of the statute, for 1 think the statute was declaratory of the law as it then stood. I am not aware that it had been so declared in the higher courts, but in this court it has been held, since the amendment of 1891, that the testator, by asking his attorney to become a witness to his will, not only waived the pledge of secrecy imposed by the statute, but thereby removed and dissolved the confidential relation of attorney and client existing between them, so far as the execution of the will was concerned. This view of the law is a fair conclusion to be drawn from the argument of the court in Re Coleman, supra, notwithstanding the statement there made that, except for the waiving having been made, the testimony would not have been admissible. See, also,

Will admitted to probate.