In re the Probate of the Will of Gagan — 49 N.Y. St. Rep. 366

Majority

p. 366

In the Matter of the Probate of the Will of Henry Gagan, Deceased.^[1]

(Supreme Court, General Term,, Second Department,

Filed December 12, 1892.)

Headnote

1. Will—Attorney who is subscribing witness competent to testify.

An attorney who, at the request of his client, signs the will of the lattei as a witness is competent to testify on its probate.

p. 367

2. Same—Executor.

One named as executor in a will may testify to its execution if witnessed by him.

Appeal from decree of the surrogate of Orange county, admitting will to probate.

The will of the deceased is dated January 25, 1892. One of the witnesses to its execution, Howard Thornton, is an attorney at law, and he prepared the will. He is also named as one of the executors. The deceased died February 21, 1892, and proceedings for the probate of the will were commenced April 14, 1892.

Three grounds were urged against the probate of the will:

1. That Thornton, being the attorney who drew the will, was incompetent to testify as to its execution under § 836 of the Code.

2. That Thornton, being named as executor, and being a witness, was incompetent to testify, and also ineligible to qualify.

3. That testator was of unsound mind and incompetent to make a will.

Thornton was examined as a witness on May 26, 1892.

J. Lewis Strahan (E. A. Brewster, Jr., of counsel), for app’lt; Howard Thornton, for resp’t.

The testator made his will in January, 1892. Howard Thornton, an attorney in the supreme court, drew the will, supervised its execution and was a witness to it as well as one of the executors of it. Objection was made that he was not a qualified witness. Section 835 of the Code originally provided that an attorney should not disclose a communication made to him in the course of his employment. This section was subsequently amended by a new section, 836, which permitted a waiver of the disclosure. The court of appeals has held in respect to proof by an attorney of a delivery of a deed by instruction of a client, that he was a competent witness. That the communication was made to be communicated. Rousseau v. Bleau, 131 N. Y., 177 ; 42 St. Rep., 871 .

In the Matter of Coleman, 111 N. Y., 220 , 19 St. Rep., 501 , the court of appeals applied the same rule to attorneys who, at the request of a client testator, witness his will.

One named as an executor in a will may testify to its execution if witnessed by him. Children's Aid Society v. Loveridge, 70 N. Y, 387 .

The decree should be affirmed, with costs.

Dykman and Pratt, JJ„, concur.