14 Ohio App. 326 | Ohio Ct. App. | 1921
The plaintiffs in error, who were plaintiffs below, brought an action in the court of
At the time the will was executed, March 12, 1917, she was more than 70 years old. She designated Edward J. Dempsey as her executor. She died May 10, 1917. The will contest was tried to a jury which rendered a verdict sustaining the will. Error is prosecuted to this court.
The principal assignments of error are two. Exception is taken to permitting Judge Dempsey, who acted as Mrs. Gleason’s attorney, to testify concerning communications made to him by her and the advice which he gave to her. It is admitted that Judge Dempsey was Mrs. Gleason’s attorney. He was sent for, and, with his partner Mr. Nieberding, conferred with Mrs. Gleason on two occasions. During one of the conferences a Mrs. Criss was in the room part of the time. The statute, Section 11494, General Code, provides:
“The following persons shall not testify in certain respects:
“1. An attorney, concerning a communication made to him by his client in that relation, or his advice to his client * * *. But the attorney*328 * * * may testify by express consent of the client * * * »
The fact that Mrs. Criss may have been in the room part of the time the conference was going on does not establish that communications made during the periods when she was absent from the room are not confidential. The parties were conferring about matters of a confidential nature, and, while it may be argued that Mrs. Gleason did not impose secrecy as to those matters which she voluntarily' permitted Mrs. Criss to hear, that would not alter the confidential nature of the communications made when she was absent, nor of those made at the second conference on March 12, when only Judge Dempsey and Mr. Nieberding were present with Mrs. Gleason. The fact that on one or more occasions communications between attorney and client are held in the known presence of third persons does not prevent communications made later, in the absence of such third person, or made on a different occasion, from being confidential. Except as to those matters spoken in the known presence of Mrs. Criss the communications were confidential.
Mr. Nieberding signed the will as an attesting witness. The request to become a witness to her will operates as an express release or waiver as to him. (Baird v. Dietrick, 8 Ohio App., 198.) It is urged that therefore the seal of secrecy as to those matters which transpired in the presence of Mr. Nieberding was removed as to Judge Dempsey also. The statute requires an express waiver. Where a party has two lawyers 'it seems plain on principle that an express waiver as to one is not a renunciation of all of the rights of the person mak
Judge Dempsey was made executor under the will, and it is argued that the executor has the power to waive the privilege. While there are conflicting decisions. throughout the several states, the Ohio law is that the executor is not so empowered in a will contest. (Swetland v. Miles, 101 Ohio St., 501.) It follows that the court erred in admitting the testimony of Judge Dempsey as to communications with the testatrix, other than those had in the presence of Mrs. Criss.
It is further urged that the court failed to charge the jury regarding the effect of the relation existing between the testatrix and the Rev. James Moore. Father Moore died prior to the probate of Mrs. Gleason’s will. There is evidence tending to show that he hád been pastor of Mrs. Gleason’s church for a number of years prior to her death, that he visited her repeatedly and advised her regarding her financial affairs. It was he who called on Judge Dempsey and made the arrangements to have him act as her lawyer. He had conferred with her before the lawyers did and had drawn up a memorandum of what she desired. The actual preparation of the will was by Judge Dempsey. It is argued, in view of the confidential relation existing between Mrs. Gleason and Father Moore, and the acts on his part with respect to the preparation and drafting of the will, that from such relation and
At the conclusion of the charge of the court a colloquy took place as follows:
“Mr. Hicks: Your Honor has wholly failed to charge anything in reference to confidential relations in this case and we think and ask that the court should charge on that matter because it is an all-important one. In many States it is held that the mere fact of the relation existing and a benefit to the parties sustaining that relation in itself raises a presumption of undue influence. ,
' “The Court : Inasmuch as I do not hold it goes that far, I do not see why I should charge it.
“Mr. Hicks : It holds this; that it is an important matter affecting the question, and even sufficient in some instances to determine, standing alone. Now whether it goes that far — whether Your Honor wants to charge that it goes that far or only that it raises a suspicion or tends to show —
“Tpie Court: You will take exception, Mr. Hicks.
“Mr. Dempsey: Note my general exception, too.
“Mr. Hicks: Note an exception to the refusal of the court to charge on the confidential relation sustained by Father Moore to the testatrix after counsel for plaintiffs have called his attention to the omission.”
In the further progress of the trial there is no such change in the burden of proof and law as to require the court in its charge to the jury to instruct them that in respect to any particular issue or items of evidence the burden of proof is thrown back from the contestants to .the proponents.
While it is argued here that the effect of a charge as now contended for does not affect the burden of proof, the effect of such a charge would be to require the court to instruct contradictory presumptions in respect to the same subject-matter at the same time. Hutson v. Hartley, 72 Ohio St., 262, 268.
The so-called presumption of undue influence arising out of confidential relations is neither a conclusive presumption nor a presumption of law. It is a mere inference of fact which the jury may draw,
“While the jury may find undue influence as a fact from the fact that a beneficiary in confidential relations with testator drew the will, the court must not charge the jury as a matter of law so to find.” Page on Wills, Section 414, page 492.
See also Hall, etc., v. Hall, 78 Ohio St., 415, at page 416, where the supreme court held that the trial
It is for the jury to determine what inferences of fact are properly to be drawn from the evidence adduced at the trial.
The court would have been right in refusing to charge on what contestants now claim to be the law, even if the matter had been brought properly to its attention.
For the error in the admission of the evidence as above set forth, the judgment will be reversed and the cause remanded for a new trial.
Judgment reversed and cause remanded.