125 Va. 126 | Va. | 1919
delivered the opinion of the court.
The appellants deny that this paper thus admitted to probate is the true last will and testament, because they allege that on a date subsequent to its execution — that is, on the 15th day of March, 1917, about thirty days prior to his death — Warden made and executed another will which in express terms revoked the former will and devised all of his property to a charitable institution in Norfolk, spoken of as the “Boys’ Home.” They offered to prove these facts by Ivor A. Page and B. J. B. Page, who were the attorneys who
The question, then, which is presented-, is whether, under the facts stated, the appellants were entitled to the testimony of these attorneys as to the contents of the second will, although it had been destroyed, as tending to-prove that the first will, here in controversy, had been thereby revoked in express language and by necessary implication.
While this precise question has not arisen frequently, there have been many cases which we think establish be-* yond peradventure the doctrines which control.
In a note, in which the authorities are collected, to In re Young, 17 L. R. A. (N. S.) 108 (14 Ann. Cas. 601, 126 Am. St. Rep. 843, 33 Utah 382, 94 Pac. 731), this statement is made: “It may be laid down as a general rule of law, gathered from all the authorities, that unless provided otherwise by statute, communications by a client to the attorney who drafted his will, in respect to that document, and all transactions occurring between them leading up to its execution, are not, after the client’s death, within the protection of the rule as to privileged communications, in a suit between the testator’s devisees and heirs at law, or other parties who all claim under him. The reason for such an exception to the general rule excluding confidential professional communications is that the rule is designed for the protection of the client, and it cannot be said to be for the interest of a testator, in a controversy between parties all of whom claim under him, to have those declarations and transactions excluded which are necessary to the proper fulfillment of his will.”
The reason for excluding such communications, stated succinctly, is that it is essential to the administration of justice that clients should feel free to consult their legal advisers without any fear that their disclosures will be thereafter revealed to their detriment. As a matter of public policy, this rule should be rigidly enforced in order that men may secure legal advice, after frank disclosures to their counsel without which they would be unable to defend themselves from threatened wrong. After the death of the client, however, it has been held that the privilege may be waived when the character and reputation of the deceased are not involved, by his executor or administrator, or in
In the leading English case of Russell v. Jackson, 9 Hare 387, 8 Eng. L. & Eq. 89, 68 Eng. R. 558, the question was whether an attorney could testify that the residuum of the estate was devised upon a secret trust not expressed in the will. This witness stated that the general purport and effect of his instructions for preparing the will were, that it was the testator’s intention to leave the property for the purpose of establishing a school for the education of children in the doctrine of socialism, and so far as the witness recollected according to the principles of Robert Owen; and that these instructions contained the scheme on which the testator intended that the proposed school should be conducted. It was held that the witness could be compelled to disclose these facts upon the ground that the reason of the rule which protects from disclosure communications made in professional confidence, applies in cases of conflict between the client and those claiming under him, with third persons, but that these reasons do not apply in cases of testamentary dispositions by the client as between different parties all of whom claim under him. Among other things, the vice-chancellor (Turner) said: "When we pass from the case of conflict between the rights and interests of the client and parties claiming under him, and those of third persons, to the case of testamentary disposition by the client, do the same reasons apply? The disclosure in such cases can affect no right or interest of the client. The apprehension of it can present no impediment to the full statement of his case to his solicitor unless, indeed, he is contemplating an illegal disposition, a case to which I shall presently refer; and the disclosure when made can expose the court to no greater, difficulty than presents itself in all cases where the courts have to ascertain the views and intentions of parties, or the objects and purposes for which dispositions have been
The Supreme Court of the United States, in the case of Glover v. Patten, 165 U. S. 406, 17 Sup. Ct. 416, 41 L. Ed. 767, thus expresses the rule: “Whatever view be taken of the facts, we are of opinion that, in a suit between the de-visees under a will, statements made by the deceased to counsel respecting the execution of the will, or other similar document, are not privileged. While such communications might be privileged, if offered by third persons to establish claims against an estate, they are not within the reason of the rule requiring their exclusion, when the contest is between the heirs or next of kin.” In that case the attorney was permitted to testify as to a written agreement and communications with reference thereto as aiding in the construction of a will previously executed.
In Blackburn v. Crawford, 70 U. S. (3 Wall.) 193, 18 L. Ed. 193, on a question of marriage and legitimacy, an attorney who drew the will for the alleged husband, in which the children of the connection set up as wedlock were described as the natural children of the testator, it was held that the attorney might testify as to what was said by the testator about the character of the children and his relations to their mother, in interviews with the testator preceding and in connection with the preparation of the will.
In Holyoke v. Holyoke, 110 Me. 469, 87 Atl. 40, this rule was applied in a case involving the probate of a foreign will, and an attorney was permitted to testify as to the true domicile of the testator which he learned in his professional capacity from the admission of the testator, the court stating that the controversy was not one which affects the estate as such, but rather affects the manner of its administration and distribution.
In Middletown Trust Co. v. Crowell, 89 Conn. 290, 93 Atl. 785, there was a suit by an administrator for the benefit of the intestate’s grandchildren to set aside a transfer of property made by the intestate to a son. It was held that as both the son and the grandchildren represented by the administrator claimed under the intestate, the one by succession and the other by the transfer, neither could claim the privilege with respect to the intestate’s communications to her attorney when the instrument by which the transfer
A recent California case, Smith v. Smith, 173 Gal. 732, 161 Pac. 495, applies the same doctrine as to knowledge acquired by an attorney who was the draftsman of the deeds which were involved in that case.
In re Wear’s Will, 131 App. Div. 875, 116 N. Y. Supp. 304, is strikingly like this case. There the testator had executed a will, dated June 18, 1900, which was drawn by his attorney, who became one of the subscribing witnesses. In September, 1904, the decedent requested this attorney to draw another will which disposed of all of the estate and contained a revocation clause. The new will was duly executed and the attorney who witnessed the previous will also witnessed the later one. The will of the earlier date, June 18, 1900, was offered for probate and the will made in 1904 was not found after the testator’s death, so that the presumption arose that this second will was destroyed with intent to revoke it.' We quote from the opinion: “The objection urged on this appeal from the decree of the surrogate refusing probate to the first will is that the proof offered and received of the execution of the second will is inadequate. The appellant contends that the proof must be of the character required by sections 2621 and 1865 of the Code of Civil Procedure, entitling a lost will to probate. The requirement of this section is that the provisions of such last will must be established ‘by at least two credible witnesses, a correct copy or draft being equivalent to one witness.’ We are of the opinion that this contention cannot be sustained. It is one thing to admit to probate a will disposing of a man’s-estate where the will cannot be found, and quite another thing to merely establish that a second
In re Cunnion’s Will, 135 App. Div. 864, 120 N. Y. Supp. 266, is relied upon for a contrary view. Upon appeal, this case is reported as In re Cunnion, 201 N. Y. 123, 94 N. E. 648, Ann. Cas. 1912A, 835. The appellate court there affirmed the judgmént of the lower court, basing its judgment, however, upon statutes of New York, but expressly
We cannot distinguish this case from the general line of cases to which we have referred, and it appearing that this is a testamentary contest between the heirs at law on the one side, claiming that the decedent died intestate, and the devisee, claiming that the paper offered is the true last will and testament of the decedent, we conclude that the privilege does not exist. The question is whether the paper offered is the true last will and testament. If it has been revoked, it is hot, and if the decedent thereafter executed a second will expressly revoking the previous will, there is no reason to infer that he then intended the fact of such revocation as a confidential communication to be withheld after his death. Indeed, it 4s manifest that by requesting one of the attorneys to witness it he at that ime intended him to testify with reference thereto after his death. The learned judge of the trial court expressed grave doubt as to the soundness of his ruling. For the reasons here indicated, we think that the evidence of both of the attorneys as to the contents of the second will should have been admitted for the consideration of the jury.
The verdict and the judgment admitting the paper dated December 27, 1916, to probate as the true last will and testament of the decedent will, therefore,.be set aside, and the case remanded for a new trial.
Reversed.