118 Wis. 581 | Wis. | 1903
The important question presented is ’whether the 12th, 13th, 14th, and 15th findings of fact are
Upon such evidence, we are called upon to determine whether the written instrument in controversy was properly admitted to probate as the last will and testament of Thomas Downing, deceased. Unlike most written instruments, a will, in this state, must be established in court by proof, as prescribed by the statute, before it goes into effect. Sec. 3788, Stats. 1898; Jones v. Roberts, 96 Wis. 431, 432, 70 N. W. 685, 71 N. W. 883. Probate of a will is essential to the passing of title to property. Sec. 2294, Stats. 1898. The measure of proof to establish a will, in case of contest, is suggested by the requisite mental capacity to make a will as ad
“It is essential that the testator has sufficient capacity to comprehend perfectly the condition of his property, his relations to the persons who were or should or might have been .the objects of his bounty, and the scope and bearing of the provisions of his will. He must, in the language of the cases, have sufficient active memory to collect, in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive-at least their obvious relations to each other, and be able to form some rational judgment in relation to them.” Delafield v. Parrish, 25 N. Y. 9, 29, followed in Van Guysling v. Van Kuren, 35 N. Y. 70, 74.
That language has been repeatedly approved by this court. Holden v. Meadows, 31 Wis. 294; In re Blakely’s Will, 48 Wis. 300, 4 N. W. 337; In re Lewis’ Will, 51 Wis. 104, 105, 7 N. W. 829; McMaster v. Scriven, 85 Wis. 169, 170, 55 N. W. 149; In re Butler’s Will, 110 Wis. 70, 77, 78, 85 N. W. 678. Does the evidence show that the testator had such comprehension ? Did he have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and hold them in his mind' a sufficient length of time to perceive their obvious relations to each other, and form any rational judgment in relation to them ? The doctor said that Mr. Downing wanted to will his property to Mrs. Cashel and her family, and yet the will includes two half-sisters, biit leaves out the half-brother. He did name “Mae” for executrix, but there is not a word of evidence that he wanted to authorize the payment of debts and expenses without waiting for administration — much less, that he wanted to authorize the sale of all his personal property at private sale, and all his real estate at public sale, on twenty-one days’, notice, within a year. It seems to be conclusively established that neither the provisions of the will, nor the substance of those provisions, ever emanated from the mind
2. But it is claimed that Richmond was an incompetent witness by reason of the statute which declares that “an attorney or counselor at law shall not be allowed to disclose a communication made by bis client to him, or bis advice given thereon, in the course of bis professional employment.” Sec. 4076, Stats. 1898. This section is more narrow than the preceding section, precluding physicians from disclosing “any information . . . acquired in attending any patient.” This section simply precludes an attorney from disclosing “a communication made by his client to him, or bis advice given thereon, in the course of bis professional employment.” This language is too plain to require construction. It has recently been applied by this, court in a case where an attorney who bad received from bis client authority, as an agent, to enter into a contract with a third person, and bad acted thereon; and it was held that such attorney was not precluded by that section from testifying as to tbe giving of such authority, if it came in question. Koeber v. Somers, 108 Wis. 497, 503—511, 84 N. W. 991. Tbe distinction is there pointed out between such communications and advice which fall outside of tbe attorney’s professional employment, and transactions which come within tbe prohibitions of tbe section. It is there shown that by closing tbe mouth of tbe attorney as to
“We are unable to see how communications between an attorney and a person not his client, while conducting a business matter with such person for his client, whether he is acting professionally at the time or not, can be classed with those named in the statute. A communication made by a person to his attorney, - to be and in fact communicated by him to another, is not privileged, because, in the very nature of things, it is not confidential in character. The very purpose, thereof is to have the communication repeated to one who is under no obligation not to divulge it. That being the case, manifestly a reply to such a communication must be governed by the same rule, and so must, also, other communications between the attorney and the third person, in case of negotiations between the two.”
There is no better reason for excluding the'testimony of Richmond than there is for excluding the testimony of the attending physician under the previous section. And yet this court has held, in effect, that a subscribing witness to a will is necessarily expected to give testimony as to the execution of the same. Alberti v. N. T., L. E. & W. R. Co. 118 N. Y. 77, 23 N. E. 35; McMaster v. Scriven, 85 Wis. 162, 55 N. W. 149. The doctor appears to have been present with Mr. Downing, and necessarily heard and witnessed all that took place between Downing and Eichmond. But the question may be considerd on broader grounds. All the authorities, including the two recent adjudications from this court, agree that the section of the statute in question is nothing more than a re-enactment of the common law. Koeber v. Somers, 108
“The reasons of the rule which protects from disclosure communications made in professional confidence apply in cases of conflict between the client or those claiming under him, and third persons, but do not apply in cases of testamentary disposition by the client as between different parties, all of whom claim under him. The privilege does not belong to the executors as against the next of kin, but, following the legal interest, is subject to the trust, and incident to which the legal interest is subject.” Bussell v. Jaclcson, 9 Hare, 387.
That case was followed in Massachusetts, where it was expressly held:
“The attorney who draws a will will not be allowed, without the consent of the testator while living, to testify to communications made to him concerning the will, or to its contents; but, when the will is presented for probate after the testator’s death, the attorney may testify as to directions given to him by the testator, SO' that it may appear whether the instrument presented for probate is or is not the will of the alleged testator.” Doherty v. O’Callaghan, 157 Mass. 90, 93, 31 N. E. 726.
To the same effect, Scott v. Harris, 113 Ill. 447; Winters v. Winters, 102 Iowa, 53, 56, 71 N. W. 184; Layman’s Will, 40 Minn. 371, 42 N. W. 286; Coates v. Semper, 82 Minn. 460, 85 N. W. 217. In this last case it was held, under a statute substantially like ours:
“An attorney at law who draws a will, and attends the person executing the same, to give advice, is not prohibited, on account of his relations as such counsel, from testifying concerning the facts connected with such execution, in a contest thereon.”
The Iowa statute is quite similar to ours. In the case at bar the reasons for admitting Richmond’s testimony are much stronger than in any of the cases cited. There is no
“When the terms of a contract have been agreed upon between the parties, and an attorney is afterwards employed, as a scrivener merely, to reduce the contract to writing, and no inquiry is made of him as to its legal effect, communications made to him while thus engaged will not be regarded as privileged.”
We must hold that the testimony of Eichmond was properly admitted as evidence in the case.
By the Court. — The judgment of the circuit court is reversed, and the cause is remanded, with directions to reverse the order and judgment of the county court, and for further proceedings according to law.
On September 29, 1903, it was ordered that the taxable costs of both parties be paid out of the estate.