120 N.Y.S. 266 | N.Y. App. Div. | 1909
This appeal is taken from a decree of the Surrogate’s Court of Kings county which admitted to probate as the last will and testament of John Cunnion a paper dated September 9, 1907. The death of Cunnion, the execution- of the paper by him with all the formalities required by the law of wills, his testamentary capacity, and. his freedom from undue influence, were all undisputed. Probate was resisted. upon the ground that the testator had executed another and later will by which this was revoked. It was found by the Surrogate’s Court that on the 6th day of June, 1908, he did execute another will with the requisite formalities, and that he was entirely competent to execute the same. This will was delivered to the said Cunnion, and although diligent search was made for it after his death, it has not been found. If the later will revoked the former one, although it was destroyed by the testator in his lifetime, the former will would not be thereby revived since it was never duly republished. (2 B. S. 66, § 53.) The execution of a later will does not necessarily import the revocation of an earlier one. (1 Jarm. Wills [Bigelow’s 6th ed.], 171.) It was incumbent, therefore, upon the contestant to prove the contents of the second will, and to show that either it contained express words of revocation or that "there was an implied revocation because its provisions were so inconsistent with the former will, that they could not exist together. (Id. 169.)
The correctness of the ruling of the surrogate with regard to evidence tending to prove the contents of the later will presents the only question in this case. The contestant called as a witness Francis L.-Maher, who testified as follows : “I am an attorney and counsellor-at-law. * * * I drew the will in this. proceeding, * * * the one offered for probate; I drew that. I drew a will before that and one after that. The one I drew after that was on the 6th day of June of this year. I was present at the time of the
The question- remains whether the court was in error in excluding the paper referred to as Exhibit 1. for identification. It had been proved without objection that the paper offered in evidence was a copy of the paper executed on June sixth. It is urged that if this paper is received in evidence the attorney does not disclose anything, since the paper speaks for itself. It seems to us that this contention is not well made. The paper must be considered in connection with the attorney’s relation to it. If the attorney had kept no copy of the paper'of June sixth he could not disclose his recollection of the contents of it because that- involved confidential communications from .his client. Can a different rule be invoked because he wrote down on a separate sheet of paper the contents of that communication instead of trusting to his memory ? The paper is in spirit and effect the communication from the client to the attorney. The rule might be quite different if it was a paper which some one else had prepared, but which had been given to the attorney by his client. (Schattman v. American Credit Indemnity Co., 34 App. Div. 392, 398; Jones v. Reilly, 174 N. Y. 97.) The contents of that paper would not have been the embodiment in written form of the communication from the client to the attorney.. This paper is. “ The test is whether the document first came into existence as a part of a communication to the attorney.” (4 Wigmore Ev. 3228, § 2307.) It may be unfortunate if a paper which the testator never intended to operate as a disposition of his property after his death should be given that .effect. But we see no way in which the Surrogate’s Court could have reached a different con
The decree of the Surrogate’s Court of Kings county should be affirmed, with costs.
Hiesohbeeg, P. J., Woodward, Eioh and Miller, JJ., concurred. .
Decree of the Surrogate’s Court of Kings county affirmed, with costs. '