40 Minn. 371 | Minn. | 1889
But two questions are presented for our consideration upon this appeal: First. Did the trial court err in admitting certain testimony of the witness Laing, objected to by the contestant on the ground that it was incompetent and inadmissible, by reason of Gen. St.
The principal question in this case seems to have been as to the sanity of the deceased when he executed the instrument offered for probate, and alleged by the proponents to be his last will and testament. The witness Laing was an attorney at law, and had prepared the will in question. He had also served the decedent in other matters as his legal adviser. In this way he had acquired some knowledge of the mental condition of the deceased, and was more or less qualified to express an opinion as to his sanity. Under the rule laid down in the case of Pinney's Will, 27 Minn. 280, (6 N. W. Rep. 791, and 7 N. W. Rep. 144,) that a non-expert must first disclose the facts upon which his opinion may be predicated before he can be allowed to express one upon the question of soundness of mind, the witness stated his professional connection with the testator for quite a period of time before his death, including the day upon which the will was drafted and signed, and also testified that he had many conversations with him, always upon legal business. He was then permitted, the contestant objecting, to narrate the details of the business which was transacted, what the deceased counselled the witness about, what he said, and what advice and counsel he was given by the attorney. The full particulars of one or two interviews, in no manner connected with the making of the will, were related to the jury. These communications between the decedent and his attorney were privileged at common law as well as by statute, the object of the rule being the protection of the client and his estate. And while many text-writers assert emphatically that the seal of secrecy remains forever, unless removed by the party himself, there is an abundance of authority for saying that, upon the decease of the only person who could, in his lifetime, exercise the privilege of waiver, the rule should not be so perverted by a strict adherence to it as to render it inconsistent with its object, and thus bring it into direct conflict with the reason upon which it is founded. Russell v. Jackson, 15 Jur. 1117; Blackburn v. Crawfords, 3 Wall. 175; Groll v. Tower, 85 Mo. 249. The object of
At common law the legal presumption is that every man is of sound mind, and the burden of proof that he is not rests upon the party asserting the existence of an unnatural condition of the mind of the person whose act or condition is questioned; and the presumption that every one is considered and treated as compos mentis, in absence of proof to the contrary, prevails in this, state, unless it is manifest from our statutes (Gen. St. 1878, c. 47) that a different rule has been prescribed when the question of the exercise of testamentary capacity is involved.
We have three sections of said chapter 47 which specify the proof required when a will is offered for probate. In section 15 the method is laid down, in case there is no contest. The court may, in its discretion, dispense with all but one of the subscribing witnesses. One, however, must testify to the execution of the will and the sanity of the testator, and this is imperative. Section 16 authorizes the court, in its discretion, to permit proof of execution of the will and the sanity of the decedent, by other witnesses, in case none of the subscribing witnesses reside in the state; but there must be proof of the sanity
It may be said, in conclusion, that, if the presumption of sanity exists at any time during the proceedings, it is not at the outset, and that it would be surprisingly incongruous to conclude that such a presumption should not have its legitimate effect in the first instance, as well as in the final result. We may also add that our views upon this question do not necessarily change the convenient and perhaps prevailing
Judgment reversed.