| NY | Apr 23, 1940
On the trial before the Surrogate of the issues relating to testamentary capacity and undue influence *46 in this proceeding to probate a will, the proponent produced as a witness an attorney who neither directly nor indirectly took part in the preparation or execution of the instrument offered for probate. Nevertheless, he was permitted, over objection, to give testimony on the part of the proponent as to a conversation relating to deceased's testamentary intentions which he had held privately with the deceased in a professional capacity three days previous to the time the instrument, offered for probate, was signed.
This was a privileged communication under section 353 of the Civil Practice Act, and the witness clearly was not one to whom the exception provided in section 354 of the Civil Practice Act applies. Error in receiving this proof was material. Even though the deceased had expressed the same testamentary intention in the presence of the same witness and others just previous to the private interview, the very fact that he repeated it in the more intimate private conference with his attorney had an important bearing on the sharply-contested issues, particularly that of undue influence. It is on this error that our reversal rests.
The order of the Appellate Division and the decree of the Surrogate's Court should be reversed and a new trial granted, with costs in all courts to the appellants to abide the event.
LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, SEARS, LEWIS and CONWAY, JJ., concur.
Ordered accordingly. *47