102 Ga. 490 | Ga. | 1897
Complaint is made that, on the trial of the present case, Mr. King was introduced as a witness in behalf of the propounder of the paper offered for probate, and was allowed, over objection, to testify concerning its execution by Mrs. Flynn, as to her mental capacity to make a will, and as to. what passed between them when he read over to her and explained the meaning of the instrument he had prepared for her to sign. It is contended by counsel for the plaintiffs in error, that as Mr. King sustained towards the testatrix the attitude of attorney
In Freeman v. Brewster, 93 Ga. 653, the act of 1887 was construed to mean what it in terms says, viz., that an attorney is incompetent to testify “for or against his client"-, and it was accordingly said the statute had no application to a case in which the client himself was not before the court as a party at interest. To the present controversy, Mrs. Flynn, the “client,” is neither a party plaintiff nor a party defendant. “ In no sense of the word can the testatrix be called the ‘other party,’ in opposition to either the propounder or the caveators,” in such a proceeding. Brown v. Carroll, 36 Ga. 570. Nor can it be said that, in a controversy of this nature, the attorney drafting the will is called upon to testify “for or against” the interests of his client’s estate. On the contrary, the proceeding is simply one in which .certain persons claiming under, and not adversely to, the “client” seek to have an investigation made into the circumstances attending the execution of the instrument offered for probate, in order that their rights in the premises may, as against the persons represented by the propounder, be finally adjudicated. It is a proceeding provided for and sanctioned by law, in which it is necessarily contemplated that the whole truth shall be elicited from every reliable source, to the end that full and complete justice may be done, not only to the living, but to the dead.
Obviously, therefore, there is no merit in the contention of counsel for plaintiffs in error, that Mr. Spalding was an incompetent witness concerning anything that occurred at the interview he had with Mrs. Flynn on the morning of the day she executed her will, even were the plaintiffs in error at liberty to urge this objection. As to the interview with Mrs. Flynn, some
The practice of attorneys attesting deeds, wills, and like instruments, which they have drafted in accordance with instructions received of their clients, to be executed by the latter, has certainly long prevailed, both in England and in this country. It is equally certain that at common law attorneys have always been considered competent so to do. Doe v. Andrews, 2 Cowp. 846. And accordingly it was held by the Supreme Court of South Carolina, in a somewhat recent case, that: “ An attorney
We quite agree with the counsel in this construction of the act of 1887. What may or may not have been the effect of prior statutes is now immaterial. Granting that none of them were “simply declaratory of the common-law doctrine,” it by no means follows that, after numerous statutory experiments and blunders, we have not finally, by our latest enactment, returned to the sound policy upon which that doctrine was based. Nor do we understand that the decisions above referred to, with the single exception of those construing the New York statute, proceed upon the idea that a client, by procuring the signature of his attorney as an attesting wdtness, “waives” the right to object to “privileged communications” being thereafter offered in evidence in a controversy respecting the transaction to which the client is a party. On the contrary, the real question at issue was, whether communications made under such circumstances were “privileged”—not whether, conceding them to be so, the client had “waived” all right to protection in regard thereto. In other words, it has been held, and we think correctly, that a client can not truthfully and honestly claim that he understood such communications to have been received by his attorney professionally, and .under the seal of confidence, when the services of the latter as an attesting witness were avowedly rendered and accepted with a view to enabling him to testify in the event he might thereafter be called upon to do so. This certainly is the understanding sought to be conveyed by the extracts we have quoted from Greenleaf and Story.
By no means is a client permitted, under our statute, to waive the protection it affords. ' The act of 1887 is clear upon
While a client has no power to waive his right to exclude-this sort of incompetent testimony, still the law leaves it largely to him to render information which he imparts competent or incompetent as evidence to be used “for or against” him. For instance, a person may decline altogether the services of an attorney, or may employ him to attend to various different matters. A client may likewise confine his attorney’s professional zeal to one branch only of a single subject-matter, or to-a specified act in connection with a particular transaction. Evidently, in the present instance, Mrs. Flynn did not contemplate that her counselor should belong absolutely to her, body and soul, from the moment he entered her house up-to his departure therefrom; nor could she have understood, under the circumstances, that everything he might hear or see while there would be forever locked under the sacred seal of confidence. On the contrary, she accepted his services as an attesting witness, doubtless under the belief and with the desire that, if ever called upon after her death, he would conscientiously and truthfully testify to everything that then and there occurred in connection with the execution of her will. That he has undertaken to do so involves no breach of propriety even. Certainly, the policy our statute was intended .to subserve has not been defeated. It follows that if Mr. King-was competent to testify to such matters as could properly be-elicited from either of the other attesting witnesses, his signature to the instrument has the same legal effect as would that, of a person whose competency to attest a will was beyond question. This being so, the paper offered in evidence could not be attacked on the ground of his alleged incompetency to-
Judgment affirmed.