
    Will of Cramer: First Wisconsin Trust Company, Executor, Appellant, vs. Chakouras, Respondent.
    
      March 14
    
    April 8, 1924.
    
    
      Wills: Ademption of legacies: Between relatives: Presumption: Evidence: Declarations of testator: Res gestee: Attorney for testatrix as competent witness.
    
    1. In case of a gift to a child after a will is executed, it is presumed that the gift, if in kind, is in ademption of the legacy-in the will in the absence of any explanatory circumstances to the contrary; but such presumption does not apply in case of a gift to strangers to the blood, p. 528.
    2. On an executor’s petition to have a bequest adjudged satisfied and paid by reason of a gift to the legatee by the testatrix after the execution of the will, the executor had the burden of showing that the gift to the legatee was to adeem the legacy. ' p. 528.
    3. On such a petition, testimony as to the facts surrounding the making of the gift, including anything testatrix said or did at such time, is admissible, as a part of the res gestee, to show intent; but declarations made eighteen months after the gift were incompetent, p. 528.
    4. Under sec. 4076, Stats., relating to communications between attorney and client, the attorney was incompetent to testify as to the reasons given him by the testatrix for the proposed changes in her will. p. 529.
    Appeal from an order and a judgment of the county-court of Milwaukee county: John C. Karel, Judge.
    
      Affirmed.
    
    This is an appeal from an order and a judgment denying the petition of the appellant that the bequest to Gustave Charles Chakouras, made by will of the decedent, be adjudged satisfied and paid, and ad judging that said Chakouras is entitled to receive and recover said legacy.
    For the appellant there was a brief by Hoyt, Bender •& McIntyre of Milwaukee, and oral argument by Frank M. Hoyt.
    
    For the respondent there was a brief by Schmits, Wild & Gross of Milwaukee, and oral argument by Robert L. Wild.
    
   Crownhart, J.

The decedent, Harriet L. Cramer, by her last will left a very large estate to various persons and charities, and among other bequests she provided a gift to “my employee, known as Charles Chakouras, of city of Milwaukee, the sum of two thousand ($2,000) dollars.” The will was executed on the 30th of August, 1918. The testatrix died on February 7, 1922. Chakouras was not related to the testatrix otherwise than as - an employee. • He left the employment .of the testatrix on the 24th of July, 1920. On that day the testatrix paid Chakouras $25 in full of services, and gave him as a gift the further sum of $2,000, taking from him a receipt reading as follows:

“I hereby acknowledge that Harriet L. Cramer has.paid me in full, for all services rendered to her in her place of business, the Wisconsin Printing Company, the Harriet L. Cramer and John F. Cramer Building, and in all other places where I have rendered services to her, the sum of $25 in full of all demands of every name and nature which I now have and ever have had against her.
“With grateful heart I hereby further- acknowledge' a gift from Harriet L. Cramer of $2,000 to assist me in establishing myself in business.
“Milwaukee, Wis, July 24, 1920.
“(Signed) Gustave Charles Chakouras. (Seal.) “Witnesses:
“John W. Campsie.
“Minnie E. Stirn.
“State of Wisconsin, Milwaukee, Wis.
“Subscribed and sworn to before me this 24th day of July, 1920. John Buetemeister,
“(Notarial Seal.) Notary Public.”

It is the contention of the appellant that the $2,000 gift to Cltakouras in 1920 was intended to be in satisfaction and discharge of the legacy named in the will. Testimony was taken on the hearing as to the surrounding circumstances at the time of the execution of such receipt. From such testimony it appears that Chakouras had decided to go into business for himself and wished Mrs. Cramer to assist him in setting up in business. She offered to give him the $2,000, but he wished to have more. She said that “the boy wanted to go in business and she had given him $2,000 for the present to get started; that he wanted more and she thought she could not do it at the present time, but might give him some more later on.”

This statement is entirely consistent with the provision of the will. At the time the statement was made the will provided for a gift to Chakouras of $2,000. Mrs, Cramer said nothing about this provision in her will, and from the. statement-the inference might properly .be drawn that _ she, expected to make the gift in her will in addition, to the $2,000 that she had presently made.

Mr. Frank Hoyt, an attorney, drew the will of Mrs. Cramer. A short time before her death he was called to her house to make some changes in the- will. He testified over the objection of the respondent that Mrs. Cramer was in bed; that he went over the proposed changes in the .-will, and that among others she wished to revoke the legacy.to Chakouras, and gave him instructions .to that effect. She said: “I want- that changed, and that bequest stricken out, because I have paid Charles Chakouras his money.” -Mr. Hoyt made a memorandum of the changes to be made, which he took to his office, after notifying Mrs. Cramer to call him when she was ready to execute the-codicil. Later he called upon her with the codicil to the will for execution and found her in a semi-comatose condition, from which she never recovered, and the changes were never made.

The objection to this testimony on the part-of the appellant was on two grounds: first, that the testimony was incompetent to show the intention of the testator at the .time of the pajunent of the $2,000 to Chakouras, and second, that the witness was incompetent to testify, on the ground that it - was in violation of the statute prohibiting an attorney from testifying to communications from his client. In support of the competency of such testimony appellant cites Phillips v. Chase, 201 Mass. 444, 87 N. E. 755; Kern v. Kern, 154 Ind. 29, 55 N. E. 1004; Downing’s Will, 118 Wis. 581, 95 N. W. 876.

In case of a gift to a child after a will is executed, it is presumed the gift, if in kind, is in ademption of the legacy-in the will in the absence of any explanatory circumstances to thé contrary. 40 Cyc. 1915; 28 Ruling Case Law, 349. But such presumption does not apply in case of a gift to strangers to the blood. 28 Ruling Case Law, 350.

Hence, in this case the burden was on the plaintiff to show that the gift to Chakouras was to adeem the legacy in the will, if such was the fact. The written receipt for the gift speaks from the day it was made. The facts surrounding the making of the gift were permissible as part of the res gestee. Anything the testatrix said or did at the time of making the gift was competent to show intent, but what she said more than eighteen months thereafter was wholly incompetent for that purpose. Brunn v. Schuett, 59 Wis. 260, 271, 18 N. W. 260; Hilton v. Rahr, 161 Wis. 619, 623, 155 N. W. 116, and cases there cited.

We held in Estate of Hoehl, 181 Wis. 190, 193 N. W. 514, that an attorney might testify to communications made to him by a client, where the communications were of such a nature that they were intended to be made public, or which were not confidential in their nature. We think the rule does not go so far as to allow an attorney to testify to communications made to-him with reference to the execution of a will or modification thereof. The communications might be very confidential, while the formal document would not convey any such confidence. The reasons of a testatrix why she should make changes in her will is one thing, and the formal changes in the will might be quite another thing. The reasons for the changes the testatrix might convey to her attorney in confidence, but might desire to withhold them from the public or from her heirs or legatees!

Sec. 4076, Stats.-* reads:

“An attorney or counselor at law shall not be allowed to disclose a communication made by his client to- him or. his advice given thereon in the course of his professional employment.”

It is not possible to stretch the exceptions to this statute to include communications to an attorney by a client for the purpose of making a will. The will itself might be revoked and never made public. The will might not necessarily contain the communication, although the communication might be necessary to the attorney for a full understanding of the proposed will. A person making a will often reposes in his attorney his most sacred confidences. They must not be made public under, the statute unless they are actually incorporated in the will and the attorney is a witness thereto. For a full discussion of the subject see Koeber v. Somers, 108 Wis. 497, 84 N. W. 991. We therefore hold that the attorney was incompetent to testify to the communications by his client.

By the Court.- — -The judgment of the county court is affirmed.

Vinje, C. J., dissents.  