
    In the Matter of Proving the Will of Henry Gagan, Deceased.
    
      (Surrogate's Court, Orange County,
    
    
      Filed June 8, 1892.)
    
    Will—Attorney who is subscribinq witness competent to prove.
    An attorney who was a subscribing witness to a will is a competent, witness to prove its preparation and execution. The testator by asking-his attorney to become a subscribing witness waives the pledge of secrecy imposed by the statute and dissolves the confidential relation existing between them.
    
      Proof of will.
    
      Howard Thornton, for ex’rs; E. A. Brewster, Jr., for Henry Gagan, Jr., contestant; J. L. Strahan, special guardian of minors contestants.
   Coleman, S.

—The objection to the testimony of the witness-Thornton is not well taken.

This testimony is objected to, first, because the witness is named in the will as an executor and, not having renounced such appointment, is an interested party within the meaning of § 829 of the Code. Loder v. Whelpley, 111 N. Y., 239; 19 St. Rep., 631, is cited as authority in support of this claim. That case only decides that an executor, who is also a legatee, may release his legacy and then be a competent witness in probate proceedings although he has not renounced his appointment; following Matter of Wilson, 103 N. Y., 374; 3 St. Rep., 613, which originated in this court.

This testimony is also objected to because it discloses communiactions made by the deceased to the witness, who was his attorney in the course of professional employment. Code Civ. Pro., § 835. In the Matter of Coleman, 111 N. Y., 220; 19 St. Rep., 501, it was held that the testator waived, as he might do under § 836, the pledge of secrecy imposed by this statute at the time he requested his lawyer to become a witness to the will. The legislature however afterwards in 1891, by an amendment to § 836, provided that the waiver must be made on the trial or examination. This will was executed January 29, 1892, and the testator died February 21, 1892. The proceedings for the probate of the will were commenced April 14,1892, and the witness Thornton was examined therein May 26, 1892. The legislature by another amendment to § 836, which took effect May 12, 1892, provided that “ nothing herein contained shall be construed to disqualify an attorney on the probate of a will heretofore executed * * * from becoming a witness as to its preparation and execution in case such attorney is one of the subscribing witnesses.” So that the admission of the testimony of this witness was by legislative sanction : and also properly, independently of the statute for I think the statute was declaratory of the law as it then stood.

I am not aware that it had been so declared in the higher courts, but in this court it has been held, since the amendment of 1891, that the testator, by asking his attorney to become a witness to his will, not only waived the pledge of secrecy imposed by the statute, but thereby removed and dissolved the confidential relation of attorney and client existing between them so far as the execution of the will was concerned. This view of the law is a fair conclusion to be drawn from the argument of the court in the Matter of Coleman, supra, notwithstanding the statement there made that, except for the waiving having been made, the testimony would not have been admissible. See, also, Rousseau v. Bleau, 131 N. Y., 177, 183; 42 St. Rep., 871.

If this is a correct view of the law, then it is not important whether the amendment of 1892 is unconstitutional as urged, on behalf of the contestants, because of interfering with vested rights. However, I am of the opinion that this amendment is not open to this objection. This doctrine does not apply to remedial statutes, which may be of a retrospective nature, provided they do not impair contracts or disturb absolute vested rights. 1 Kent Com., 455; Pot. on Stat., 167. The right, if any, of the contestants to object to the testimony under consideration depends upon a statute, and such right was lost by the passage of the amendment, which amounted to a repeal of statute under which they claim the right. Miller’s Case, 1 W. Bl., 451; Rex v. Justices of the Peace for the City of London, 3 Burr., 1456; 12 Moore, 357; Maggs v. Hunt, 4 Bing., 212.

Will admitted to probate.  