
    Frank Gick, as Executor, etc., of Rosina Stumpf Deceased, Appellant, v. Frank Stumpf, Respondent.
    Third Department,
    May 6, 1908.
    Grift — savings bank deposit in trust for another — evidence — burden on trustee claiming gift — privileged communications between attorney and client — waiver.
    A son who receives money drawn by his mother from her savings bank account and deposits it in another bank to the credit of himself in trust for his mother occupies a fiduciary relation and, when asserting title under an alleged gift inter vims from his mother, is under the burden of showing that the gift was fair and fully comprehended by the donor and was her free and voluntary act without restraint or coercion.
    In an action by the representative of the mother to recover the deposit from the alleged donee, the testimony of the donor’s attorney at law who drew and witnessed the instrument of gift as to occurrences at the time of execution and to prior communications made by the deceased relative to the subject-matter of the instrument, not made in the presence of a third party, is inadmissible over the plaintiff’s objection.
    The deceased by requesting the attorney to witness the instrument did not waive the privilege of her communications. A waiver thereof to be effectual must be made upon trial, except in the case of an attorney who is a subscribing witness to a will.
    Appeal by the plaintiff, Frank Gick, as executor, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 19th day of June, 1907, upon the decision of the court, rendered after a trial at the Saratoga Special Term, dismissing the complaint upon the merits.'
    
      Walter A. Chambers and Daniel J. Finn, for the appellant.
    
      George R. Salisbury and George B. Lawrence, for the respondent.
   Cochrane, J.:

Prior to August 1, 1899, Bosina Stumpf, mother of the defendant, was the owner of $1,200 which was on deposit in the First National Bank of Glens Falls. On the latter day the defendant having drawn said money from said bank on his mother’s check payable to his order deposited the same in the Albany Savings Bank to the credit of himself in trust for his mother. Such deposit remained until July 6, 1900, when it was changed by the defendant withdrawing the amount thereof with accumulated interest and immediately redepositing the same/ in his own name individually. At that time the decedent was an aged lady in a somewhat enfeebled physical condition, and resided with the defendant, who was one of several children.

Thereafter the said Rosina Stumpf executed a last will and testament naming therein the plaintiff as the executor thereof. The purpose of this action by the latter is to recover the said money which constitutes practically all of the estate. The defendant claims title thereto by gift from his mother.

The facts stated clearly established a fiduciary relationship between the defendant and his mother. By the form of deposit which he made in the Albany bank when he first deposited the money therein defendant expressly created himself a trustee for her benefit. The absolute control of the deposit depended upon himself alone. The question for determination before the learned court below, therefore, was whether there had been a valid gift by a cestui que trust to her trustee of the identical fund which was the subject of the trust.

This trust relationship was such as to make applicable the rule subjecting the defendant to the burden of proving that the alleged gift was fair and fully comprehended by his mother and that it was her free and voluntary act without restraint or coercion. (Cowee v. Cornell, 75 N. Y. 100; Fisher v. Bishop, 108 id. 25; Barnard v. Gantz, 140 id. 249; Matter of Smith, 95 id. 522.) In the case last cited it was said that such rule seems to be confined to contracts and gifts inter vivos and does not apply in all its strictness at least to gifts by will.

The evidence of the alleged gift consisted almost entirely of an instrument executed nine months thereafter by the deceased, in which she acknowledged the prior gift, and sought to ratify and confirm the same.

To meet the burden of proof that said instrument'was voluntarily executed and accurately comprehended by the deceased, the defendant called as a witness the attorney who drew the same and who witnessed the execution thereof. That he was acting for the deceased in the preparation and execution of the instrument, and that the relationship of attorney and client existed between them, is unquestioned. Indeed, from his testimony, no question could arise as to such relationship. He testified not merely to occurrences at the time of the execution of the instrument, but to communications made prior thereto by the deceased relative to the subject-matter of the instrument. The testimony thus given clearly cannot be said to have been harmless. The purport and tendency thereof was to demonstrate the understanding and mental equilibrium and intellectual grasp of the deceased, and her comprehension of the situation and of contingencies which might arise and against which she was endeavoring to guard. The instrument considered by itself did not afford the same view of her mental acumen.

This testimony was duly objected to as inadmissible because it disclosed confidential communications between an attorney and client. In my opinion the objection should have been sustained. (Code Civ. Proc. § 835; Matter of Coleman, 111 N. Y. 220; Rogers v. Lyon, 64 Barb. 373; Bank of Utica v. Mersereau, 3 Barb. Ch. 528, 596.) The communications were not made by two or more persons in consultation with their attorney for their mutual benefit, or between a client and attorney in the presence of a third party, but under the seal of professional confidence, and were entitled to protection.

¡Nor did the deceased break or waive this seal of confidence by requesting the attorney to become a subscribing witness to the instrument. It was not such an instrument as the law required should be witnessed. The waiver to be effectual must be made upon the trial except in the case of an attorney who is a subscribing witness to a will. (Code Civ. Proc. § 836.)

The judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.  