
    In the Matter of the Will of John McCarthy.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed December 30, 1889.)
    1. Wills—Probate—Evidence.
    Upon the contest of a will, on cross-examination, contestants’ counsel asked a layman of limited education whether lie thought the testator had mind sufficient at the time he was alleged to have executed the will to give to the draughtsman the specific directions contained in it with reference to the disposition of the property. Held, that such a question covered the whole is ue of testamentary capacity, and was not one upon, which such a witness could express an opinion.
    
      % Same—Code Civ. Pro., § 835.
    All the acts of a testator connected with the making and execution of a will, which tend to uphold and support the instrument may be proved by the person who assisted him in preparing the will, although at that time he was acting as legal adviser of the testator. Such matters are not prohibited by Code Civ. Pro., § 835.
    Appeal from a decree of the surrogate’s court of Ontario county, denying probate to the last will and testament of John McCarthy, who died on the 16th day of December, 1888; the instrument propounded as his last will and testament being dated on the 22d day of November, 1888. The will disposed of all the estate of the testator, which consisted of real and personal property. He left him surviving his widow, and one daughter, the latter his only heir-at-law. At the time of his death he was eighty-four years old. He bequeathed all his personal property to his widow, and devised his real estate to her and his nephews, making no provision whatever for his daughter. It is not disclosed in the case as to the value of his property, either real or personal, nor the situation in life of his daughter, who was married and living away from his family. His widow is eighty years of age. The probate of the will was resisted upon the ground, among others, that the decedent did not possess testamentary capacity. Upon that ground alone the surrogate based his decree.' The devisees other than the widow and the executor are the appellants.
    
      John A. Bean, for app’lt; B. T. Baclcenstose, for resp’ts.
   Barker, P. J.

The subscribing witnesses were Patrick Mulcahy and Patrick H. Mulcahy, father and son, who were both called and examined as witnesses on the hearing, and their evidence proved the formal execution of the will in compliance with all ihe requirements of the statute. One of them, Patrick H., was asked by the counsel for the proponents this question : “ What can you say as to the capacity of McCarthy to make a will ? ” which the witness answered by saying: “I couldn't say.” He •was then asked: “ What can you say as to whether he was of sound mind or not? ” To this he answered, “I don’t know; I don't know whether he understood what was said to him or not, but he seemed to answer all right; he answered the questions put to him all right; if he was asked to do anything he did it; Mr. McCarthy was not under any restraint that I know of; I don’t know whether he acted voluntarily or not; No one made him do as he did as I know of; he wrote his name; I suppose he did that voluntarily.”

This is the material part of the witness’ evidence as given on his direct examination as to the mental condition of the testator at the time of the execution of the will.

On his cross-examination the counsel for the contestants asked this question: “Do you think he had mind sufficient at the time, he is alleged to have executed that will to give those specific directions with reference to the disposition of that property to Mr. Nicholas ? ” This was objected to as improper, and overruled and an exception taken by the proponents, and the witness answered: “ I don’t think he was; I don’t think he had; I knew nothing about the contents of the will at the time I witnessed it; only knew it was a will from what Mr. Nicholas said” We think the question and answer were clearly incompetent. The witness was a layman and his evidence discloses that his education was quite limited The inquiry embraced in the question covered the whole issue on the question of testamentary capacity, and the witness, answer expressed his opinion on the only question in dispute. The reception of this evidence violates the general rule that witnesses must state facts within their knowledge, and not give their own opinions, or their impressions based upon their observations. The inquiry does not come within any of the few exceptions to this rule, one of which is, that those who are skilled in any “ science, art, trade or occupation, may not only testify to facts, but are sometimes permitted to give their opinions as experts. This is permitted because such witnesses are supposed, from their experience and study, to have peculiar knowledge upon the subject of inquiry, which jurors generally have not, and are thus supposed to be more capable of drawing conclusions from facts and to pass opinions thereon, than jurors generally are supposed to be.” Ferguson v. Hubbell, 97 N Y., 507.

Nor was the witness competent because he was a subscribing witness to give an answer to the question propounded, for the inquiry was not limited to an expression of the opinion of the witness as to the sanity of the testator at the time of- the execution of the will so as to bring the case within the rule stated in Hewlett v. Wood, 55 N. Y., 634, and Clapp v. Fullerton, 34 id., 190.

The inquiiy was broader and called for the expression of an opinion by the witness whether the testator had capacity to make the will in question and to give instructions to his counsel for its preparation. A person who is non compos mentis cannot make a valid will, however simple its preparation may be; if he is of sound mind and memory he can make a will disposing of his property, however complicated. In determining the question of testamentary capacity on the part of the testator, in particular instances, whenever the question arises the inquiry is not, had the testator capacity to make the will in question, but whether he was of sound mind and memory at the time of its execution. Delafield v. Parish, 25 N. Y., 97.

The cases to which we have been cited by the learned counsel for the respondents in support of the competency of the question ■ have been examined, and do not, as it appears to us, support his 'position. In the Matter of Forman’s Will, 54 Barb., 274, no qiiestian was presented as to the rules of evidence, and the matter discussed related to the degree of testamentary capacity necessary to enable a party to make a valid disposition of his property by will. Nor can it be fairly said that the question was competent on cross-examination for the purpose of ascertaining the degree of intelligence possessed by the witness for the purpose of enabling the court to determine the reliance which should be placed upon, his evidence, given on his direct examination, for the witness had only stated facts which had come within his observation, and expressed no opinion that the testator was of sound mind and memory at the time of the execution of the will.

It is, also, competent for a party against whom a witness is called, on the cross-examination, to so conduct the same as to develop the state of mind of the witness towards the parties, the circumstances under which he testifies, his degree of intelligence and discernment, and the questions which may be propounded for that purpose are largely within the discretion of the court. But in view of the character of the evidence given by the witness on his direct examination, we think permitting the question under consideration to be asked, and answered, was a plain abuse of the discretion which the law vests in the court.

The proponents called as a witness the counsel who prepared the will at the home of the decedent on the day that it was executed, all the members of the family being aware that he was there for that purpose. He testified that the testator requested the subscribing witnesses to act as such, and he gave the conversation which passed between them and the testator relative to the execution of the will, in which, as he says, he took no part. He also stated that he had a conversation with the testator in the presence of the subscribing witnesses, which the proponents offered to prove. This the contestants objected to, as incompetent under 835 of the Code of Civil Procedure, and the same was sustained and the proponents took an exception. ■> This section reads as follows: “ An attorney or counsellor 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.” This section is a mere codification of the common law rule on. the subject, as established in this state at the time of its adoption. When and by whom its protection may be invoked must be determined by the circumstances of each case as it arises. It is, however, necessary in order to bring a case within the rule of the statute that it should appear that the communication sought to be proved was confidential, and made to one acting in the capacity of attorney or counsel. The general rule deducible from the authorities was formulated and adopted in Britton v. Lorenz, 45 N. Y., 51, as follows: “ That all communications made by a client to his counsel for the purposes of professional advice or assistance are privileged, whether such advice relates to a suit pending, one contemplated, or to any other matter proper for such advice or aid; that, where the communications are made in the presence of all the parties to the controversy, they are not privileged, but the evidence is competent between such parties.” Under this rule it has been uniformly held that a communication made by a client to hia counsel in the presence of third parties, whether they were strangers or not to the subject matter of the communication, is competent. Coveney v. Tannahill, 1 Hill, 33; Whiting v. Barney, 30 N. Y., 330.

The circumstance that the conversation sought to be proved, was made in the presence of the subscribing witness indicates very clearly to our minds that there was no thought on. the part of the testator of its being confidential. Whatever may have been said was heard by both of the subscribing witnesses, and either might be compelled upon the call of an interested party to prove the conversation, which was rejected by the court on the sole ground that the witness by whom it was offered to be proved was the attorney of the parly making the communication.

The proponents asked the same witness this question: “ Where did you get your instructions from to draw the will ? ” This was objected to as being in violation of the same provision of the statute, and the objection was sustained unless the instructions came from some other person than the testator. We are also of the opinion that this ruling was erroneous. It is manifest that this question was asked of the witness for the purpose of establishing the fact that he received instructions from the testator to prepare a will containing the provisions set forth in the instrument produced. It seems almost absurd to say that such instructions were confidential, for they were intended to be communicated to his heirs-at-law and legatees and devisees named therein, and to the public whenever, after his death, the will should be offered for probate.

If it was competent evidence, as we think it was, it was material to the proponent’s case as bearing upon the question of the condition and strength of the testator’s mind at the time of making the will. It may often happen that a party in conversation with his counsel for the purpose of making and preparing a will may communicate many things of a confidential character which the counsel would not be permitted to disclose, but we entertain the opinion that all the instructions received by the counsel, and all the acts of the testator connected with the making and execution of the will which tend to uphold and support the instrument which the testator executed as being his free, voluntary and valid act, may be proved by the person who assisted him in preparing the will, although, at that time, he was acting as the legal adviser of the testator. It is a very common practice in contests over the validity of wills to call as witnesses the physicians who attended upon the testator at, or about the time the will was executed, for the pui’pose of proving the testator’s mental condition, and it has never been held, as we are are aware, that it was in violation of the provisions of the statute which prohibits a physician from, disclosing any information which he acquired in attending a patient in a professional capacity, to relate the conversation which lie had with the testator concerning his mental or physical ailments.

It was claimed by the executor, who offered the will for probate, that he, as one of the personal representatives of the testator named in the will, released the witness from any restraints imposed upon him by the statute, and thus qualified him to testify, if without such permission he would be incompetent. As it is nnnecessary in disposing of this appeal to consider that question, we pass it without expressing any opinion on the proposition.

| The surrogate did not call upon the contestants to make any proof, and held upon the proponent’s own showing that the will was void, because the testator did not possess testamentary capacity. We should hesitate to concur with the surrogate upon that question upon the proofs presented by this record if that question needs to be passed upon in disposing of this appeal.

We have concluded, however, to reverse the decree and remit the proceedings to the surrogate of Ontario county for another hearing, that the case may be first adjudicated in that court, etc., upon all the legal evidence which the parties may produce. The costs of this appeal to abide the event of the subsequent proceedings in surrogates court.

Dwight and Macomber, JJ., concur.  