
    In the Matter of the Proving of the Will of William Coleman, Deceased.
    
      (Court of Appeals,
    
    
      Filed November 27 1888.)
    
    1. Attorney and client—Evidence—Conversations of attorney with: TESTATOR TO ENABLE HIM TO DRAW WILL WITHIN CODE ClV. PRO., § 835.
    H. and N., a firm of lawyers, were employed by the testator in their professional capacity to draw certain wills, and upon the probate of the will in question testified to conversations which the testator had with them for the purpose of enabling them to execute the instructions of the testator These interviews were had in pursuance to and under the sanction of the professional employment. Held, that Code Civ. Pro., § 885, applied to these communications, and that they were inadmissible as evidence, unless brought within the provisions of section 836, authorizing their disclosure.
    2. Same—A request that the attorney sign as attesting witness a waiver of the statute—Code Civ. Pro , § 836
    It was shown that the testator requested both H. and N. to sign the attestation clause of his first, as well as of his second will, as witnesses thereto. Held, that the act of the testator in requesting his attorneys to become witnesses to his will leaves no doubt as to his intention thereby to exempt them from the operation of the statute, and leave them free to perform the office of subscribing witnesses unrestrained by any objection which he had power to remove.
    3. Same—Client presumed to know effect of his acts.
    The law presumes knowledge, on the part of the testator, of the provisions of his will, and that what he does deliberately is done with a full comprehension of the legal effect of his act, and the duty which it imposed upon those who complied with his request.
    4. Same—Waiver authorized by Code Civ. Pro., § 836—How made.
    Code Civ. Pro., § 836, does not require the client’s waiver of section 835, which requires an attorney to keep secret knowledge gained in his professional capacity, to be made in writing or in any particular form or manner, or at any particular time or place, but it is required to be an express waiver, and made in such manner as to show that the client intended to exempt the attorneys in the particular instance from the prohibition imposed by the statute.
    5. Peobate of will—Evidence—What past op ees gestas of execution of WILL
    The condition of the testator’s mind, as evidenced by his actions, conduct and conversation at the time of making the will, is a part of the res gestm of the transaction, and witnesses thereto are competent to speak thereof and give opinions in relation thereto, without any other knowledge thereof except that derived from conduct on such occasions.
    Appeal from a judgment of the supreme court, general term, third department, affirming a decree of surrogate’s court, admitting the will of the decedent to probate.
    
      James C. Rogers, for app’lt; A. D. Wait, for resp’t.
   Ruger, Ch. J.

The probate of the will of William Coleman, deceased, was contested before the surrogate by his widow and several of his children and grandchildren upon the ground that he was not of sound mind and memory at the time of its execution, and its execution was procured through undue influence, fraud and intimidation exercised over him by Robert S. Coleman. The will was admitted to probate and the decree was affirmed upon appeal by the general term.

It is urged upon this appeal that the evidence produced before the surrogate by the contestants, as to the mental and physical weakness, and incompetency of the testator to make a valid will, is so strong and conclusive, that this court should reverse the decision of the court below upon the facts.

It is not our purpose to go into a detailed history of the evidence or comment upon the weight and force of the various facts and circumstances proved on the trial by the respective parties to sustain their several positions, as it is not even claimed by the appellants, that there was no evidence to support the decree of the surrogate. Their utmost contention is that the evidence on the part of the contestants, is so persuasive and convincing, either of the mental incompetency of the testator or of the exercise of undue influence by the proponent in procuring the execution of the will, that the court should hold, as matter of law, that it was error for the surrogate to admit it to probate.

The argument of the appellants is based, to a large extend, upon evidence which was admitted on the trial against the objections of the proponent, and which we deem to be clearly inadmissible. While we consider the case made by the contestants upon the evidence to be very strong, and as presenting a serious question whether the testator was •competent to make a valid will or not, yet the exclusion of the evidence improperly received on their hehalf by the surrogate, very much impairs the force and strength of their case, and leaves the evidence as to the testator’s competency, more nearly balanced than it would otherwise have been.

A general outline of the facts will be sufficient to present the views we deem it necessary to express upon the determination of this appeal. Robert S. Coleman, the only son of the testator, was the proponent of the will, and one of the three executors named therein; the others having renounced or declined to act in that capacity. The testator, at the time of its execution, was upwards of eighty years of age, and died within a year thereafter. He was then possessed of property mainly consisting of real estate of the value of about forty thousand dollars, and had several children and grandchildren who were in needy circumstances, partially dependent upon him for support; but were not mentioned in or provided for by the will, although apparently the natural objects of his bounty.

That instrament, after making slight provision for two of his grandchildren, gave his personal property, together with a life estate in his homestead to his widow, and the remainder thereof, together with a remainder in the .home.stead to the proponent. Robert was by profession a lawyer, and, although living in his father’s family and being supported by him until he was nearly forty years of age, had never rendered material assistance to the testator in his business affairs and was not apparently regarded by him with favor or as a proper or fit person to have the management and control of business such as that in which the testator had theretofore been engaged.

Upon the trial much evidence was given upon both sides in regard to the mental and physical condition of the testator during the three or four years preceding his death; but no direct evidence was produced as to any effort on the part of the proponent to procure the making of a will by his father, or to influence or dictate the nature of its provisions. The proof on the part of the contestants as to the exercise of undue influence, is based wholly upon inference sought to be drawn from the apparently unfriendly relations existing between the testator and his son; the alleged unnatural and inequitable disposition of the property; the -advanced age of the testator and the absence of any apparent reason, except the assumed existence of some extraneous influence, for excluding the other children from a share in his estate. There was much evidence produced by the contestants as to the impairment of the mental and physical condition of the testator subsequent to 1877, when, it was claimed that he had experienced a paralytic affection _ which caused a gradual but continuous impairment of his faculties down to the time of his death in April, 1881.

The evidence was met on the part of the proponent by nearly an equal number of witnesses who testified to facts and circumstances showing the continued mental soundness of the testator’s faculties and his capacity to transact business affairs until after the execution of the will.

The evidence on the part of the contestants is subject to-the criticism that much of' it was given under the objection of the proponent, and was of doubtful admissibility upon the questions litigated. Aside from the evidence of Mrs. Coleman, the most material and important facts on the part of the contestants were undoubtedly proved by the witnesses Mrs. Seelye, the daughter of the testator, and the two physicians, Drs. Clark and Little, who testified to the unsoundness of mind of the testator during the year 1877, and subsequent thereto, from knowledge acquired by them while attending him respectively in a professional capacity. This evidence was duly objected to by the proponent, but was admitted against such objection. So far as the evidence of the medical witnesses is concerned, there can be but little doubt of its inadmissibility, and it should have been disregarded by the surrogate in determining the question of the testator’s mental and physical condition.

It seems to us that this evidence falls clearly within the prohibition contained in section 834 of Code, as illustrated and applied in recent decisions of this court. Grattan v. Met. Life Ins. Co., 80 N. Y., 296; Edington v. Mat. Life Ins. Co., 67 id., 185; Westover v. Ætna Ins. Co., 99 id., 56; People v. Schuyler, 106 id., 318; 8 N. Y. State Rep., 860; Reinhan v. Dennin, 103 N. Y., 574; 4 N. Y. State Rep., 261.

It is perhaps hot important that we should comment upon the propriety of the rulings on the trial in reference to the evidence on the part of the contestants, since, in any event, whether it be considered or not, we are of the opinion that the question of the testator’s mental condition and the exercise of undue influence over him in respect to the execution of the will, was one of fact to be determined by the trial' court. Whatever may be said of -the evidence, we are clearly of the opinion that not only was there evidence upon which the decision of the surrogate could properly be supported, but there was no such preponderance as to the testator’s mental incapacity to make a valid will, as would have authorized a reversal by an appellate tribunal of the. surrogate’s decree determining that fact in favor of the proponent. In re Ross, 87 N. Y., 514; In re Cottrell, 95 id., 333; Hewlett v. Elmer, 103 id., 161; 3 N. Y. State Rep., 1.

The most material question in the case arises over the-exception taken by the contestants to the admission of the evidence of the witnesses Hughes and Horthrup, as to conversations had by them respectively with the testator at the time of receiving instructions in reference to a draft of the will offered for probate and another drawn about two years previously by the same attorneys. The testimony given by these witnesses was undoubtedly very material and important in its bearing upon the issue tried, and if erroneously admitted would lead to a reversal of the judgment appealed from.

The evidence showed that the witnesses were a firm of lawyers residing at Sandy Hill and were employed by the-testator in their professional capacity to draw such wills, and that the conversations testified to were had with them for the purpose of enabling them to execute the instructions of the testator. That these interviews were had in pursuance of and under the sanction of a professional employment, and that communications made by a client under such circumstances to his attorney, were clearly within the protection of the statute, we have no doubt. Westover v. Ætna Ins. Co. (supra); Reinham v. Dennin (supra); § 835, Code of Civil Procedure.

The prohibition of the statute therefore applies to these-communications and they were inadmissible as evidence unless brought within the provisions of section 836 authorizing their disclosure. By that section the pledge of secrecy imposed by the statute is to be observed unless its provisions “are expressly waived” by the client. There is nothing in this section requiring the waiver to be made in writing, or in any particular form or manner, or at any time or place; but it is required to be an express waiver and made in such manner as to show that the testator intended to exempt his attorneys in the particular instance from the prohibition imposed by the statute

An examination of the will itself as well as the evidence of all of the witnesses present on the occasion of its execution, concur in establishing the fact that the testator requested both Hughes and Northrup to sign the attestation clause of his first, as well qs of his second will, as witnesses, thereto. That request implies not only information as to the necessity of such signatures to the validity of the instrument executed, but also knowledge of the obligations which they assumed in respect to the proof thereof after his death. He must have been aware that his object in making a will might prove to be ineffectual unless these witnesses could be. called to testify to the circumstances attending its execution including the condition of his mental faculties at that time.

The condition of the testator’s mind as evidenced by his actions, conduct and conversation at the time of making a will, is a part of the res gestee of the transaction, and witnesses thereto are competent to speak thereof and give opinions in relation thereto without any other knowledge thereof except that derived from his conduct on such occasions. Clapp v. Fullerton, 34 N. Y., 190; Holcomb v. Holcomb, 95 N. Y., 316. The law presumes knowledge on his part of its provisions and that what he does deliberately, is done with a full comprehension of the legal effect of his act and the duty which it imposes upon those who comply with his request. It would be contrary to settled rules of law to ascribe to the testator an intention while making his will and going through the forms required to make it a valid instrument to leave in operation the provisions of statute which he had power to waive, but which, if not waived, might frustrate and defeat the whole object of his action.

It cannot be doubted that if a client in his life-time should sail his attorney as a witness in a legal proceeding to testify to transactions taking place between himself and his attorney while occupying the relation of attorney and client, such an act would be held to constitute an express waiver of the seal of secrecy imposed by the statute, and can it be any less so when the client has left written and oral evidence of his desire that his attorney should testify to facts learned through their professional relations, upon a judicial proceeding- to take place after his death, we think not. McKinney v. R. R. Co., 104 N. Y., 352; 4 N. Y. State Rep., 349.

The act of the testator in requesting his attorneys to become witnesses to his will, leaves no doubt as to his intention thereby to exempt them from the operation of the statute and leave them free to perform the duties of the office -assigned them, unrestrained by any objection which he had power to remove.

We have carefully examined other points made by the appellant upon the argument and in the printed brief submitted to the court, but find no material error committed by the trial court which entitles the apoellant to a reversal of the judgment.

The judgment should, therefore, be affirmed, with costs.

All concur.  