
    
      In re Gagan’s Will.
    
      (Surrogate's Court, Orange County.
    
    June 8, 1892.)
    I. Competency op Executor as Witness—Probate of Will.
    In the probate of a will a witness who is named as executor is not an interested party, within the meaning of Code Civil Proc. § 829.
    3. Same^Attorney as Witness to Will.
    Under Code Civil Proc. § 835, an attorney is incompetent to testify as to communications made to him in his professional capacity. Section 836 provides that the client may waive his attorney’s disqualification, but Act 1891, amendatory thereof, provides that the waiver must be made on the trial or examination. Held, that a testator waives his right of secrecy by requesting his attorney to witness his will.
    8. Retrospective Statute—Witness—Removal of Disqualification.
    Act May 12,1892, amending Code Civil Proc. § 836, which provides that nothing contained in said section shall disqualify an attorney from testifying on the probate of his client’s will as to its preparation and .execution, in case he is a subscribing witness, does not, in being retrospective, interfere with vested rights.
    Proceeding for the probate of the will of Henry Gagan, deceased. Henry Gagan, Jr., and others contested the application. Will admitted to probate.
    
      Howard Thornton, for executors. E. A. Brewster, Jr., for contestant. J. L. Strahan, special guardian of the infant 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 section 829 of the Code. Loder v. Whelpley, 111 N. Y. 239, 18 N. E. Rep. 874, 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 In re Wilson, 103 N. Y. 374, 8 N. E. Rep. 731, which originated in this court.

This testimony is also objected to because it discloses communications made by the deceased to the witness, who was his attorney, in the course of professional employment. Code Civil Proc. § 835. In Re Coleman, 111 N. Y. 220, 19 N. E. Rep. 71, it was held-that the testator waived, as he might do under section 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 section 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 vill were commenced April 14, 1892, and the witness Thornton was examined therein May 26, 1892. The legislature by another amendment to section 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 1 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 Re Coleman, supra, notwithstanding the statement there made that, except for the waiving having been made, the testimony would not have been admissible. See, also, Rosseau v. Bleau, 131 N. Y. 177, 183, 30 N. E. Rep. 52. 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, Comm. 455; Potter’s Dwar. St. p. 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 the statute under which they claim the right. Miller's Case, 1W. Bl. 451; Rex v. Justices of the Peace, 3 Burr. 1456; Maggs v. Hunt, 4 Bing. 212, 12 Moore, 357.

Will admitted to probate.  