
    Bethany Methodist Episcopal Church, Respondent, v. Francis Henry Brooks and Others, if Living (Said Names Being Fictitious, They Being Supposed to Be the Children of Henry Dixon, Deceased, etc.), and Others, Defendants, Impleaded with Julius M. Mayer, as Attorney-General of the State of New York, Appellant.
    Fourth Department,
    March 8, 1911.
    Will — destroyed will — witness — disqualification of attorney to testify as to contents.
    In an action to establish a will which has been destroyed the attorney who prepared it is disqualified under sections 835 and 836 of the Code of Civil Procedure from testifying as to its contents, unless the prohibition of the statute be waived in the manner prescribed.
    Appeal by Julius M; Mayer, as Attorney-General of the State of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 4th day of January, 1908, upon the verdict of a jury, also from an order entered in said clerk’s office on the 19th day of December, 1907, amending and correcting the verdict and minutes of trial, and also from two orders entered on the same day denying the Attorney-General’s motion for a nonsuit and his motion for a new trial made upon the minutes.
    
      Thomas Burns, for the appellant.
    
      A. Raymond Cornwall and Virgil K. Kellogg, for the respondent.
   Spring, J.:

The action is to establish a will of Henry Dixon, who died February 25, 1898, executed in August, 1897, and alleged to have been destroyed in February, 1898. A will was subsequently executed by the decedent February 10,1898, which was refused probate by reason of the mental incapacity of the decedent and also because of undue influence practiced upon him. The testimony of the plaintiff’s witnesses tends to show that the will in controversy was destroyed on the day following the execution of the will which was refused probate, as already noted.

Specific questions were submitted to the jury for determination. The first four of these relate to the execution and contents of the will propounded, and the jury found that it was executed in conformity to the statute (2 R. S. 63, § 40 ; now Decedent Estate Law [Consol. Laws, chap. 13; Laws of 1909, chap. IS], § 21), and also determined what its provisions were, whereby the respondent was made the chief beneficiary of the testator’s bounty.

The evidence contained in the record, while not very full or satisfactory as to some of the questions submitted, was sufficient to call for the submission to the jury.

The will in question was prepared by an attorney named Goodale, long an acquaintance of the testator, and who died before the trial of the action. The subscribing witnesses to the will were the wife and daughter of the attorney, the former of whom was also dead at the time of the trial. The daughter, evidently an intelligent woman, testified in detail to the execution of the will, showing compliance with all the requirements of the.statute governing the execution of wills. She knew nothing of its contents. The deposition of Mr. Goodale had been taken before a referee and was read at the trial under the objection of the defendant’s counsel that the relation of attorney and client existed and that the communication was privileged and within the prohibition of section 835 of the Code of Civil Procedure. Mr. Goodale testified before the referee to the instructions given him by the testator to the contents of the will in detail and also as to its execution.

The Court of. Appeals in Matter of Cunnion (201 N. Y. 123, affirming 135 App. Div. 864), has held that the attorney who prepared the will in that case was disqualified by sections 835 and 836 of the Code of Civil Procedure from testifying to the contents of the will, and that decision is decisive of this case, requiring a reversal of the judgment.

The judgment should be reversed.

All concurred.

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