
    In the Matter of the Probate of the Last Will and Testament of John Cunnion, Deceased. Catherine McHugh, Appellant; Nellie Cunnion, Respondent.
    Second Department,
    December 30, 1909.
    Will — revocation by later will — evidence — contents of lost will — secondary evidence — attorney and client — privileged communications.
    Where a testator destroys a will which revoked a prior will, the prior will is not revived'unless it be duly republished.
    The execution of a later will does not revoke a prior will except it contain express words of revocation, or except' in so far as the two are inconsistent.
    "Where probate is resisted upon the ground that the testator executed a later .will by which the prior will was revoked, secondary evidence of the. contents of the second will becomes admissible where the loss of the original has been established.
    But an attorney who drew the second and. lost will cannot, in the absence of a waiver of the privilege created by section 835 of the Code of Civil Procedure, testify as to its contents, nor is a copy of the instrument made and kept by him admissible, both being confidential communications.
    Appeal by Catherine McHugh from a decree of the- Surrogate’s Court'of the county of Kings, entered in said. Surrogate’s Court bn the 23d day of December, 1908.
    
      
      John J. Ourtvn [Edward 8. Keogh with him, on the brief], for the appellant.
    
      Michael F. McQolclrick, for the respondent.
   Burr, J.:

This appeal is taken from a decree of the Surrogate’s Court of Kings county which admitted to probate as the last will and testament of John Cunnion a paper dated September 9, 1907. The death of Cunnion, the execution- of the paper by him with all the formalities required by the law of wills, his testamentary capacity, and. his freedom from undue influence, were all undisputed. Probate was resisted. upon the ground that the testator had executed another and later will by which this was revoked. It was found by the Surrogate’s Court that on the 6th day of June, 1908, he did execute another will with the requisite formalities, and that he was entirely competent to execute the same. This will was delivered to the said Cunnion, and although diligent search was made for it after his death, it has not been found. If the later will revoked the former one, although it was destroyed by the testator in his lifetime, the former will would not be thereby revived since it was never duly republished. (2 B. S. 66, § 53.) The execution of a later will does not necessarily import the revocation of an earlier one. (1 Jarm. Wills [Bigelow’s 6th ed.], 171.) It was incumbent, therefore, upon the contestant to prove the contents of the second will, and to show that either it contained express words of revocation or that "there was an implied revocation because its provisions were so inconsistent with the former will, that they could not exist together. (Id. 169.)

The correctness of the ruling of the surrogate with regard to evidence tending to prove the contents of the later will presents the only question in this case. The contestant called as a witness Francis L.-Maher, who testified as follows : “I am an attorney and counsellor-at-law. * * * I drew the will in this. proceeding, * * * the one offered for probate; I drew that. I drew a will before that and one after that. The one I drew after that was on the 6th day of June of this year. I was present at the time of the execution of that will. I gave it to- Mr. Cunnion. He took it with. him. * * * I remember the contents of the will.” .He was then asked this question : “ I ask you to state the contents, all that yon can remember ?” This was objected to as not being the best evidence, and also “ as privileged under section 835 of the Code.” The objection was sustained. Mr. Maher then testified, upon being shown a paper, that he drew it in the latter part of May, 1908, and made some alterations in it on the sixth day of June in the samé year. This paper was marked Exhibit 1 for identification. Miss “Duncan Was then called as a witness, and testified that she was a stenographer, . employed by Mr. Maher. She was then shówn Exhibit 1 for identification' and testified that she made a copy of it and returned it to Mr. Maher. Mr. Maher was then recalled- as a witness, and stated that the paper which Miss Duncan returned to him was the paper which was executed on June sixth by John Cunnion. Exhibit 1 for identification was then offered in evidence; it was objected to, and the surrogate excluded it upon the ground that to admit it would be “in violation of section 835 of the Code.” This comprises all of the evidence upon the subject. The objection to Mr/ Maher’s testimony upon the first ground stated was not well taken. The loss of the Original had been abundantly proved, so that secondary evidence of its contents became admissible. The other ground of objection is more serious. “An .attorney or counselor at law shall not be allowed to disclose a communication, made by his client to him, or his advice given thereon, in the cours.e of liis professional employment, nor shall any clerk, stenographer or other person employed by such attorney or counselor be allowed to disclose any such communication or advice given thereon.” (Code Civ. Proc. § 835.) Although it does not expressly appear from what source Mr. Maher’s knowledge of ■ the contents of the paper of June sixth was derived, in': the absence of evidence to the contrary it must be assumed that it was from communications made to him by the decedent which enabled him to draw-the same. Unless, therefore, waived, the prohibition would be applicable. ■ The statutory provisions respecting waiver are found in the succeeding section of the Code. (Code Civ. Proc. § 836.) That the prohibition lias been waived in the manner required by the statute no one contends. The appellant claims, however, that in the case of wills a special rule must be applied, and that the confidence reposed by a client in his attorney in respect to the contents of the instrument is only temporary. In Wigmore on Evidence (Vol. .4, § 2314) the author says: But for wills a special consideration comes into play. Here it can hardly be doubted that the execution and especially the contents are impliedly desired by the client to be kept secret during his lifetime, and are accordingly a ¡Dart of his confidential communication. It must be assumed that during that period the attorney ought not to be called upon to disclose even the fact of a will’s execution, much less its tenor. But, on the other hand, this confidence is intended to be temporary only. * * * It follows, therefore, that after the testator's death the attorney is at liberty to disclose all that affects the execution and tenor of the will. * * * As to the tenor and execution of the i) will, it seems hardly open to dispute that they are the very facts which the testator expected and intended to be disclosed after his death.” There are two answers to this suggestion. First, the paper the contents of which they seek to prove was not a" last will left by the testator. It did not survive him. He never'intended that it should be published to the world, and it cannot be argued that he desired the contents to be known after his death, and, therefore, waived any privilege, for he destroyed the paper in his lifetime. Second, although the principle here contended for seems to find some support in other jurisdictions, the authority in this State is to the contrary. (Loder v. Whelpley, 111 N. Y. 239; Matter of Coleman, Id. 220.) In Loder v. Whébpley the witness, who was a lawyer, drew the will from a memorandum prepared by the decedent and addressed to him. While he was under examination it was offered in evidence and received by the surrogate over proper objection. The court held that this was error, although in that particular case it was not so prejudicial as to require a reversal of the judgment. The court say: “ A lawyer, in receiving the directions or instructions of one intending to make a will, is confided in by reason of his professional character as a counselor, and he acts in that capacity, although asking no questions and without advising, he does nothing more than to reduce those directions to writing. The relation, therefore, between' the testatrix and the witness was that of client and attorney.” In the Coleman case the court say: “ 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 attorneys were clearly within the protection of the statute, we have no doubt. * * * The prohibition of the statute, therefore, applies to these communications, and they were inadmissiblevas evidence unless brought within the provisions of section 836, authorizing their disclosure.”

The question- remains whether the court was in error in excluding the paper referred to as Exhibit 1. for identification. It had been proved without objection that the paper offered in evidence was a copy of the paper executed on June sixth. It is urged that if this paper is received in evidence the attorney does not disclose anything, since the paper speaks for itself. It seems to us that this contention is not well made. The paper must be considered in connection with the attorney’s relation to it. If the attorney had kept no copy of the paper'of June sixth he could not disclose his recollection of the contents of it because that- involved confidential communications from .his client. Can a different rule be invoked because he wrote down on a separate sheet of paper the contents of that communication instead of trusting to his memory ? The paper is in spirit and effect the communication from the client to the attorney. The rule might be quite different if it was a paper which some one else had prepared, but which had been given to the attorney by his client. (Schattman v. American Credit Indemnity Co., 34 App. Div. 392, 398; Jones v. Reilly, 174 N. Y. 97.) The contents of that paper would not have been the embodiment in written form of the communication from the client to the attorney.. This paper is. “ The test is whether the document first came into existence as a part of a communication to the attorney.” (4 Wigmore Ev. 3228, § 2307.) It may be unfortunate if a paper which the testator never intended to operate as a disposition of his property after his death should be given that .effect. But we see no way in which the Surrogate’s Court could have reached a different conelusion from that arrived at in this case without overturning well established rules of law.

The decree of the Surrogate’s Court of Kings county should be affirmed, with costs.

Hiesohbeeg, P. J., Woodward, Eioh and Miller, JJ., concurred. .

Decree of the Surrogate’s Court of Kings county affirmed, with costs. '  