
    GREENLEAF K. SHERIDAN as Executor, etc., of FREDERICK H. JACKSON, Deceased, Appellant, v. JULIA R. HOUGHTON and others, Respondents.
    
      Attorney — when not privileged from, testifying,
    
    Appeal from a decree of the surrogate of the county of Now York, establishing a will of David S. Jackson, which was alleged to have been lost or destroyed after his death.,
    The execution of the will of the alleged testator was shown. It was clearly shown, also, that the will existed at the time of the testator’s decease; that it was found in his office and read in the presence of his family, and then delivered to one of his sons, David S. Jackson, Jr. It had never been presented for probate, nor was it produced, nor was any account given of the disposition made of it by David S. Jackson, Jr., who was shown to be deceased.
    The court at General Term, after directing a new hearing before the surrogate for failure to comply with the statute, proceeded: “It appears by the papers that the attorney by whom the will was drawn suffered himself to be retained on the part of the heirs who opposed the probate of the will, and refused to answer proper questions put to him upon the trial, upon the ground that he was not at libei’ty, having been counsel for the testator, to disclose what ho chose to consider confidential communications. The surrogate did not see fit to require him to testify to such ' facts in relation to the preparation and the contents of the will, in respect of which he was not only competent but bound to testify. A failure of justice must not be permitted on any such pretext, and we tbink, upon a new trial, there will be no difficulty in developing suck facts as will prevent the failure of clearly manifest justice in this case.”
    
      J. 8. Lawrence, for the appellant.
    
      JE. Luther Hamilton, for the respondents.
   Opinion

Per Ouriam :

Present — Davis, P. J., Beady and INGalls, JJ.

Decree reversed; proceedings remitted to the surrogate, with directions to proceed with the bearing of tbe case, without costs to either party on appeal.  