
    SHERIDAN v. HOUGHTON.
    N. Y. Supreme Court, First Department;
    
    
      General Term, January, 1879.
    Evidence.—Proof of Lost or Destroyed Will.—Attorney and Client.—Privileged Communications.
    A lost or destroyed will cannot be established on the testimony of two witnesses, if they differ materially either as to the beneficiaries, or the amount of bequests.
    If an attorney or counsel, having drawn a will or advised testator upon it, accepts a retainer to contest its probate, he cannot claim a privilege from testifying as a witness at the instance of the proponents.
    
    
      Appeal by plaintiff from a decree of the surrogate of New York county.
    This was an application for the probate of a paper which was not produced. The proceeding was brought upon the petition of Julia R Houghton, which alleged that the decedent, David S. Jackson, died in the city of New York, in January, 1872 ; and that prior to his death he made a will, which was in existence and in full force, unrevoked, at the time of his death, which, after his funeral, was read in the presence of the children of the testator, by Rev. T. M. C. Peters, and was then handed to the eldest son, David S. Jackson, Jr. ; that diligent search and inquiry had been made for such will, and that she had not been able to obtain possession of the same, and could not learn where it was ; that she was a legatee under such will, and therefore asked that proof be taken of its execution, &c. The application was made under 1 L. 1870, p. 828, c. 359, § 8, which is as follows :
    “ Whenever any will of real or personal estate shall be lost or destroyed by accident or design, the surrogate of said county [New York], if such will might have been proved before him, if not lost or destroyed, shall have the same power to take proof of the execution thereof, as is now vested in and exercised by the supreme court.”
    After an examination and proof before the surrogate, he decreed the probate of the will, and delivered an opinion, the parts of which material to this appeal, are as follows:
    “Mr. S. F. Cowdrey was also called as a witness; He testifies to having drawn several wills for the ■decedent, but he exhibits a remarkable lack of memory in reference to the circumstances of the preparation of the instruments. He also refused to testify, on the ground that he could not be obliged to disclose confidential communications between himself and the decedent, who was his client. I will not discuss the question, whether he can claim the benefit of the statute in such a proceeding as the one before me, but I can’t doubt but Mr. Cowdrey did prepare the alleged will, and that it was duly executed by the decedent, about a year previous to his death. The recollections of the two witnesses, Mr. Peters and Mr. Turrie, in reference to the contents of the alleged will, vary. Both agree in reference to the legatees thereunder, but not in reference to the amounts of the gifts. I am satisfied that, generally, the recollection of Mr. Turrie is trustworthy, and to be relied upon, in view of the particularity with which he specifies the facts; whilst the distinct recollection by Mr. Peters of a specific devise of property in Orchard street, to his son Frederick, entitles his testimony to be regarded as proof of that portion of the contents of the paper. I therefore, after a careful examination of their testimony, decide that the paper provided for gifts, as follows
    [Here the learned surrogate stated his findings of the contents of the said will, according to the testimony, and then continued:]
    “Probably the best witness on the important question of the contents of this paper would be Mr. S. F. Cowdrey, provided he could relieve his conscience from a sense of duty, which he thinks impels him to not disclose what he regards as confidential communications between himself and his client. But as Mr. Cowdrey has declined to give his testimony to aid me in the effort to determine, the exact provisions of the will, I have been compelled to draw my conclusions from the testimony of the other witnesses, as above stated.”
    .From this decree Frederick H. Jackson, one of the heirs-at-law and next of kin of the said David S. Jackson, appealed to the supreme court, and all others who were interested in the estate were made parties respondent.
    The said Frederick H. Jackson having died during the pendency of the appeal, Greenleaf K. Sheridan, his executor, was substituted as appellant.
    The other material facts sufficiently appear in the opinion.
    
      John S. Lawrence, for the appellant.
    
      E. Luther Hamilton, for part of respondents.
    
      George W. Ellis, guardian ad litem, for infant respondents.
    
      
       For the general rule, see Code Civ. Pro. § 835; Blackburn v. Crawfords, 3 Wall. 175; Allen v. Public Administrator, 1 Bradf. 221.
    
   By the Court.

The execution of the will of the alleged testator was sufficiently 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 any account given of the disposition made of it by David S. Jackson, Jr., who was shown to be deceased. There can be little doubt, therefore, that the will was surreptitiously disposed of by some party interested in so doing. It is very clear that it ought to be established if practicable, in compliance with the statute, and perhaps, upon a second trial, satisfactory evidence to accomplish that purpose may be produced. But the statute is very strict in its requirements. It requires that the provisions of a will lost or destroyed “shall be clearly and distinctly proved by at least two credible witnesses, a correct copy or draft .being equivalent to one witness.”

On looking carefully into the evidence in this case, we think this requirement of the statute was not fully complied with. The witnesses sufficiently concur as to some of the legacies of the will, but as to other of its provisions, found to be established by the surrogate, there was such discrepancy in the evidence that we are unable to see that the will was proved by two witnesses, as required by the statute.

We are reluctantly compelled, therefore, as matter of law, to reverse the decree, and to direct a re-hearing before the surrogate.

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 liberty, having been counsel for the testator, to disclose what he 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 think upon' a new trial there will be no difficulty in developing such facts as will prevent the clearly manifest failure of justice in this case.

The decree must be reversed, and proceedings remitted to the surrogate, with directions to proceed with the hearing of the case. No costs to either party on this appeal. 
      
       Present, Davis, P. J., and Beady and Ihgails, JJ.
     