
    COMPETENCY OF TESTIMONY OF A FORMER ATTORNEY.
    Circuit Court of Hamilton County.
    Bernard Feltrup, Executor, v. Helene Schloemer.
    Decided, December 3, 1910.
    
      Witnesses — Attorney Who Drew Will of Decedent May Testify as to Other Matters — Past Services Sufficient Consideration for a Promise.
    
    1. An attorney who drew the will of a decedent, but who performed no other services for her, is not debarred from testifying as to conversations occurring between them other than in connection with the drawing of the will.
    2. A contract is not rendered unenforcible by reason of the fact that the consideration for the promise upon which it was based was service rendered in the past.
    
      
      H. C. Busch and Powell & Smiley, for the plaintiff in error.
    
      Thorne Baker, contra.
    Smith, J.; Giffen, P. J., and Swing, J., concur.
   Section 5241, Revised Statutes, provides:

“The following persons shall not testify in certain respects: First, an attorney concerning a communciation made to him by his client in that relation, or his advice to his client. ’ ’

This is applicable only where the communication is of such a character that it would not have been made except for that relation. Smart v. Nova Caesarea Lodge No. 2, 6 C.C. (N.S.), page 15.

The witness, Frank J. Dorger, whose testimony was objected to at the trial of the case, was not therefore an incompetent witness. ITe distinctly states he was only the attorney of Mrs. Niehoff in the drawing of her will; this, therefore, would not foreclose him from being called to testify upon any other subject of conversation between them, but only as to those things and conversations which came to him as attorney by reason of and in connection with the matter for which he was acting as her attorney.

We think the evidence sustains the claim of the defendant in error, and the court sitting as a jury having so found and instructed a verdict in favor of defendant in error, the same should not be set aside. First National Bank v. Hayes, 64 O. S., 100.

Upon the question argued by counsel that the contract could not be enforced for the reason that the services rendered were past and therefore there was no good consideration for the promise, the court is of the opinion that under the rule set forth in the case of Erwin, Admr., v. Lombard University, 56 O. S., page 20, this contention can not be maintained.

We find no errors in the record and the judgment will be affirmed.  