In RE Probate of Will of Layman
| Decision Date | 22 April 1889 |
| Citation | 42 N.W. 286,40 Minn. 371 |
| Parties | In the Matter of the Probate of the Will of Martin Layman |
| Court | Minnesota Supreme Court |
From a judgment of the probate court of Hennepin county, admitting an instrument to probate as the last will of Martin Layman deceased, the contestant, Lizzie Haley, a grand-daughter of the testator, appealed, on questions of law and fact, to the district court for the same county, where issues were framed and were tried before Young, J., and a jury. The verdict was in favor of the will, a new trial was refused, and the contestant appealed.
Judgment reversed.
Hart & Brewer, for appellant.
Wilson & Lawrence and R. W. Laing, for respondents.
But two questions are presented for our consideration upon this appeal: First. Did the trial court err in admitting certain testimony of the witness Laing, objected to by the contestant on the ground that it was incompetent and inadmissible, by reason of Gen. St. 1878 c. 73, § 10? Second. Did the court err in charging the jury that the burden of proof was upon the contestant, and that she must show by a preponderance of testimony the loss or absence of the mental capacity required by statute to make a will?
The principal question in this case seems to have been as to the sanity of the deceased when he executed the instrument offered for probate, and alleged by the proponents to be his last will and testament. The witness Laing was an attorney at law, and had prepared the will in question. He had also served the decedent in other matters as his legal adviser. In this way he had acquired some knowledge of the mental condition of the deceased, and was more or less qualified to express an opinion as to his sanity. Under the rule laid down in the case of Pinney's Will, 27 Minn. 280, (6 N.W. 791, and 7 N.W. 144,) that a non-expert must first disclose the facts upon which his opinion may be predicated before he can be allowed to express one upon the question of soundness of mind, the witness stated his professional connection with the testator for quite a period of time before his death, including the day upon which the will was drafted and signed, and also testified that he had many conversations with him, always upon legal business. He was then permitted, the contestant objecting, to narrate the details of the business which was transacted, what the deceased counselled the witness about, what he said, and what advice and counsel he was given by the attorney. The full particulars of one or two interviews, in no manner connected with the making of the will, were related to the jury. These communications between the decedent and his attorney were privileged at common law as well as by statute, the object of the rule being the protection of the client and his estate. And while many text-writers assert emphatically that the seal of secrecy remains forever, unless removed by the party himself, there is an abundance of authority for saying that upon the decease of the only person who could, in his lifetime, exercise the privilege of waiver, the rule should not be so perverted by a strict adherence to it as to render it inconsistent with its object, and thus bring it into direct conflict with the reason upon which it is founded. Russell v. Jackson, 15 Jur. 1117; Blackburn v. Crawfords, 70 U.S. 175, 3 Wall. 175, 18 L.Ed. 186; Groll v. Tower, 85 Mo. 249. The object of the rule, so far as it relates to this class of communications, being the protection of the estate, there remains no reason for continuing it when the very foundation upon which it proceeds is wanting. The testimony called for was quite necessary in order to determine the weight which ought to be given the witness' opinion as to the mental condition of the testator, and his disclosures in no way reflected upon the character or reputation of the deceased. The testimony when given served to protect the estate, and tended to aid in a proper disposition of it. The issue in the case was as to the mental soundness of a person under whom each litigant claimed, and, whatever the result,...
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