O'Brien v. Spalding

• Decision Date: 10 August 1897
• Citation: 31 S.E. 100,102 Ga. 490
• Parties: O'BRIEN et al. v. SPALDING.
• Court: Georgia Supreme Court

31 S.E. 100

102 Ga. 490

O'BRIEN et al. v. SPALDING.

Supreme Court of Georgia

August 10, 1897

Syllabus by the Court.

1. The act of August 4, 1887, now embodied in section 5271 of the Civil Code, which declares that "no attorney shall be competent or compellable to testify, in any court in this state, for or against his client, to any matter or thing knowledge of which he may have acquired from his client, by virtue of his relations as attorney," has no application to the competency of an attorney as a witness with respect to essential facts attending the execution of a will in the preparation, and as to the attestation, of which he rendered professional services. In such a matter the attorney is not testifying "for or against his client," or for or against the interests of the client's estate.

2. The fact that the relation of attorney and client had, in a general way, existed for a considerable period of time between an attorney at law and another person, even if it continued to exist at a time when the latter consulted the former as to the making of a will, does not, in the trial of an issue of devisavit vel non, arising upon a paper propounded as the will of such other person, and of which the attorney is the nominated executor, render him incompetent to testify as a witness to all pertinent facts within his knowledge, the witness not availing himself of his privilege as attorney to decline to testify, and the matters as to which he does testify not being such as are excluded from public policy. Accordingly, it is lawful at such a trial to prove by the attorney that the alleged testator conferred with him as to the making of the will, and gave instructions for its preparation (the nature of which the witness may state), and that these instructions were subsequently, by another attorney, to whom they were communicated by the witness, and who was the draftsman of the instrument propounded, embodied therein.

3. An attorney at law who attested a will as a subscribing witness is, though he was employed to draft the same, and attend to its execution, competent, in the trial of an application for its probate, to testify as a witness concerning the alleged testator's mental condition; also as to facts showing the latter's knowledge or ignorance of the contents of the paper, and as to all other pertinent facts attending the signing and attestation of the instrument.

4. It is not essential to the validity of a will that the testator should understand the meaning of all the technical terms and legal phraseology therein employed; it is sufficient if he understands the meaning and effect of the instrument as a whole, if the same truly expresses his testamentary intentions as to the disposition of his estate. Even if it were otherwise, there would be, in a given case, no cause for setting aside a will because of the testator's alleged ignorance of the meaning of such terms, when there was ample evidence to warrant a finding that they were explained to and fully understood by him.

5. The evidence, though conflicting, warranted the verdict, and there was no abuse of discretion in denying a new trial.

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Proceedings by J. J. Spalding to probate the will of Mrs. Flynn. From a judgment probating the will, Mary M. O'Brien and others bring error. Affirmed.

John L Hopkins & Sons, Payne & Tye, and Jas. F. O'Neill, for plaintiffs in error.

N. J. & T. A. Hammond and John T. Pendleton, for defendant in error.

FISH J.

1. The record before us discloses that Mr. King, an attorney at law, drafted the instrument offered for probate as the will of Mrs. Flynn, called in person upon her at her home in order that he might read the paper over to her and explain its legal effect, and was subsequently present when she signed it, assisting in and supervising the execution and attestation of the instrument, which he himself signed as one of the attesting witnesses. Whether, under the peculiar circumstances attending and leading up to Mr. King's connection with this matter, the relation of attorney and client existed between him and Mrs. Flynn, is a question as to which the parties are at issue. We shall, however, in dealing with certain other contentions on the part of the plaintiffs in error, based upon the idea that Mr. King was acting professionally in all that he did in Mrs. Flynn's behalf, assume this to be the truth of the matter, and thus give the plaintiffs the benefit of any doubt there may be in regard thereto. This course will not, on the other hand, be unfair to the defendant in error; for, as we shall endeavor to show, there is no merit in the plaintiffs' contentions above alluded to, even conceding the premise in dispute.

Complaint is made that on the trial of the present case Mr. King was introduced as a witness in behalf of the propounder of the paper offered for probate, and was allowed, over objection, to testify concerning its execution by Mrs. Flynn, as to her mental capacity to make a will, and as to what passed between them when he lead over to her and explained the meaning of the instrument he had prepared for her to sign. It is contended by counsel for the plaintiffs in error that, as Mr. King sustained towards the testatrix the attitude of attorney and confidential adviser, he was an incompetent witness to testify concerning any facts or circumstances knowledge of which he had gained while attending to his professional duties in the premises. We do not, however, understand the law to be that the plaintiffs are at liberty to urge this objection. The purpose of the common-law rule declaring that communications between attorney and client are privileged is to protect the client. Greenough v. Gaskell, 1 Mylne & K. 98, 103. Strangers are not at liberty to invoke this rule in their behalf. Accordingly, it was early decided in England that "in a suit by next of kin of a testator, challenging a residuary gift made by his will to the executors, on the ground that it was made on a secret trust for an illegal purpose, *** communications had between the testator and the solicitor employed by him to prepare the will, with reference to the will and the trusts thereof, were not privileged." Russell v. Jackson, 8 Eng. Law & Eq. 89, 15 Jur. 1117, and 9 Hare, 387. The correctness of this position has received the unqualified recognition of the supreme court of the United States. Blackburn v. Crawfords, 3 Wall. 176. Indeed, the doctrine laid down by the English courts appears to have become the firmly-established law of this country. Graham v. O'Fallon, 4 Mo. 338; In re Layman's Will, 40 Minn. 371, 42 N.W. 286; McMaster v. Scriven, 85 Wis. 162, 55 N.W. 149; Scott v. Harris, 113 Ill, 447; Doherty v. O'Callaghan, 157 Mass. 90, 31 N.E. 726. In the case last cited, Lathrop, J., in pronouncing the opinion of the court, said: "Undoubtedly, while the testator lives, the attorney drawing his will would not be allowed, without the consent of the testator, to testify to communications made to him concerning it, or to the contents of the will itself; but after his death, and when the will is presented for probate, we see no reason why, as matter of public policy, the attorney should not be allowed to testify as to directions given to him by the testator, so that it may appear whether the instrument presented for probate is or is not the will of the alleged testator." In our investigation of this question, we have encountered numerous other authorities to the same effect, some of which may readily be found by reference to Whart. Ev. § 591, and 19 Am. & Eng. Enc. Law, 142. It would be unprofitable, however, to attempt to further sustain the position above announced by the citation of additional cases, more or less in point, for the reason that counsel for the plaintiffs in error, in their written argument presented to this court, very frankly say: "By weight of authority under the common law, it was held that the reason of the general rule does not apply to communications made to an attorney by a testator while giving instructions for drafting a will; that the protection which the rule gives, and is intended to give, is the protection of the client; and that it cannot be said to be for the interests of a testator, in a controversy between other parties, to have those declarations excluded which are relevant, and which were necessary to the proper execution of his will. *** In other words, we concede the proposition that under the common law the courts have held that an attorney can testify as to what occurred between him and the testator, and that it does not violate the policy of the law which gave birth to the rule." The real contention of counsel is that the common-law rule in regard to privileged communications between attorney and client no longer obtains in Georgia, but has been changed by statute. The act relied on is that of August 4, 1887, which is now embodied in section 5271 of the Civil Code, and reads as follows: "No attorney

shall be competent or compellable to testify in any court in this state, for or against his client, to any matter or thing, knowledge of which he may have acquired from his client, by virtue of his relations as attorney, or by reason of the anticipated employment of him as attorney, but shall be both competent and compellable to testify, for or against his client, as to any matter or thing, knowledge of which he may have acquired in any other manner." We are at a loss to perceive how the language employed in this statute can be construed as containing any intimation that it was designed to protect persons other than the client himself, and that therefore, a stranger could invoke it in his behalf in a controversy to which the client was not even a nominal pa...