Coates v. Semper (In re Semper's Estate)

• Decision Date: 13 February 1901
• Citation: 82 Minn. 460,85 N.W. 217
• Parties: In re SEMPER'S ESTATE. COATES et al. v. SEMPER.
• Court: Minnesota Supreme Court

82 Minn. 460

85 N.W. 217

In re SEMPER'S ESTATE.COATES et al.

v.SEMPER.

Supreme Court of Minnesota.

Feb. 13, 1901.

Appeal from district court, Benton county; L. L. Baxter, Judge.

In the matter of the estate of Fanny Semper, deceased. From a judgment admitting her will to probate on petition of William Semper, Joseph H. Coates and others appeal. Affirmed.

Syllabus by the Court

1. An attorney at law who draws a will, and attends the person executing the same to give advice, is not prohibited, on account of his relations as such counsel, from testifying concerning the facts connected with such execution, in a contest thereon. Following In re Layman's Will, 42 N. W. 286,40 Minn. 373.

2. Evidence considered, and held, that the same supports the findings of fact by the trial court, and that the findings of fact sustain the conclusions of law to the effect that the instrument proposed as the last will of testatrix was properly executed, that she had the necessary testamentary capacity, and that the same was her legal will. Geo. Stewart, for appellants.

Reynolds & Roeser, for respondent.

LOVELY, J.

Fanny Semper died testate in March, 1896. Her will was duly proposed and admitted to probate. Appeal was taken to the district court, where the will was contested upon the ground that the same was not properly executed, and that testatrix was not mentally competent and possessed of the testamentary capacity requisite in such cases. Upon the trial of the cause the district court made specific findings of fact and law to the effect that the testatrix was possessed of sufficient testamentary capacity to execute the will, also that the instrument presented was her last will and testament, and affirmed the decree of the probate court. The contestants moved to vacate the order of the trial court, which motion was overruled, and defendant appealed therefrom to this court upon two grounds: (1) That the decision is not justified by the evidence; and (2) errors of law occurring at the trial.

At the trial in the district court, one Senn, who was the attorney who drew the will, signed the same as a witness, and assisted in its execution as legal counsel of testatrix, was asked the following question: ‘Before the execution of the will, what did you do with reference to making the contents known to the testatrix?’ To which question objection was made that the communication between such attorney and the executrix was privileged. The objection was overruled,...