Doherty v. O'Callaghan
| Decision Date | 27 June 1892 |
| Citation | 157 Mass. 90,31 N.E. 726 |
| Parties | DOHERTY v. O'CALLAGHAN et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
C.F. Donnelly, for appellants.
W.I Badger, for appellee.
This is an appeal from a decree of a justice of this court, affirming a decree of the judge of probate for the county of Suffolk admitting to probate the will of one Patrick Grealy. The reasons of appeal filed in the probate court were that, at the time of the execution of the instrument offered for probate, the said Grealy did not know the contents thereof; that he was then not of sound and disposing mind and memory; and that the instrument was procured by fraud and undue influence of two persons named.
1. Before the case was heard, the appellants moved that issues be framed for a jury, but did not state what issues were desired. This motion was denied, and an appeal was taken to this court. We assume, for the purposes of the case, that the appellants desired issues in accordance with their reasons of appeal. It is provided by Pub.St. c. 156, § 19, that, "if upon the hearing of an appeal in the supreme court of probate, a question of fact occurs proper for trial by jury, the court may cause it to be so tried upon an issue formed for the purpose under the direction of the court." We agree that the general practice of this court has been, and remains, to frame the customary issues; but the discretion asserted in Davis v. Davis, 123 Mass. 590, 593, remains so far a reality that if the court is satisfied that injustice would be done by framing them, and that special reasons exist for declining to frame them, and in proceeding to try the case at once, it has the right to adopt that course. The exercise of this discretion may be reviewed by this court on appeal; but in the case at bar we have no means of determining that the justice who declined to frame issues was wrong. Fay v. Vanderford, 154 Mass. 498, 28 N.E. 681.
2. Thomas J. Gargan, Esq., an attorney at law, was permitted to testify, against the objection and exception of the appellants, in regard to what was said to him by Grealy, when the latter came to see him in regard to drawing the will. This conversation included the directions given by Grealy as to the disposition of his property. The appellants contend that these communications were privileged, and therefore inadmissible. The only case which they have brought to our attention bearing upon this point is Loder v. Whelpley, 111 N.Y. 239, 18 N.E. 874, where it is said: "A lawyer, in receiving the directions or instructions of one intending to make a will, is confided in by reason of his professional character as a counselor, and he acts in that capacity, although, asking no questions, and without advising, he does nothing more than to reduce the directions to writing." And the opinion was expressed that under the New York Code, which provides that "an attorney or counselor at law shall not be allowed to disclose a communication made by his client to him, or his advice given thereon in the course of his professional employment," what was said at certain interviews with the testatrix could not be testified to by the attorney. This opinion was, however, to some extent obiter dictum, as it was held that the contestant was not prejudiced by the admission of the evidence, on the ground that, leaving out the testimony of the attorney, the judgment below must be affirmed on the other evidence in the case. The question before us, however, is not what construction is to be given to the language of a Code, but what is the rule at common law, and the further question whether the case at bar comes within the rule. The general rule undoubtedly is that an attorney shall not be called upon or allowed to disclose matters communicated to him by his clients in professional confidence. Foster v. Hall, 12 Pick. 89, 93. See, also, ...
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