Ex parte Gfeller
| Decision Date | 09 December 1903 |
| Parties | Ex Parte GFELLER |
| Court | Missouri Supreme Court |
Petitioner remanded to custody of sheriff.
Geo. D Reynolds and C. W. Holtcamp for petitioner.
(1) H H. Linze, on whose affidavit the citation issued, was neither executor, administrator nor a person interested in the estate. The answer to the citation sets up the first clause of the will of Mrs. Catherine Linze, by which she cuts off her husband from all interest in her estate. This will was duly probated, the executor appointed under it is acting under and is bound by it. Until set aside by decree of court in a proceeding for that purpose, or directly, this first clause bars Linze of all interest. The filing of an affidavit by a proper party is jurisdictional. Eans v. Eans, 79 Mo. 53. And the executor can not adopt an affidavit filed by one not in interest. Shaw v. Groomer, 60 Mo. 696. (2) The proceeding in the probate court is not a "suit pending" in a court of this State within the purview of section 2877, Revised Statutes 1899, which provides for taking of depositions in a "suit pending." Sections 2637 and 2638, Revised Statutes 1899, provide that a defendant in a criminal proceeding can not be called to testify by the prosecutor, and is only competent as a witness when he offers himself as such. Gordon v. Eans, 97 Mo. 587; United States v. Shapleigh, 54 F. 126. (3) The probate court can have no jurisdiction, and the Legislature, in attempting to confer power on it to summarily try what is essentially a criminal case, that is, a case in which there is a distinct charge of embezzlement, and in attempting to give the probate court jurisdiction to punish, by fine or imprisonment, under the guise of attachment for contempt, has attempted unconstitutionally and in evasion of the Constitution to confer upon said court jurisdiction not granted by the Constitution. This is a criminal case, a prosecution for a crime in all its essential particulars, and jurisdiction over it can not be vested in the probate court. United States v. Shapleigh, supra; Howell v. Fry, 19 Ohio S. 555; Neenser v. Barrington, 42 Ohio S. 523. (4) Answering questions 1, 15, 16, 17, 24, and 25 would involve a violation of professional confidence, and petitioner was not only not bound to answer them, but had no right to do so. R. S. 1899, sec. 4659; Sweet v. Owens, 109 Mo. 1; Ebersole v. Rankin, 102 Mo. 488; State v. Dawson, 90 Mo. 149; Gray v. Fox, 43 Mo. 570; Johnson v. Sullivan, 23 Mo. 474.
J. Hugo Grimm for respondent.
(1) The executor had the right to take depositions in this proceeding. Eckerle v. Wood, 95 Mo.App. 378; Ex Parte Priest, 76 Mo. 229; Larimore v. Bobb, 114 Mo. 446; Tyson v. Savings and Loan Association, 156 Mo. 589; Lewin v. Dille, 17 Mo. 64; Ex Parte Mumford, 57 Mo. 603; Cauthorn v. Hoyner, 24 Mo. 236; Ex Parte Livingstone, 12 Mo.App. 86. (2) The notary public had authority to commit petitioner for contempt for refusing to answer. Ex Parte McKee, 18 Mo. 599. (3) The commitment specially and plainly charged a contempt, and for this reason the prisoner should be remanded. R. S. 1899, secs. 3576, 3579; Ex Parte McKee, 18 Mo. 599; Ex Parte Priest, 76 Mo. 229. (4) The proceedings in the probate court on citation against Gfeller are not in any sense criminal proceedings. The issues are made up by the interrogatories and answers thereto and these present no criminal charge. R. S. 1899, secs. 75, 77; Tygard v. Falor, 163 Mo. 234; United States v. Shapleigh, 54 F. 128; Rothchild v. Ins. Co., 62 Mo. 359. (5) The witness could not refuse to answer a question because he or counsel considered it irrelevant; that was a question for the notary to determine. Ex Parte McKee, supra. He might have declined to answer on the ground that his answer would tend to incriminate him, but he did not place his refusal on that ground. (6) The witness must claim the privilege himself; it can not be claimed by counsel. Therefore the objections made by Eckerle's counsel can not be taken as those of the witness. State v. Wentworth, 65 Me. 234; Commonwealth v. Shaw, 4 Cush. (Mass.) 594; 3 Jones on Evidence, 893; 1 Greenleaf on Evidence (15 Ed.), 457. But if the witness had claimed the privilege, there was no basis for such claim, since it is inconceivable that any answer he might give to the questions put could have had any incriminating effect. Brown v. Walker, 16 U.S. 646. (7) The witness could not refuse to answer on the ground that his answers would disclose confidential communications received from his clients, because: (a) As to the communications received from Mrs. Linze, her executor could, and by calling Gfeller as a witness did, waive the privilege. Thompson v. Ish, 99 Mo. 170; Groll v. Tower, 85 Mo. 256; Carrington v. City, 89 Mo. 216; Weinstein v. Reed, 35 Mo.App. 47; Scripps v. Foster, 41 Mich. 742; Scott v. Harris, 113 Ill; Russell v. Jackson, 9 Hare 393; Blackburn v. Crawford, 3 Wall. 175. (b) As to communications received from Eckerle since the death of Mrs. Linze, they are not privileged, since the privilege extends only to communications having a lawful object. I Greenleaf on Evidence (15 Ed.), sec. 240, note 1; Russell v. Jackson, 9 Hare 391. (8) It is not every communication from attorney to client or all information which an attorney has concerning a client's business and property that is privileged. It has been held that it is proper to inquire about such matters as were covered by the questions in this case. Zobel v. Schrader, 35 Tex. 308; Allen v. Root, 39 Tex. 589; Williams v. Young, 46 Io. 140; James v. Friedenbourgh, 3 Pa. L. J. 199; 1 Greenleaf Ev. (15 Ed.), sec. 241, and note a to sec. 205; Schaaf v. Fries, 77 Mo.App. 346.
Habeas Corpus.
Catherine Linze died at the city of St. Louis, leaving surviving her her husband, Henry Linze. In November, 1901, letters testamentary were duly granted by the probate court of said city upon her estate, to the St. Louis Trust Company, in pursuance of her will duly admitted to probate by said court.
On October 11, 1902, the petitioner in this case, Alfred Gfeller, was arrested and held in custody by the sheriff of the city of St. Louis, under a commitment issued prior thereto by one Augustus M. Wood, a notary public within and for the city of St. Louis. On the same day Gfeller presented his petition to the Honorable Thomas A. Sherwood, one of the judges of this court, praying for his discharge under and by virtue of the habeas corpus act. The petition was duly verified, and the petitioner being brought before Judge Sherwood, in chambers at St. Louis, a writ of habeas corpus was ordered to issue, returnable to this court in term.
The facts are as follows: The estate of one Catherine Linze, being in course of administration in the probate court of the city of St. Louis, the St. Louis Trust Company being executor, the widower, Henry H. Linze, filed in said court two affidavits, in one of which he charged "that he had good cause to believe, and does believe, that Alfred Gfeller has concealed or embezzled various goods, chattels, wares, merchandise, notes, certificates of deposit, bonds, stock in corporations, and other property, evidences of debt and choses in action of the deceased, amounting in the aggregate to between $ 40,000 and $ 70,000, and constituting the bulk of her estate and the said Alfred Gfeller has such property in his possession, or under his control, and refuses to deliver it up to the St. Louis Trust Company, executor of Catherine Linze, deceased, upon demand made therefor." In the other, Linze charges "that he has good cause to believe and does believe that Frederick N. Eckerle has concealed or embezzled various goods, chattels, wares, merchandise, household articles, glassware and other personal property of the deceased, the exact value of which the affiant can not state, but which he believes to be over $ 500 and that Frederick N. Eckerle had such property in his possession or under his control and refuses to deliver them up to the St. Louis Trust Company, executor of Catherine Linze, deceased, upon demand made therefor."
Gfeller and Eckerle filed answers to the citations, in which they denied that Henry H. Linze had any interest in the estate of his wife, and averred that she died testate without issue, and that the first clause of her will, which had been duly probated, read as follows:
"I declare that I am now married to Henry H. Linze, and that I have no children; and that all the property, real, personal and mixed which I now possess, and which I desire to dispose of hereby, is my absolute property, and that my said husband has in nowise contributed thereto, nor has he any interest therein."
The answers then severally deny that they have concealed or embezzled any of the various goods, chattels, etc., belonging to the estate of the said Catherine Linze, as charged in the affidavits, or that they have any of them in possession or control, and Gfeller denies that Catherine Linze died seized of an estate amounting to between $ 40,000 and $ 70,000 as alleged in the affidavit.
Afterwards the trust company, as executor, filed written interrogatories "to be answered in writing" by Eckerle.
Those propounded to Eckerle, and his answers thereto, are as follows:
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