Gaines v. Gaines

• Decision Date: 16 December 1952
• Docket Number: No. 34584,34584
• Citation: 251 P.2d 1044,207 Okla. 619
• Parties: GAINES v. GAINES.
• Court: Oklahoma Supreme Court

Page 1044

251 P.2d 1044

207 Okla. 619

GAINES v. GAINES.

No. 34584.

Supreme Court of Oklahoma.

Dec. 16, 1952.

Rehearing Denied Jan. 6, 1953.

Syllabus by the Court.

1. The rule of privilege between attorney and client does not apply in litigation, after client's death, between parties, all of whom claim under the client.

2. A resulting trust may be established by parol evidence, but the law requires that the proof necessary to establish it should be of the most satisfactory kind. The onus of establishing a resulting trust rests upon him who seeks its enforcement, and before a court of equity will be warranted in making a decree therefor the evidence must be clear, unequivocal and decisive.

3. In cases of equitable cognizance the appellate court will examine and weigh the evidence, but the findings and judgment of the trial court will not be disturbed on appeal unless it appears that such findings and judgment are clearly against the weight of the evidence.

Nesbitt & Nesbitt and H. G. E. Beauchamp, of Miami, and Thompson & Roberts, of Joplin, Mo., for plaintiffs in error.

A. C. Wallace, John R. Wallace and Ben T. Owens, of Miami, for defendant in error.

GIBSON, Justice.

Plaintiffs are the only children of W. H. Gaines, deceased, and defendant is the mother of deceased. In plaintiffs' petition it is alleged that prior to June 6, 1942, W. H. Gaines was the owner of an undivided one-seventh interest in a partnership known as 'Gaines Brothers', and on said date he executed and delivered a written assignment transferring and conveying his entire undivided interest in said partnership and its assets to defendant. That concurrently with the execution of the assignment it was verbally agreed between the parties that defendant would hold said interest for the benefit of the assignor, during his lifetime, and for the plaintiffs, his children, after his death. Plaintiffs prayed judgment declaring that defendant held title to said interest for the sole use and benefit of plaintiffs as cestui que trust and that she be ordered to convey the interest to plaintiffs.

At the conclusion of the trial the court made extended findings of fact and conclusions of law and entered judgment holding that the allegations of plaintiffs' petition were not supported by the evidence and the plaintiffs take nothing and awarding costs to defendant. Plaintiffs appeal.

Numerous assignments of error are presented under three propositions in plaintiffs' briefs.

It is first said that the court erred in admitting, over plaintiffs' objections, the testimony of A. L. Commons, who prepared the assignment as Gaines' attorney and the testimony of Commons' stenographer who typed the instrument. Both witnesses testified as to statements made by deceased during the preparation of the assignment to the effect that he had already taken care of his children; that they had cost him a lot of money and that he desired to make the assignment as a gift to his mother, who was getting up in years, and that he wanted to take care of her.

Plaintiffs say that admission of this testimony was error under Tit. 12 O.S.1951 § 385, which provides: 'The following persons shall be incompetent to testify: * * * 4. An attorney, concerning any communications made to him by his client, in that relation, or his advice thereon, without the client's consent.'

Plaintiffs say that when the privilege has not been waived, the incompetency of an attorney as a witness has been uniformly recognized by this court, and cite Jayne v. Bateman, 191 Okl. 272, 129 P.2d 188; Wolverine Oil Co. v. Parks, 79 Okl. 318, 193 P. 624; Brown v. State, 9 Okl.Cr. 382, 132 P. 359; Pearson v. Yoder, 39 Okl. 105, 134 P. 421, 48 L.R.A.,N.S., 334; Evans v. State, 5 Okl.Cr. 643, 115 P. 809, 34 L.R.A.,N.S., 577. The cited cases are inapplicable because of factual differences. An attorney is not an incompetent witness in all cases. This statutory rule on privilege, like other rules, has its exceptions.

In the case of In re Wilkins' Estate, 199 Okl. 249, 185 P.2d 213, we held that an attorney who prepared a will and signed it as an attesting witness is not prohibited from testifying for the reason that decedent made his will with knowledge that it was to be published and that he impliedly consents that his attorney may testify in order to establish the fact that the will expressed his wishes.

In the instant case decedent, after execution of the assignment, immediately published the same by mailing copies to the other partners, and he acknowledged the instrument so that it could have been recorded.

The parties all claim under the assignment of W. H. Gaines, a deceased person; the mother asserting that the assignment was an absolute conveyance, without limitation, while plaintiffs claim under the same assignment, asserting that it was given under such circumstances as to create a resulting trust in their favor. Under such circumstances the true rule with reference to privilege is stated in 70 C.J. 438, § 587, as follows:

'It is generally considered that the rule of privilege does not apply in litigation, after the client's death, between parties, all of whom claim under the client; and, so, where the controversy is to determine who shall take by succession the property of a deceased person and both parties claim under him, neither can set up a claim of privilege against the other as regards the communications of deceased with his attorney.'

'In a contest between heirs or next of kin, communications of the ancestor to an attorney who drew a will or similar document are not privileged.' Glover v. Patten, 165 U.S. 394, 17 S.Ct. 411, 41 L.Ed. 760.

We find no error in the ruling of the trial court that the attorney who drew the assignment was a competent witness, and the same ruling would apply to the competency testimony of the attorney's secretary.

The remaining contentions of ...