In re Estate of Bayer

• Decision Date: 26 March 1928
• Docket Number: 26318
• Citation: 218 N.W. 746,116 Neb. 670
• Parties: IN RE ESTATE OF THOMAS BAYER. v. ANTON M. BAYER ET AL., APPELLEES ANNA HAMILTON ET AL., APPELLANTS,
• Court: Nebraska Supreme Court

218 N.W. 746

116 Neb. 670

IN RE ESTATE OF THOMAS BAYER.

ANNA HAMILTON ET AL., APPELLANTS, v. ANTON M. BAYER ET AL., APPELLEES

No. 26318

Supreme Court of Nebraska

March 26, 1928

APPEAL from the district court for Kearney county: WILLIAM A DILWORTH, JUDGE. Reversed.

REVERSED.

Lewis C. Paulson, for appellants.

C. P Anderbery and King & Bracken, contra.

Heard before GOSS, C. J., ROSE, GOOD, THOMPSON, EBERLY and HOWELL JJ., and REDICK, District Judge.

OPINION

EBERLY, J.

This action was originally commenced by Anna Hamilton in the county court of Kearney county, Nebraska, by filing a petition therein to probate an instrument alleged by her to be the last will of Thomas Bayer, deceased. Notice of pendency of proceedings was given by publication in the manner provided by law. Certain objections were filed by a brother and two sisters of the proponents. The trial which followed resulted in a decree in the county court admitting the instrument to probate. The contestants appealed to the district court. By stipulation it was there agreed that the cause should be "tried in the district court upon the pleadings filed in said cause in the county court as included in the transcript on file therein." No guardian ad litem had been applied for or appointed by the county court. Neither was there any subsequent application made by way of the parties to be relieved from the terms of the stipulation above quoted. The trial in the district court resulted in a judgment determining that the instrument offered was not the last will and testament of the deceased. From this decree Anna Hamilton and John Bayer et al. have appealed.

The first question presented here is, that the failure of the district court to appoint a guardian ad litem for certain minor appellants who are alleged to be minors constituted reversible error. The question was presented in the form of objections made by the proponents and by the minors involved through and by next friends.

The controlling statutory provision seems to be the following, section 1258, Comp. St. 1922, which provides: "When any will shall have been delivered into or deposited in any probate court having jurisdiction of the same, together with a petition for its probate, such court shall appoint a time and place for proving it"--and give public notice thereof by publication as in the section referred to specified. There is no provision for special service on minors. Neither are there any express requirements in chapter 15 (secs. 1220-1488) Comp. St. 1922, for the appointment of a guardian ad litem for minors in such proceedings. This court has determined that the proceedings in the probate court to settle the estate of a decedent is a proceeding in rem, and every one interested is a party in the probate court whether named or not. In re Estate of Sweeney, 94 Neb. 834, 144 N.W. 902.

Section 8533, Comp. St. 1922, relied upon by appellants, would seem to have no application to this case, because its terms are limited to the requirement that the defense of an infant must be by a guardian ad litem. Assuming the minors in the instant case are parties in interest, the nature of the case and the nature of their rights are such that the necessary steps to maintain them cannot be considered as "a defense." The procedure, if any, required in their behalf, is rather in the nature of an "affirmative action." It is "offensive," not "defensive," in its general nature. Speaking generally, the burden of proof is upon the proponents, and not upon the contestants. It would appear, indeed, that sections 1588 and 8531, Comp. St. 1922, properly construed, authorize and provide for intervention by infants in probate proceedings when deemed necessary or advisable to advance their interests through and by a "next friend." The record before us discloses that this actually occurred in the instant case. Therefore, no error could possibly have been committed in the refusal to appoint a guardian ad litem under the facts as disclosed by the record. This conclusion appears to have the support of the following: "A guardian ad litem need not be appointed in a probate court, if the statutes instituting and regulating the practice in such courts do not require such appointment." 31 C. J. 1120. In the absence of any statutory requirement to that effect, the appointment of a guardian ad litem for infants interested in the probate of a will is unnecessary. Mousseau's Will, 30 Minn. 202, 14 N.W. 887.

The next question presented is as to the admissibility of the testimony of a witness who was an attorney actively engaged in the trial of this case on the part of the contestants, and who had been engaged and consulted by the deceased in his lifetime with reference to the disposition of his property by will. This evidence discloses without question that in 1921 the deceased sent for this attorney and expressed to him in general terms the disposition of his property he desired to make by will, and employed the latter to prepare such instrument. The attorney was then given time to "figure out some way" to accomplish the desired end. A second conference was also held between these parties on the same subject. The attorney being somewhat delayed in executing this commission, he was still later advised by the deceased "to pay no more attention to the employment," that it "was already fixed." The evidence given by this witness in the present case discloses the oral instructions received by him from his deceased client, and the substance of the conversation had between them in relation thereto. This evidence was admitted in the district court over the objections of the proponents of the will, and, if competent, was material in view of the issues then being tried.

It is thought proper at this time to suggest that the canon of professional ethics applicable to the situation before us is: "When an attorney is a witness for his client except as to formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the cause to other counsel. Except when essential to the ends of justice, an attorney should scrupulously avoid testifying in court in behalf of his client." American Bar Ass'n Canons of Ethics (1926) 142, sec. 18. The above has been fully approved by this court. Wilson v. Wilson, 89 Neb. 749, 132 N.W. 401; Cox v. Kee, 107 Neb. 587, 186 N.W. 974.

Under the admitted facts in the record, there can be no question as to the employment of this attorney by the deceased. It has been held: "An attorney, in receiving the directions or instructions of one intending to make a will, although he asks no questions and gives no advice, but simply reduces to writing the directions given to him, still acts in a professional capacity and is prohibited from disclosing any communication so made to him by his client." Loder v. Whelpley, 111 N.Y. 239, 18 N.E. 874.

Indeed, this court is committed to the doctrine that privilege attaches to "statements made to an attorney, with a view to his employment in the litigation in which he is called to testify, * * * even though no fee has been paid and the attorney subsequently refuses a retainer. " Fimple v. State, 104 Neb. 471, 177 N.W. 798.

The essential question presented by the record is, therefore, where an attorney is duly employed and counseled with in reference to drawing a will which was never executed, after such employer's death may such attorney testify to such client's communications thus made while the relation was still in existence? The appellees answer in the affirmative, cite certain authorities, and contend that Brown v. Brown, 77 Neb. 125, 108 N.W. 180, to a limited degree "appears to be the only Nebraska case where this point has been presented or decided." This case, however, discloses that this conclusion hardly is supported by the case cited. It appears in Brown v. Brown, supra, the attorney who drafted the will was also an attesting witness thereto. The ground of the decision of this court appears in the following quotation: "While section 333 of the Code prohibits the disclosure of confidential communications made to a practicing attorney, and certain other classes of professional men, the next section provides that such prohibition may be waived by the party in whose favor it was enacted. When a will is offered for probate, the witnesses thereto may be examined at length as to the mental capacity of the testator, and the facts and circumstances attending its execution. And the testator, by permitting his attorney to become a witness to the will, thereby consented that he might be examined as a witness to such matters after his death." See, also, McMaster v. Scriven, 85 Wis. 162, 55 N.W. 149; Blackburn v. Crawford, 3 Wall. (U. S.) 175, 18 L.Ed. 186; Denning v. Butcher, 91 Iowa 425, 59 N.W. 69; In re Will of Coleman, 111 N.Y. 220, 19 N.E. 71; Daniel v. Daniel, 39 Pa. 191; Western Travelers' Accident Ass'n v. Munson, 73 Neb. 858, 103 N.W. 688.

It is true the opinion also cites approvingly 3 Jones, Law of Evidence, sec. 773. However, the further statement is made in connection with the rule cited: "But it is not necessary to go to that extent in this case, the waiver to be implied from permitting the attorney to attest the will as a witness being sufficient ground for the admission of the evidence in question." Brown v. Brown, supra.

Even in New York where the doctrine on the general subject before us is admittedly opposed to appellees' contention, the doctrine of Brown v. Brown, supra, is approved. In re Will of Coleman, 111 N.Y. 220, 19 N.E. 71. See, also, Knepper v. Knepper, Exr., 103 Ohio St 529, 134 N.E. 476. The conclusion therefore follows that the determining point in the instant case has not been heretofore considered or...