In re Layman's Will

• Decision Date: 22 April 1889
• Citation: 42 N.W. 286,40 Minn. 371
• Parties: IN RE LAYMAN'S WILL.
• Court: Minnesota Supreme Court

40 Minn. 371

42 N.W. 286

IN RE LAYMAN'S WILL.

Supreme Court of Minnesota.

April 22, 1889.

(Syllabus by the Court.)

1. Under the statutes of this state, (sections 15-17, Gen. St. 1878,) the burden of establishing the sanity of a testator is upon him who offers the will for probate.

2. This view of the statute does not necessarily change the common practice, whereby the proponent first makes out a prima facie case, the contestant then introducing evidence of insanity, leaving to proponent the privilege of again submitting testimony as to the testator's soundness of mind.

3. Upon the trial of an appeal from an order admitting a will to probate, an attorney at law, who had been the legal adviser of the testator, was permitted to disclose communications made to him by the deceased in his life-time, upon business matters, and the advice and counsel given thereon. The object of the testimony was to lay a foundation for the admission in evidence of the opinion of said attorney as to the sanity of the testator, and there was nothing in the testimony which in any manner reflected upon the character or reputation of the deceased. Held, that the contestant, who was one of the heirs at law of the deceased, could not be permitted to exclude such testimony by invoking the rule of privileged communications.¹

Appeal from district court, Hennepin county; YOUNG, Judge.

Martin Layman, a resident of Hennepin county, having, as alleged, died testate, a petition was filed in the probate court of said county, praying that his will might be proved, and letters of administration granted. Thereafter Lizzie Haley, one of the heirs of decedent, and the contestant herein, filed a protest against admitting the will to probate, on the ground that decedent, at the time the will was executed, was of unsound mind, and mentally incapable of making a will; that he was induced to sign the alleged will by fraud and undue influence; and that for these reasons the instrument produced was not the will of decedent. Upon the hearing the will was admitted to probate. The contestant thereupon appealed to the district court, the objections made in the probate court being framed and submitted to the jury as questions of fact. Upon the trial, for the purpose of proving decedent's sanity, R. W. Laing, who drew the will in controversy, and who, up to the time of the death of decedent, was his attorney, was permitted to testify, over contestant's objection, as to certain communications made to Laing by decedent. Verdict for proponents sustaining the will. From an order denying a new trial contestant appeals.

Hart & Brewer, for appellant.

Wilson & Lawrence and R. W. Laing, for respondents.

COLLINS, J.

But two questions are presented for our consideration upon this appeal: First. Did the trial court err in admitting certain testimony of the witness Laing, objected to by the contestant on the ground that it was incompetent and inadmissible, by reason of section 10, c. 73, Gen. St. 1878? Second. Did the court err in charging the jury that the burden of proof was upon the contestant, and that she must show by a preponderance of testimony the loss or absence of the mental capacity required by statute to make a will?

The principal question in this case seems to have been as to the sanity of the deceased when he executed the instrument offered for probate, and alleged by the proponents to be his last will and testament. The witness Laing was an attorney at law, and had prepared the will in question. He had also served the decedent in other matters as his legal adviser. In this way he had acquired some knowledge of the mental condition of the deceased, and was more or less qualified to express an opinion as to his sanity. Under the rule laid down in the Pinney Will Case, 27 Minn. 280,6 N. W. Rep. 791, and 7 N. W. Rep. 144, that a non-expert must first disclose the facts upon which his opinion may be predicated before he can be allowed to express one upon the question of soundness of mind, the witness stated his professional connection with the testator for quite a period of time before his death, including the day upon which the will was drafted and signed, and also testified that he had many conversations with him, always upon legal business. He was then permitted, the contestant objecting, to narrate the details of the business which was transacted, what the deceased counseled the witness about, what he said, and what advice and counsel he was given by the attorney. The full particulars of one or two interviews, in no manner connected with the making of the will, were related to the jury. These communications between the decedent and his attorney were privileged at common law as well as by statute, the object of the rule being the protection of the client and his estate. And while many textwriters assert emphatically that...