In re Seip's Estate

• Decision Date: 01 October 1894
• Docket Number: 118
• Citation: 163 Pa. 423,30 A. 226
• Parties: Catharine Seip's Estate. Lydia Probst's Appeal
• Court: Pennsylvania Supreme Court

30 A. 226

163 Pa. 423

Catharine Seip's Estate. Lydia Probst's Appeal

No. 118

Supreme Court of Pennsylvania

October 1, 1894

Argued January 30, 1894

Appeal, No. 118, July T., 1893, from decree of O.C. Lehigh Co., distributing decedent's estate. Reversed.

Exceptions to auditor's report. Before ALBRIGHT, P.J.

The auditor, E. J. Litchtenwalner, Esq., found among others the following facts:

"George Probst, of the city of Allentown, in said county, died on or about February, 1885, testate. Christiana Knauss, Catharine Seip and Lydia Probst were half-sisters of the said George Probst, and the only half-sisters of George Probst then living. The will of George Probst was probated by the register of wills of Lehigh county. After the will was probated, Nathan Seip engaged John Rupp and T. Metzger Esqs., as counsel for Catharine Seip, his wife, and Christiana Knauss, for the purpose of contesting the will of George Probst, deceased. A petition was then signed and sworn to by Catharine Seip and Christiana Knauss, and presented to the register of wills of Lehigh county, asking for a revocation of the letters testamentary. This was refused by the register of wills, and an appeal was taken to the orphans' court of Lehigh county, and an issue asked for. After the appeal was taken, an examiner was appointed by the court to take testimony, and a number of witnesses were examined. The report of the examiner was filed in court, and the issue was refused. An appeal was taken by Catharine Seip and Christiana Knauss to the Supreme Court. Paper-books were prepared. The case was argued in the Supreme Court February 1886, by Messrs. Rupp and Metzger, Esqs., counsel for the contestants, and by Hon. Edward Harvey, counsel for the proponents. In October, 1886, the Supreme Court reversed the decree of the court below, and awarded an issue. An issue was framed in the Court of Common Pleas of Lehigh county, to No 28, Nov. T., 1886, in which Catharine Seip and Christiana Knauss were plaintiffs, and the executor of George Probst, deceased, and the legatees and persons in interest were defendants. Lydia Probst's name appeared on record as one of the defendants. Several days before the day fixed for the trial of the issue a settlement was effected. The amount to be paid to the contestants was $10,000 and costs. A jury was called in pursuance of the settlement, no evidence was submitted, and a verdict sustaining the will was rendered. The $10,000 was paid by check payable to the order of John Rupp and T. B. Metzger, Esqs., on December 13, 1865. The $10,000 was deposited in the Second National Bank of Allentown, Pa., to the account of Thomas B. Metzger and John Rupp, attorneys.

"Nathan Seip engaged Messrs. Rupp and Metzger as counsel to contest the will of George Probst, deceased, and paid them a retainer fee. From the inception to the conclusion of the will contest the counsel had all the consultations with Nathan Seip; Mrs. Catharine Seip and Mrs. Knauss were not consulted by the counsel directly, and were only seen by them once or twice during the progress of the contest, at the time when they were examined as witnesses and when the final papers as to the settlement were executed. Nathan Seip consulted the counsel in reference to the appeal to the Supreme Court, made the contract for the printing of the paper-books, and paid counsel fees. Nathan Seip told Mr. Rupp, one of the counsel, at the beginning of the will contest and during the progress thereof, that he was representing Catharine Seip, his wife, and Christiana Knauss in the George Probst will contest, and that the contest was carried on for the benefit of Catharine Seip, Christiana Knauss and Lydia Probst, the three half-sisters of George Probst, deceased; that they were to share equally in the proceeds recovered by the will contest, and were to contribute towards the expenses incurred.

"In the issue framed in the George Probst will contest in the Court of Common Pleas of Lehigh county, (No. 28, Nov. T., 1886,) Catharine Seip and Christiana Knauss were the only parties on record as plaintiffs, and Lydia Probst was named as one of the defendants on record. Lydia Probst did not contribute anything towards the expenses incurred in the will contest. After a settlement was effected and the $10,000 paid to the counsel for the contestants, the money was deposited in the Second National Bank of Allentown, to the credit of Thos. B. Metzger and John Rupp, attorneys. After deducting counsel fees the money was distributed at the direction of Nathan Seip, and checks drawn in the following amounts to the following persons, viz: $2,100 payable to the order of Catharine Seip; $2,100 payable to the order of Christiana Knauss; and $600 payable to the order of Edwin Kemp, he having contributed towards the expenses of the will contest; Nathan Seip directed a check to be drawn to his order. This left $2,000, which was the amount fixed upon as the share of Lydia Probst; she not having contributed towards the expenses, her share was to be $100 less than her sisters'. Counsel refused to draw a check payable to the order of Lydia Probst, as she was not a party on record as plaintiff, and then it was arranged between the counsel and Nathan Seip to draw a check for $2,000, payable to the order of Catharine Seip and Christiana Knauss. This was done, and the check was afterwards indorsed by the payees and Nathan Seip, who was the last indorser, and either got the money from bank or credit therefor. Several days afterwards Nathan Seip complained to the counsel that their fees were too high, and Messrs. Rupp and Metzger drew their individual checks for $200 each, payable, one to the order of Catharine Seip, and one to the order of Christiana Knauss. Both checks were handed to Nathan Seip.

"During the progress of the George Probst will contest, and at the time the settlement was consummated and the money paid to the counsel of the contestants, Nathan Seip attended to the business affairs of Lydia Probst, the claimant, receiving money for her and paying bills, and the check whereon the claim is made was drawn to the order of Christiana Knauss and Catharine Seip, and by them indorsed, and then indorsed by Nathan Seip, who drew the cash from the Second National Bank of Allentown, or deposited the amount to his credit.

"Lydia Probst told Alvin B. Knauss, the accountant, since the death of Catharine Seip, that she, Lydia Probst, did not contribute anything towards the expenses of the George Probst will contest, and did not expect to get anything, until Edward, George and Dr. A. P. Fetherolf told her she had a share to get from the settlement of the will contest, and that they would get the money for her.

"At the time the George Probst will contest settlement was being negotiated, Nathan Seip told Mr. Harvey, the counsel for proponents, 'you know we did not get much, the lawyers took as much as they wanted, and the balance had to be divided among the three sisters, and we have to give Kemp something. There are other parties interested than my wife and Mrs. Knauss. Lydia Probst is in with us, and we must take care of her.'"

The auditor refused to allow the claim of Lydia Probst, citing: Brig Odorilla v. Baizley, 128 Pa. 283; Early v. Rolfe, 95 Pa. 58; Milligan v. Davis, 49 Iowa 126; Ewell's Evans on Agency, 22; 1 Wait's Actions and Defences, 219, 469; Telephone Co. v. Thompson, 112 Pa. 118; Sahms v. Brown, 4 Pa. C.C.R. 488; Martin v. Rutt, 127 Pa. 380; Burrell Twp. v. Uncapher, 117 Pa. 353; McBride's Ap., 72 Pa. 480; Act of May 25, 1887, P.L. 158, § 5; 1 Whart. Ev., pp. 576-8, 582, 585; 1 Greenl. Ev. §§ 237, 240, 243; Kaut & Reineman v. Kessler, 114 Pa. 603; Hill's Est., 9 Phila. 355; 19 A. & E. Ency. L. 134, 135; Bennett's Est., 8 W.N. 287; Moore v. Bray, 10 Pa. 519; Beltzhoover v. Blackstock, 3 Watts, 20; 1 Coveney v. Tannahill et al., 1 Hill, 33.

Exceptions to the auditor's report were dismissed.

Errors assigned were dismissal of exceptions to auditor's report, quoting them; and disallowance of appellant's claim.

The decree appealed from is reversed, the record remitted, and a procedendo awarded.

Marcus C. L. Kline, John Rupp with him, for appellant. -- The testimony of Mr. Rupp was competent: Heft v. Ogle, 127 Pa. 249; Hamill v. Supreme Council, 152 Pa. 542; Martin v. Anderson, 21 Ga. 301; Brown v. Payson, 6 N.H. 443; Gower v. Emery, 18 Me. 79: Beckwith v. Benner, 6 Car. & P. 681; Heister v. Davis, 3 Yeates, 4; Johnson v. Daverne, 19 Johns. 134; McTavish v. Deming, Anth. N.P. 155; 1 Wait's Actions and Defences, 472; Beeson v. Beeson, 9 Pa. 279; Levers v. Van Buskirk, 4 Pa. 309; 1 Whart. Ev. 563; Gillard v. Bates, 6 M. & W. 547; Anesly v. Anglesea, 11 How. St. Tr. 1220; 19 A. & E. Ency. L. 136; Cobdin v. Kendrick, 4 T.R. 432.

The rule has been strictly held that a communication made by a client to his attorney, not for the purpose of asking his legal advice, but to obtain information as a matter of fact, is not privileged, and may be disclosed by the attorney, if called as a witness in a cause: Bramwell v. Lucas, 2 B. & C. 745; Hatton v. Robinson, 14 Pickering, 416; De Wolf v. Strader et al., 26 Ill. 230; Earle v. Grout, 46 Vt. 113; Childs v. Delany, 1 N.Y.S.C. 506; 1 Wait's Actions and Defences, 469.

Where two parties select the same attorney, and make their communications in the presence of each other, in regard to the same subject-matter, each party waives his right to regard those communications as confidential, and, in asserting their rights under the contract, each is entitled to a disclosure of its stipulations: Parish v. Gates, 29 Ala. 254; Goodwin Gas Stove & Meter Co.'s Ap., 117 Pa. 514.

Continuous acts performed by an alleged agent in and about the business of his alleged principals, and their recognition of...