In re Wunsch's Estate

• Citation: 177 Minn. 169,225 N.W. 109
• Decision Date: 12 April 1929
• Docket Number: No. 27148.,27148.
• Parties: In re WUNSCH'S ESTATE. Appeal of WUNSCH.
• Court: Minnesota Supreme Court

225 N.W. 109

177 Minn. 169

In re WUNSCH'S ESTATE.

Appeal of WUNSCH.

No. 27148.

Supreme Court of Minnesota.

April 12, 1929.

Appeal from District Court, Stevens County; S. A. Flaherty, Judge.

Proceeding by Albert W. Wunsch to have one-seventh of the residue of the estate of William Wunsch, deceased, assigned to him. Decisions adverse to petitioner were made in the probate court and in the district court. From an order of the district court denying his motion for a new trial, petitioner appeals. Affirmed.

A. L. Hokenson, Fred Jensen, and Schwartz & Halpern, all of Minneapolis, for appellant.

S. S. Flaherty, of Morris, and F. C. Anderson, of Herman, for respondent.

HOLT, J.

Appellant petitioned the probate court in the estate of William Wunsch to have one-seventh of the residue of the estate assigned to him on the ground that his grandfather, the deceased, had omitted to provide for him in his will. The petition was denied, and, on appeal to the district court, the finding was made that the testator omitted to provide in his will for appellant, but that said omission was intentional and was not occasioned by any accident or mistake. From an order denying his motion for a new trial this appeal is prosecuted.

We see no merit in the refusal to have the issue submitted to a jury. It was properly a court case. The fact that a son of the judge appeared for the respondents furnished no legal ground for submitting the issue to a jury, nor for the requested change of venue, or the calling for another judge to try the case, first made when it was reached for trial. There is one judge only in the judicial district in question, and the provision (section 9221, G. S. 1923) for filing an affidavit of prejudice was not available to appellant.

The appeal raises two questions: (a) Was evidence of the attorney who drew and witnessed the will properly received? and (b) Is the evidence sufficient to sustain the finding that the testator intentionally omitted appellant from the will? It appears that the deceased came to Judge Beise and instructed him to draw the will. According to such instructions the will was drawn and a day or two thereafter it was executed, Judge Beise being one of the attesting witnesses. At this trial Judge Beise was called by the executrices of the estate and after testifying that he prepared the will and that the deceased gave him data and instructions he was asked this question: "And at that time, did he have any conversation with you relative to whether or not it would be necessary for him to include in his will the name of Albert Wunsch, or either of the sons of Albert Wunsch? Objected to on the ground that it is incompetent. A conversation by a client to an attorney, which is privileged testimony, cannot be given without consent of the client." The objection was overruled. It may be doubtful whether this objection covers some of the nice distinctions which appellant's attorney seems to urge that the conversation called for did not take place at the moment the will was signed and attested. Whatever was said by decedent was to enable Beise to prepare the will so as to dispose of testator's property to those he had determined should have it. It was a necessary part of making his will since he did not undertake to draw it himself.

In this state it is settled that oral testimony is competent to prove intentional pretermission. Section 8745, G. S. 1923; Whitby v. Motz, 125 Minn. 40, 145 N. W. 623, 51 L. R. A. (N. S.) 645, and cases therein cited. We take the rule to be established in this court that an attorney who prepares and attests a will is by his client, the testator, impliedly authorized to testify as to communications touching the will whenever its validity and effect are questioned in court. Here appellant asserts that one-seventh of the estate is not to be disposed of as the will directs.

In Layman's Will, 40 Minn. 371, 42 N. W. 286, the court, speaking of the secrecy enjoined by subdivision 2, § 9814, G. S. 1923, says: "The object of the rule, so far as it relates to this class of communications, being the protection of the estate, there remains no reason for continuing it when the very foundation upon which it proceeds is wanting." And the attorney who had drawn the will over objection on the ground of privilege was held to have been properly permitted to testify as to communications with his client, the testator. This case was followed in Coates v. Semper, 82 Minn. 460, 85 N. W. 217.

With respect to a similar provision (subdivision 4, § 9814) relating to information received by a physician from his patient this court held the representative of the patient, he being dead, could waive the privilege, saying "Upon principle and what seems to be the weight of judicial authority, we hold that the statute in question is for the protection of the patient, and he may waive the privilege if he sees fit, and that, as a general rule, those who represent him after his death may also waive the privilege, for the protection of interests which they claim under him." Olson v. Court of Honor, 100 Minn. 117, 110 N. W. 374, 8 L. R. A. (N. S.) 521, 117 Am. St. Rep. 676, 10 Ann. Cas. 622.

In Glover v. Patten, 165 U. S. 394, 17 S. Ct. 411, 41 L. Ed. 760, the court said: "But whatever view be taken of the facts, we are of opinion that, in a suit between devisees under a will, statements made by the deceased to counsel respecting the execution of the will, or other similar document, are not privileged. While such communications might be privileged, if offered by third persons to establish claims against an estate, they are not within the reason of the rule requiring their exclusion, when the contest is between the heirs or next of kin." In the opinion is found this quotation from Blackburn v. Crawford, 3 Wall. 175, 18 L. Ed. 186: "The client may waive the protection of the rule. The waiver may be express or implied. We think it as effectual here...