In re Young's Estate

• Decision Date: 05 March 1908
• Docket Number: 1866
• Citation: 33 Utah 382,94 P. 731
• Parties: In re YOUNG'S ESTATE
• Court: Utah Supreme Court

94 P. 731

33 Utah 382

In re YOUNG'S ESTATE

No. 1866

Supreme Court of Utah

March 5, 1908

APPEAL from District Court, Utah County; Jno. E. Booth, Judge.

Proceedings in the matter of the estate of Branch Young. From a judgment sustaining the will, contestants appeal.

REVERSED, AND NEW TRIAL ORDERED.

Samuel A. King and Wm. H. King for appellants.

Grant C. Bagley and Thurman, Wedgwood & Irvine for respondents.

FRICK J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

This proceeding was begun in the district court of Utah county to establish a writing purporting to be the last will and testament of Branch Young, deceased. Objections were filed to the allowance of the proposed will by some of the children of the deceased upon the ground that it was made under coercion duress, and undue influence, which were alleged to have been exerted upon the mind of the deceased by his wife, who was a beneficiary named in the will, and that such undue influence was exerted at a time when the testator was old, infirm, and of feeble mind.

On the hearing of the contest before the court the protestants called as a witness one A. B. Morgan, an attorney at law, who prepared the proposed will under the directions of the deceased. The witness testified that while the will was being prepared he had several conversations with the deceased and his wife concerning the provisions contained therein; that the deceased at the time presented to the witness a former will which had not been formally executed; that there was some change made in the bequests by the new will; that the witness had prepared several wills at the request of the deceased immediately preceding his death, and that his wife, one of the principal beneficiaries of the proposed will, was present and took part in a number of conversations between the witness and the deceased with respect to the proposed will. The protestants then propounded some questions to the witness in which they asked him to state how many wills he had prepared for the deceased; what was said by the deceased with respect to the changes that were made in the proposed will as compared with the former one; and to state what was said by the witness, the deceased, and the wife of the deceased with regard to the proposed will. The witness refused to answer upon the ground that all the matters inquired about were privileged. The court sustained the witness with regard to all statements made by the witness and the deceased, both with respect to the former and the proposed will, and denied the request of the proponents to require the witness to answer, except as to statements the wife may have made. The witness however said that he could not select from the conversations all the matters stated by the wife without also disclosing some things said by the deceased, and refused to answer, over the protestants' objections. The court did not compel the witness to answer, but, in effect, permitted him to determine for himself when any statement made by the wife could or could not be answered without violating the privilege. During the hearing it was also made to appear that the former will was either lost or destroyed, and that the witness had read it and knew in a general way at least the contents thereof. For the purpose of showing that some changes had been made in the proposed will in some of the bequests, and what those changes were, the proponents asked the witness to state the contents of the former will in that regard. This testimony sought to be elicited was excluded by the court as privileged, to which rulings of the court contestants duly excepted. Judgment was entered sustaining the will, from which the protestants have appealed, and now present the foregoing, among other matters, for review. The contestants contend that the matters inquired about were not privileged, and assign the rulings of the court as error.

One question presented for review is, to what extent does the privilege between attorney and client prevail where the question arises in a will contest after the death of the client? Is the privilege the same in such a case as it is between an attorney and client with respect to all other matters arising before or after the death of the client? Subdivision 2 of section 3414, Revised Statutes 1898, so far as material to the present inquiry, provides as follows: "An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given therein in the course of professional employment." It will be observed that, under the foregoing provision, the privilege therein given, as at common law, is purely personal, and belongs to the client. If the client waives the privilege, neither the attorney nor any one else may invoke it. It is likewise apparent that the privilege given by the statute is simply declaratory of that existing at common law. Without this statute, therefore, in view of section 2488, Revised Statutes 1898, in which the common law of England is adopted, the privilege would exist and be in force in this state. The mere fact that the common-law privilege is declared in statutory form does not extend the scope of its operation. The material question, therefore, is, did the privilege at common law extend to will contests between heirs of the deceased ancestor, where the issues of duress, undue influence, or insanity are involved?

Prof. Wigmore, in his work on Evidence, vol. 4 section 2314, in concluding a discussion of the question of privilege, as applicable to an attorney and client in cases of will contests, states the rule as follows:

"But for wills a special consideration comes into play. Here it can hardly be doubted, that the execution and especially the contents are impliedly desired by the client to be kept secret during his lifetime, and are accordingly a part of his confidential communications. It must be assumed that during that period the attorney ought not to be called upon to disclose even the fact of a will's execution, much less its tenor. But, on the other hand, this confidence is intended to be temporary only. That there may be such a qualification to the privilege is plain. That it appropriately explains the client's relation with an attorney drafting a will seems almost equally clear. It follows, therefore, that after the testator's death the attorney is at liberty to disclose all that affects the execution and tenor of the will. The only question could be as to communications tending to show the invalidity of the will, i. e., from which a circumstantial inference could be drawn that the testator was insane or was unduly influenced. It may be conceded that the testator would not wish the attorney to assist in any way the overthrow of the will. But the answer is that such utterances were obviously not confidentially made with reference to the secrecy of the fact of insanity or undue influence, for the testator of course did not believe those facts to exist, and therefore could not possibly be said to have communicated them. As to the tenor and execution of the will, it seems hardly open to dispute that they are the very facts which the testator expected and intended to be disclosed after his death; and, with this general intention covering the whole transaction, it is impossible to select a circumstance here or there (such as the absence of one witness in another room) and argue that the testator would have wanted it kept secret if he had known that it would tend to defeat his intended act. The confidence is not apportionable by a reference to what the testator might have intended had he known or reflected on certain facts which now bear against the will."

The Supreme Court of Iowa, in a well-considered case, entitled Winters v. Winters, 102 Iowa, in speaking of the privilege, at page 57, 71 N. W., at page 185 (63 Am. St. Rep. 428) says:

"At common law, confidential communications to a physician were not privileged, and they are only so made by statute. Those to an attorney, however, were privileged, and it was held that the attorney might not divulge without the consent of the client while living, but that, after his death, in a contest between a stranger and an heir, devisee, or personal representative, the latter might waive the privilege and examine the attorney concerning the confidential communications, though the stranger was not permitted to do so; and in a controversy between heirs at law, devisees, and personal representatives, the claim that the communication was privileged could not be urged, because, in such a case, the proceedings were not adverse to the estate, and the interest of the deceased, as well as of the estate, was that the truth be ascertained."

In the following cases the doctrine of privilege between an attorney and client is discussed, and it is held that communications or statements made by the deceased to the attorney preparing the will with respect to the subject-matter thereof and what the attorney heard or saw with respect thereto do not fall within the privilege: Scott v Harris, 113 Ill. 447; Doherty v. O'Callaghan, 157 Mass. 90, 31 N.E. 726, 17 L. R. A. 188, 34 Am. St. Rep. 258; Glover v. Patten, 165 U.S. 394, 17 S.Ct. 411, 41 L.Ed. 760; O'Brien v. Spalding, 102 Ga. 490, 31 S.E. 100, 66 Am. St. Rep. 202; Graham v. O'Fallon, 4 Mo. 338; In re Semper's Estate, 82 Minn. 460, 85 N.W. 217; McMaster v. Scriven, 85 Wis. 162, 55 N.W. 149, 39 Am. St. Rep. 828; Blackburn v. Crawford, 3 Wall. (U.S.) 175, 18 L.Ed. 186; 3 Jones, Ev., section 773; 2 Rice, Ev., pp. 649-651; In re Layman's Will, 40 Minn. 371, 42 N.W. 286. In some of the cases a distinction is sought to be made between a protestant and a contestant of a will, and it is accordingly held that the privilege does not...