Kern v. Kern

• Decision Date: 09 January 1900
• Docket Number: 18,720
• Citation: 55 N.E. 1004,154 Ind. 29
• Parties: Kern v. Kern et al
• Court: Indiana Supreme Court

55 N.E. 1004

154 Ind. 29

Kern v. Kern et al

No. 18,720

Supreme Court of Indiana

January 9, 1900

From the St. Joseph Circuit Court.

Reversed.

N. L Agnew, D. E. Kelly and T. E. Howard, for appellant.

A. L Brick and Stuart McKibbin, for appellees.

OPINION

Dowling, J.

This was an action to contest a will. It was tried by the court without the intervention of a jury, and a finding was made in favor of the appellees, who were the defendants below. Over a motion for a new trial the court rendered judgment upon the finding. The contestor appealed, and the decision of the court overruling appellant's motion for a new trial is the error assigned. The contestor was the mother of the testator. The widow and other beneficiaries under the will were the defendants.

The facts set out in the complaint are, in substance, as follows: On the 20th day of September, 1897, Amon S. Kern died in the city of South Bend, St. Joseph county, Indiana, leaving an estate of the value of $ 75,000 in real and personal property, situated in said city of South Bend. He left surviving him no children, and no father, his only heirs at law being his mother, who is the appellant, and his widow, Ella Kern. On the 24th day of September, 1897, an instrument purporting to be the last will and testament of the said Amon S. Kern, and bearing date of April 6, 1890, was admitted to probate in the St. Joseph Circuit Court, in said St. Joseph county, Indiana, then in session. By the terms of said will the whole estate was devised and bequeathed to the widow of the said testator, subject to a residuary bequest to three other relatives, one of whom died without descendants before the said Amon S. Kern. The appellant, as the mother of the said Amon S. Kern, is by law entitled to inherit the undivided one-fourth of his estate, and the said Ella Kern, as the widow of the said Amon S., is entitled to take the undivided three-fourths of his estate, if the said Amon S. Kern died intestate. The supposed will of April 6, 1890, was invalid, and was wrongfully admitted to probate, for the reason that it was revoked by a subsequent will, duly executed in 1894, by the said Amon S. Kern, either expressly or by an inconsistent disposition of his estate. Prayer that the probate be set aside, etc. The complaint was duly verified, and an undertaking for costs was given, as required by the statute.

The defendants appeared, and filed a joint answer in denial. By consent, the cause was submitted to the court, and, as has been stated, the trial resulted in a finding and judgment sustaining the will of 1890.

The grounds of appellant's motion for a new trial were, that the finding was contrary to law, and was not sustained by sufficient evidence, and that certain errors of law occurred on the trial in the rulings of the court in striking out evidence given for the appellant.

On the trial, Andrew Anderson, a witness for appellant, testified that he was a practicing lawyer of South Bend, Indiana; that he was acquainted with Amon S. Kern; that Kern was dead; that some three or four years before the date of the trial Kern came to the office of witness, and said that he wanted to make a will disposing of his estate; that witness thereupon called Mr. Bast, who was his stenographer, and dictated the will to him; that the stenographer brought the will into the front room of the office; that Mr. Kern signed it, and that he (Anderson) and Bast signed it as witnesses. Kern paid witness for his services, and carried the will away with him. Witness never saw it afterwards. Kern lived in South Bend. He owned a store. He was married, and he left as his widow the lady who was his wife when the will was executed.

After proof by another witness that the will drawn by Anderson, and executed by Kern, could not be found after Kern's death, the witness, Anderson, was asked to state the contents of that will. The question was objected to for the reason that the contents of the will were made known to Anderson as a privileged communication, notwithstanding the fact that the attorney became a subscribing witness to the will at the request of the testator. The court, not being prepared to pass upon the question raised by the objection, permitted the witness to state the contents of the will, but held the evidence under advisement. Anderson stated that, in the first part of the will, Kern disposed of all his estate in the following manner. Provision was made for his wife equivalent to one-third of his estate, and, in addition thereto, he gave her the use of the dwelling-house in which he lived; the remainder of the estate was devised to two brothers. The entire estate was given away. He made his brothers his residuary legatees.

Robert W. Bast, the stenographer in the office of Anderson, who took down the will in shorthand and afterwards reduced it to print, and who, also, was a subscribing witness to the will, was asked to state the contents of the will. The question was objected to upon the ground that the communication was a privileged one as to Anderson, the attorney, and that the privilege extended to the knowledge acquired by the witness as the law clerk of Anderson. The objection was overruled, and the witness testified substantially as Anderson had done.

Appellant gave in evidence the will of Amon S. Kern, dated April 6, 1890, with the probate of the same, whereby the testator devised the whole of his estate to his wife, Ella Kern, subject to a residuary interest in one-half of what might remain at her death devised to three nephews. Ella Kern was nominated as sole executrix. Other evidence was introduced by appellant, but it is not necessary that we should set it out.

The plaintiff below having rested, the defendants introduced evidence as to the finding of the will of 1890, and the ineffectual search for the will prepared by Anderson.

At this point, the court announced its decision upon the objections to the testimony of Anderson and Bast, and struck out all of the evidence relating to the contents of the will drawn by Anderson.

The question is presented, whether communications between a testator and his solicitor or attorney, in reference to the testator's will, are privileged after the death of the testator, in a contest between his heirs at law and the beneficiaries under the will.

The statute of this State, in regard to confidential communications made to an attorney in the course of his professional business, and as to advice given in such cases, has not changed the rule of the common law. § 505 Burns 1894, § 497 Horner 1897. This rule does not apply to testamentary dispositions where the controversy is between the heirs and devisees of the testator. In such cases it is said that the very foundation upon which the rule proceeds seems to be wanting. The leading case upon this subject is Russell v. Jackson, 9 Hare 387, in which Lord Justice Turner says, that, "The disclosure in such cases can affect no right or interest of the client. The apprehension of it can present no impediment to the full statement of his case to his solicitor, * * * and the disclosure, when made, can expose the court to no greater difficulty than presents itself in all cases where the courts have to ascertain the views and intentions of parties, or the objects and purposes for which the dispositions have been made."

In Hageman's Priv. Com., § 86, the rule laid down in Russell v. Jackson, supra, is concisely stated thus: "That communications between a testator and his solicitor in reference to the testator's will, are not privileged after the death of the testator: contra as to communications between the same solicitor and the executors."

Russell v. Jackson, supra, is cited with approval in Wharton on Evidence, and, in treating upon the subject of professional privilege, it is said: "The privilege, it should also be remembered, is meant to protect the living in their business relations, and cannot be invoked when the question arises as to the intention of a deceased person in respect to the disposition of his estate." Wharton on Ev. (3rd ed.), § 591.

In Graham v. O'Fallon, 4 Mo. 338, it is said, that an attorney who draws up a will is entirely competent to testify to its contents in order to set it up as a lost will, and his testimony is not subject to the objection that it discloses the confidential communications of a client.

This view of the rule as to such communications, and the competency of the solicitor to testify to them, is sustained by the decisions in the following, among other cases: Blackburn v. Crawfords, 70 U.S. 175, 3 Wall. (U.S.), 175, 18 L.Ed. 186; Scott v. Harris, 113 Ill. 447; Sheridan v. Houghton, 6 Abb. N. Cas. 234, 16 Hun 628; Pence v. Waugh, 135 Ind. 143, 34 N.E. 860; Denning v. Butcher, 91 Iowa 425, 59 N.W. 69; Doherty v. O'Callaghan, 157 Mass. 90, 31 N.E. 726, 17 L. R. A. 188.

It is urged, however, on behalf of the appellee, that this court has held that evidence of this character is inadmissible, and we are referred to the cases of Gurley v. Park, 135 Ind. 440, 35 N.E. 279, Pence v. Waugh, supra, Brown v. McAlister, 34 Ind. 375, and Turner v. Cook, 36 Ind. 129, as authorities supporting this view.

Gurley v. Park, supra, was an action to set aside a will on account of the unsoundness of the mind of the testatrix, and because its execution was procured by undue influence. The court say, on page 442: "In Heuston v. Simpson, 115 Ind. 62, 17 N.E. 261, it was said: 'The law forbids the physician from disclosing what he learns in the sick room, no matter by what method he acquires his knowledge.' See other authorities cited in the same case; also Pennsylvania Co. v. Marion, 123 Ind. 415, 23 N.E. 973.

"For a similar reason the evidence offered by the attorney who...