Stoddard v. Kendall
| Citation | 119 N.W. 138,140 Iowa 688 |
| Parties | SARAH STODDARD, Appellee, v. N. A. KENDALL, Appellant |
| Decision Date | 14 January 1909 |
| Court | United States State Supreme Court of Iowa |
Appeal from Tama District Court.--HON. C. B. BRADSHAW, Judge.
ACTION in equity for partition of real estate. Decree as prayed by plaintiff, and the defendant appeals.--Affirmed.
Decree affirmed.
Struble & Stiger, for appellant.
J. R Caldwell, for appellee.
On July 29, 1903, Sanford G. Kendall died intestate, seised of a certain tract of land or town lot which constituted his homestead in the city of Tama, Iowa. Said deceased left surviving him his widow, Ruth M. Kendall, and certain lineal descendants, among whom were a daughter, Sarah Stoddard, the plaintiff in this action, and a son, N. A Kendall, who is one of the defendants and appellant herein. Neither the widow nor any other person entitled so to do applied for or took any steps to secure administration upon the estate of the deceased, and the same has never in fact been administered upon. Indeed, it is not shown that said deceased left any estate or property except said homestead. From the death of said intestate the widow continued to occupy, use and control the homestead until April 28, 1906 at which date she died testate. Her will, which bears the date October 31, 1903, and has been duly probated, makes specific bequests to each of her children and grandchildren except a son N. A. Kendall, for whom it provides as follows: After the death of said Ruth M. Kendall, the daughter, Sarah Stoddard, began this action for the partition of the homestead between the heirs of her father, Sanford G. Kendall, alleging that he died intestate, seised of said homestead property, and that his widow elected to take and enjoy a homestead right therein in lieu of a distributive share, and that the same, therefore, descended to his heirs or their representatives in equal shares.
The defendant N. A. Kendall denies that the widow ever elected to take a homestead right in the property in lieu of a distributive share, and alleges that, upon the death of her husband, she became vested with title to an undivided one third of said property, and that, upon her death, such interest passed to himself under the residuary clause of his mother's will above quoted. On trial to the court, it was shown without substantial controversy that from the death of her husband in July, 1903, to her own death in April, 1906, the widow continued in full occupancy and control of the property as a homestead; neither paying nor accounting to anyone for rents or profits. At the time of executing her will, she spoke of the home property to the lawyer, J. W. Willett, who prepared the instrument, saying: It should be noted, also, that the will executed by her, while describing specifically other property of which she unquestionably died seised or possessed, makes no mention of the property in controversy, and, if it passed to the defendant at all, it must be by virtue of the general language used in the residuary clause. The trial court found for the plaintiff that the widow had elected to take a homestead right in the property, and that the entire fee therein descended to the heirs of Sanford G. Kendall.
It is first argued that the court erred in admitting the testimony of Mr. Willett. The objection, we think, is untenable. The mere fact that the person offered as a witness is an attorney at law does not render it improper for him to relate statements or communications made to him by another, nor is the fact that the person whose statements are sought to be proven was a client of said lawyer at the time the communication was made sufficient in itself to exclude the testimony of the latter concerning it. That which the statute forbids is a disclosure of "confidential communications" properly intrusted to him in his professional capacity and necessary and proper to enable him to discharge the functions of his office, according to the usual practice and discipline. Code, section 4608. The preparation of wills, though appropriately and commonly done by lawyers, is by no means exclusively confined to members of the profession. It may be done, and frequently is done, by persons in every rank and vocation of life. It is in many respects essentially the work of a scrivener. If a lawyer be employed in such service, the testator may ask at his hands legal advice and intrust him with confidential information to which without doubt the protection of the statute would apply, but the mere fact that the lawyer was engaged in preparing a will at or about the time a given statement was made--and that is all we have in the case before us--does not necessarily give it a confidential character. Mueller v. Batcheler, 131 Iowa 650, 109 N.W. 186, and cases there cited. See, also Blackburn v. Crawford, 70 U.S. 175 (18 L.Ed. 186). In short, a communication made at such a time may or may not be privileged, according to its nature; and, if upon its face it bears no indication of being a communication of a confidential nature, and there be no other fact or circumstance tending...
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