In the Matter of the Probate of the Last Will and Testament of Ellen M. Bennett, Deceased. Flora Gray Smith, Appellant, v. Benjamin F. Ferris and Others, M. Respondents

In the Matter of the Probate of the Last Will and Testament of Ellen M. Bennett, Deceased. Flora Gray Smith, Appellant, v. Benjamin F. Ferris and Others, M. Respondents. Fourth Department, March 3, 1915. Will — revocation — presumption where will cannot be found — evidence — contents of lost will —when communications to attorney not privileged. Where a will which in terms revoked all prior wills was delivered to the testatrix and it cannot be found after her death or its whereabouts accounted for, it is presumed that it was destroyed by her with an intention to revoke it. Where directions for the preparation of a will were given by the testatrix to an attorney in the presence of a third person, her friend, and the will when drawn was read to the testatrix in the hearing of said person,.the attorney after the death of the testatrix is competent to testify both to the execution of the will and to the fact that it contained a clause revoking all former wills, for under such circumstances the prohibition contained in section 835 of the Code of Civil Procedure does not apply. Appeal by Flora Gray Smith, legatee, from a decree of the Surrogate’s Court of the county of Steuben, entered in the office of said Surrogate’s Court on the 18th day of March, 1914, denying probate to an instrument in writing purporting to he the last will and testament of Ellen Bennett, deceased. Milo M. Acker, for the appellant. Robbins, Brown & Phillips [Fred A. Robbins of counsel], for the respondent Benjamin F. Ferris. Shultz, Stevens & Cameron [Fred A. Robbins of counsel], for the respondent Elizabeth A. Meyers. [MAJORITY — Per Curiam:] Per Curiam: We are satisfied that the evidence shows that the instrument presented by the petitioner, the appellant herein, for probate as the last will and testament of Ellen M. Bennett, deceased, bearing date October 16,1906, was revoked by a subsequent will duly made and executed by the testatrix on or about March 16, 1908, which last-mentioned will contained a clause revoking all former wills made by her. The evidence further shows that this last will after its execution was by testatrix’s direction retained by the attorney who drew it, in whose custody it remained for some two years; and at her request it was then delivered to her. What afterwards became of it is not shown; but, as it could not be found, the presumption is, under the circumstances, that it was destroyed by her with the intention of revoking it. (Collyer v. Collyer, 110 N. Y. 481; Matter of Kennedy, 167 id. 163.) A material part of the evidence, by which contestant's sought to establish the execution of the later will, and the fact that it contained the revocation clause, was given by the attorney, who, at the request and by direction of deceased, drew it. This evidence was duly objected to by the petitioner as calling for the disclosure of a communication between an attorney and his client, disclosure of which by the attorney was prohibited by section 835 of the Code of Civil Procedure, and exception duly taken to its admission. If, therefore, the attorney was, under the circumstances of this case, prohibited by the section referred to from disclosing the contents of that will, then the erroneous admission of his evidence would necessarily require the reversal of the decree. But it appears that, while the attorney was not a witness to the, will, yet the directions for its preparation were given him by the deceased in the presence of a third person, Mrs. Taft, a friend of deceased, whom she had requested to accompany her to the attorney’s office, and that after the will was prepared by him he read it aloud in the presence and hearing of both Mrs. Taft and the deceased. Mrs. Taft was a witness to the execution of this will, and she, as well as the attorney, gave evidence as to its execution. Under these circumstances the communications between the attorney and his client do not partake of that confidential character, nor is the relation occupied by.the attorney and client in regard to such communications of the confidential nature, disclosure of which is prohibited by the section above referred to. (Baumann v. Steingester, 213 N. Y. 328.) This court has also so held in two cases in which the same question arose. (See Mat ter of Barnes, 70 App. Div. 523; Matter of Eckler, 126 id. 199.) The failure of contestants to produce the other subscribing witness for examination on the hearing was sufficiently explained. The decree should be affirmed, with costs to respondents payable out of the estate. All concurred. Decree affirmed, with costs to respondents payable out of the estate.