In re Gagan's Will

21 N.Y.S. 350, 49 N.Y. St. Rep. 366

Opinion

BARNARD, P. J.

The testator made his will in January, 1892. Howard Thornton, an attorney in the supreme court, drew the will, supervised its execution, and was a witness to it, as well as one of the executors to it. Objection was made that he was not a qualified witness. Section 835 of the Code originally provided that an attorney should not .disclose a communication made to him in the course of his employment. This section was subsequently amended by a new section, (836,) which permitted a waiver of the disclosure. The court of appeals has held, in respect to proof by an attorney of a deliver)' of a deed by instruction of a client, that he was a competent witness; that the communication was made to be communicated. Rosseau v. Bleau, 131 N. Y. 177, 30 N. E. Rep. 52. In Re Will of Coleman, 111 N. Y. 220, 19 N. E. Rep. 71, the'court of appeals applied the same rule to attorneys who, at the request of a client testator, became witnesses to the will. One named as an executor in a will may testify to its execution if witnessed by him. Society v. Loveridge, 70 N. Y. 387.

The decree should be affirmed, with,costs. All concur.