Kruse, J.:
James Eckler, over whose will this controversy arises, died on the 17th day of April, 1900. He left no descendants, and no brothers or sisters, save one, a sister, Eva M. Eckler, who has been incompetent' since childhood. He also left several nephews and nieces, children of deceased sisters. He was eighty-seven years of age at the time of his death.
The alleged will was made on June 12, 1895, about five years before his death. By its terms all his property was given in trust to George H. Cristman, the husband of a cousin of the deceased, for the support, care, clothing and funeral expenses of the incompetent sister, and upon her death the residue was given absolutely to Cristman, naming Charles Young as the executor of the instrument. The property consisted of an undivided seven-eighths of a farm, worth about $2,000, and personal property worth about $25,000.
The will was drawn by Cristman, and were it not for this fact I think there would not be even a suspicion that the will was not precisely as the deceased wanted it, and its validity could not be reasonably questioned. At the time the will was drawn and executed the deceased lived with his two sisters in the village of [201]*201Mohawk, Herkimer county. He had no brothers and his other sisters had died. One of the sisters was Eva, the incompetent, and the other was Angeline Eckler, a widow, whose husband’s name seems also to have been Eckler. The sister Angeline was ill with a mortal disease — cancer of the stomach ■— from which she died within a month after the will was made. She evidently realized that she had not long to live, and was very anxious that her sister Eva, the incompetent, should be cared for, and it had evidently been a matter of conversation between her and her brother.
Cristman and his wife seem to have been on good terms with this family. They lived about ten miles away on a farm. On June 11, 1895, they attended the funeral of Daniel Crim at J ordanville, about eight miles from Mohawk, and having learned of the serious illness of Angeline they drove over to see her after the funeral. They Stayed over night, and the next day, June twelfth, the will was made.
Angeline had theretofore made her will, and I think the inference is permissible from the testimony that she had willed at least some of her property to her brother James, and she was very insistent that he should make a will providing for their incompetent sister. She told him that if he did not do so she would change or destroy her will, to which James replied that he did not want her to do so; that he was going to provide for the sister and make provision for her support as long as she lived. Angeline told him that she wanted him to make his will that day; that she did not know how long she would be there, and he said he was willing to provide for her and had thought of making his will for a long time; that he had intended to and was ready to do it. He and Cristman went out and returned with a blank will, which was filled out by Cristman, subscribed by Eckler, and witnessed by Mrs. Cristman and a Mrs. Shoemaker, who was also a cousin of the Ecklers. The will was taken by Cristman and put in his safe.
I think the proof fairly shows, not only that the will was properly executed, but. that the disposition of the testator’s property was made as he desired. The will was read aloud to him in his presence, and before it was drawn, in reply to inquiries made by the draftsman, he stated that he wanted his property left for the support of Eva as long as she lived, and upon further inquiry as to [202]*202what he desired done with the rest of it, he stated that he wanted Mr. Cristman to have it, and I think the evidence further shows that he was entirely competent to make a will.
• Immediately after the death of Angeline, which occurred July 2, 1895, he went to Cristman’s and lived there until October, 1899, when he went over to his farm and lived with Charles Ostrander until his death, which occurred the following April.
It is true that after the making of this will there is evidence of declarations made by the testator, to the effect that he had not-made a will, and that he was not going to make a will; but there is also evidence showing that he knew he had made a will, and recognized that it was in force. It is not very strange that he should be reluctant to inform the inquirers of the fact that he had made a will, or of its contents. Some of them had no interest in the matter other than mere curiosity; others seem to have been interested in his making a will, hoping to get some of his property, but he had repeatedly declared that his nephews and nieces should not receive any of his property. Some of them he seems to have distrusted; toward others he had a violent dislike, owing to the fact that he believed they were intemperate and indolent. To one of them he had loaned money, which had not been paid back. The mere fact that they were blood relatives did not obligate him to leave to them his property. The evidence does not show that, either through friendship or otherwise, he would naturally be prompted to leave his property to them, but quite the reverse. His friendships were with others. It is true that Cristman was not a blood relative, but his wife was, although more remote than his nephews and nieces, she being his first cousin. Had the contestants been his children, or either of his two sisters, there would be much more force in the suggestion that the will was unnatural and unjust. It is not difficult to understand, in the light of the evidence and surrounding circumstances, that the contesting nephews and nieces did not have the hold upon his affections as the family with whom he afterward made his home, and with whom he had been on terms of intimate friendship for years.
I do not think the severe criticism made upon the testimony of Mrs. Shoemaker is deserved. She was a lady sixty-six years of age, and was subjected to a most searching cross-examination. She was [203]*203examined and re-examined time and again until, as she states, she was tired and weary, and her suggestion that counsel were asking the questions over and over again I think is borne out by the record. I do not think we are justified in brushing aside and disregarding her testimony.'
Much is made of the fact that the sister Angeline, at the time the will was executed, delivered up to Mrs. Shoemaker a note held by Angeline and made by Mrs. Shoemaker for $600. There is no evidence to show that it was an unnatural thing for Angeline to do. Mrs. Shoemaker had taken care of her, and the evidence shows that she (Angeline) had said she would give her the note, and wanted Mr. Oristman to give it to her after her death, and all Oristman had to do with it was to tell Angeline that to make it lawful it would be necessary for her to deliver the note to Mrs. Shoemaker.
It is true, as is suggested by Mr. Justice Williams, that the expense of the litigation is seemingly large; whether it is more than it should be we do not know. All we know about the matter is what appears in the record, and that has not been made up to present the question of the allowances made. In any event, the question is not before us, and even if it be subject to criticism, that affords no good reason for turning over the balance of the estate to the contestants, unless they are entitled to it.
I think the circumstances of this case are such as to require a jury trial under the rule adopted by this court. (Matter of Burtis, 107 App. Div.
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Kruse, J.:
James Eckler, over whose will this controversy arises, died on the 17th day of April, 1900. He left no descendants, and no brothers or sisters, save one, a sister, Eva M. Eckler, who has been incompetent' since childhood. He also left several nephews and nieces, children of deceased sisters. He was eighty-seven years of age at the time of his death.
The alleged will was made on June 12, 1895, about five years before his death. By its terms all his property was given in trust to George H. Cristman, the husband of a cousin of the deceased, for the support, care, clothing and funeral expenses of the incompetent sister, and upon her death the residue was given absolutely to Cristman, naming Charles Young as the executor of the instrument. The property consisted of an undivided seven-eighths of a farm, worth about $2,000, and personal property worth about $25,000.
The will was drawn by Cristman, and were it not for this fact I think there would not be even a suspicion that the will was not precisely as the deceased wanted it, and its validity could not be reasonably questioned. At the time the will was drawn and executed the deceased lived with his two sisters in the village of [201]*201Mohawk, Herkimer county. He had no brothers and his other sisters had died. One of the sisters was Eva, the incompetent, and the other was Angeline Eckler, a widow, whose husband’s name seems also to have been Eckler. The sister Angeline was ill with a mortal disease — cancer of the stomach ■— from which she died within a month after the will was made. She evidently realized that she had not long to live, and was very anxious that her sister Eva, the incompetent, should be cared for, and it had evidently been a matter of conversation between her and her brother.
Cristman and his wife seem to have been on good terms with this family. They lived about ten miles away on a farm. On June 11, 1895, they attended the funeral of Daniel Crim at J ordanville, about eight miles from Mohawk, and having learned of the serious illness of Angeline they drove over to see her after the funeral. They Stayed over night, and the next day, June twelfth, the will was made.
Angeline had theretofore made her will, and I think the inference is permissible from the testimony that she had willed at least some of her property to her brother James, and she was very insistent that he should make a will providing for their incompetent sister. She told him that if he did not do so she would change or destroy her will, to which James replied that he did not want her to do so; that he was going to provide for the sister and make provision for her support as long as she lived. Angeline told him that she wanted him to make his will that day; that she did not know how long she would be there, and he said he was willing to provide for her and had thought of making his will for a long time; that he had intended to and was ready to do it. He and Cristman went out and returned with a blank will, which was filled out by Cristman, subscribed by Eckler, and witnessed by Mrs. Cristman and a Mrs. Shoemaker, who was also a cousin of the Ecklers. The will was taken by Cristman and put in his safe.
I think the proof fairly shows, not only that the will was properly executed, but. that the disposition of the testator’s property was made as he desired. The will was read aloud to him in his presence, and before it was drawn, in reply to inquiries made by the draftsman, he stated that he wanted his property left for the support of Eva as long as she lived, and upon further inquiry as to [202]*202what he desired done with the rest of it, he stated that he wanted Mr. Cristman to have it, and I think the evidence further shows that he was entirely competent to make a will.
• Immediately after the death of Angeline, which occurred July 2, 1895, he went to Cristman’s and lived there until October, 1899, when he went over to his farm and lived with Charles Ostrander until his death, which occurred the following April.
It is true that after the making of this will there is evidence of declarations made by the testator, to the effect that he had not-made a will, and that he was not going to make a will; but there is also evidence showing that he knew he had made a will, and recognized that it was in force. It is not very strange that he should be reluctant to inform the inquirers of the fact that he had made a will, or of its contents. Some of them had no interest in the matter other than mere curiosity; others seem to have been interested in his making a will, hoping to get some of his property, but he had repeatedly declared that his nephews and nieces should not receive any of his property. Some of them he seems to have distrusted; toward others he had a violent dislike, owing to the fact that he believed they were intemperate and indolent. To one of them he had loaned money, which had not been paid back. The mere fact that they were blood relatives did not obligate him to leave to them his property. The evidence does not show that, either through friendship or otherwise, he would naturally be prompted to leave his property to them, but quite the reverse. His friendships were with others. It is true that Cristman was not a blood relative, but his wife was, although more remote than his nephews and nieces, she being his first cousin. Had the contestants been his children, or either of his two sisters, there would be much more force in the suggestion that the will was unnatural and unjust. It is not difficult to understand, in the light of the evidence and surrounding circumstances, that the contesting nephews and nieces did not have the hold upon his affections as the family with whom he afterward made his home, and with whom he had been on terms of intimate friendship for years.
I do not think the severe criticism made upon the testimony of Mrs. Shoemaker is deserved. She was a lady sixty-six years of age, and was subjected to a most searching cross-examination. She was [203]*203examined and re-examined time and again until, as she states, she was tired and weary, and her suggestion that counsel were asking the questions over and over again I think is borne out by the record. I do not think we are justified in brushing aside and disregarding her testimony.'
Much is made of the fact that the sister Angeline, at the time the will was executed, delivered up to Mrs. Shoemaker a note held by Angeline and made by Mrs. Shoemaker for $600. There is no evidence to show that it was an unnatural thing for Angeline to do. Mrs. Shoemaker had taken care of her, and the evidence shows that she (Angeline) had said she would give her the note, and wanted Mr. Oristman to give it to her after her death, and all Oristman had to do with it was to tell Angeline that to make it lawful it would be necessary for her to deliver the note to Mrs. Shoemaker.
It is true, as is suggested by Mr. Justice Williams, that the expense of the litigation is seemingly large; whether it is more than it should be we do not know. All we know about the matter is what appears in the record, and that has not been made up to present the question of the allowances made. In any event, the question is not before us, and even if it be subject to criticism, that affords no good reason for turning over the balance of the estate to the contestants, unless they are entitled to it.
I think the circumstances of this case are such as to require a jury trial under the rule adopted by this court. (Matter of Burtis, 107 App. Div. 51.) We have recently made similar decisions in cases where I think the circumstances were no more favorable to that disposition than in this ease. (Matter of Gates, 121 App. Div. 893; Matter of Didama, 125 id. 902.)
2. Furthermore, I think the objection to James Conkling stating what occurred in the interview between himself and Oristman and the deceased, regarding this will, was improperly sustained. It was excluded upon the ground that it was incompetent under section 835 of the Code of Oivil Procedure, which forbids an attorney disclosing a communication made by his client to him, or his advice given thereon in the course of his professional employment. The testimony tends to show that if there was the relation of attorney and client, it existed between the witness and Oristman, and not Eckler, the deceased, and the witness. But assuming that the relation of [204]*204attorney and client did exist between Eckler and the witness, it was not a confidential communication. Whatever was said and done took place in the presence of and with Cristman. The object of the statute is to prevent an attorney disclosing a communication made by the client which is confidential. (Doheny v. Lacy, 168 N. Y. 213; People v. Bloom, 124 App. Div. 7670 As Judge Gray says in the Doheny case (at p. 224): “ The rule of immunity as to communications between persons sustaining the relation of attorney and client was not intended, in my opinion, to operate where two or more persons are present, or are cognizant of the attorney’s professional work. They are not then confidential.”
It may be said in passing that there is more reason for ordering a new trial before a jury in a case like this than where a will has been admitted to probate. In the latter case any person interested, as devisee, legatee or otherwise, in the will which has been admitted to probate, or any heir at law or next of kin of the testator, may bring an action to' determine the validity or invalidity thereof, and have a jury trial thereon, while no such remedy exists when the will has been rejected. (Code Civ. Proc. § 2653a.)
The respondents contend that the executor has no right to appeal. That question, however, seems to have been decided adversely to them in Matter of Stapleton (71 App. Div. 1), which decision was followed by this court in Matter of Rayner (93 id. 114).
The decree of the Surrogate’s Court should be reversed, with costs to the appellant to abide the event, and a trial by jury of the issues of fact directed, as is provided by section 2588 of the Code of Civil Procedure.
All concurred, except MoLennak, P. J., and Williams, J., the former dissenting also on the ground that under the facts in this case the appellant is not a party aggrieved under the provisions of the Code of Civil Procedure.