Smith, J.
Plaintiffs live in Sweden. Their brother, August Olson, liv.ed approximately fifty-five years in this country and died in Buena Vista county, October 3, 1943, aged about seventy-five years. He never married, but lived, or made his headquarters when not working, with various persons, first with the C. J. Blombergs, near Albert City. Mrs. Blomberg was his cousin and nearest of kin in this country.
Subsequently, when the Blombergs moved to town, he changed his headquarters to the farm home of Andrew Aronson, whose wife, Elsie, was a daughter of the Blombergs. During most of his life he worked as a farm hand and at his death he owned forty acres in Buena Vista county, seventy-five or eighty acres in Pocahontas county, and a personal estate worth approximately $5,000. About 1935, on account oí ill health, he quit working regularly, and spent most of his time with the Aronsons; and when later, in 1938, they moved to another location he stayed on with their children who remained.
In 1940 he spent a short time in the Fort Dodge Lutheran Hospital. Shortly thereafter he went to the Swallum Hospital at Storm Lake, where he remained six or seven months. He then went to Axtell, Nebraska, to the Béthphage Institution, where he stayed from October 24,1940, to January 7, 1941. From there he came back to the Andrew Aronson home.
On September 30, 1932, he made a will by which he gave all his property to his brothers in Sweden. He had visited them shortly before. In 1939 he made a new will giving everything to
Betbpbage Inner Mission Association, Axtell, Nebraska. On May 3, 1940, he executed a broad power of attorney appointing his banker at Albert City to look after his property and business affairs.
The deed and bill of sale involved in this suit were executed January 25, 1941 (though dated January 24), at Storm Lake. On that day Andrew Aronson and Carl Anderson, an old friend and neighbor, took August Olson in to town pursuant to his own request. He told them he wanted to go in and have defendant, Regina Pierson, appointed his guardian. Miss Pier-son was county recorder.
They arrived at her office in the courthouse around ten o’clock a. m. Upon being advised by them of the purpose of their visit Miss Pierson agreed to accept the appointmént. She called Paul Turner, county attorney, who happened to' be in the building, and he drew the necessary petition, which Mr. Olson signed, for her appointment.
The conveyances in question here were thereafter drawn in Turner’s office about a block distant from the courthouse. Neither Miss Pierson nor Aronson nor Anderson was present or knew they were being drawn. The deed runs to both defendants and the bill of sale to defendant Pierson alone. The two separate suits for their cancellation were tried together and are consolidated for the purpose of this appeal. More particular reference to the testimony will be made as we proceed.
Plaintiffs allege fraud and undue influence and mental incompetence. The trial court found for defendants and rendered decree accordingly and plaintiffs have appealed.
I. Under the record the fraud, if any, was purely constructive, based entirely upon an assumed technical relation of guardian and ward between defendant Pierson and Olson. There is no evidence of any other kind of fraud or of any undue influence. There is no evidence of any solicitation by either defendant. Defendant Benna is Miss Pierson’s aunt. Neither was related to Mr. Olson and there is no evidence that either knew of the execution of the instruments until after the transaction was completed.
It is questionable if any actual confidential relationship had
yet arisen and even whether the technical relation of guardian and ward had commenced. In fact, the record shows it had not.
The files of the guardianship case show the petition for appointment was not filed until three p. m. and letters of guardianship issued at four p. m. of the day the conveyances were executed. Under the undisputed testimony of plaintiffs’ own two witnesses with whom Mr. Olson came to town that day they had all left town and returned to the Anderson home in the country several hours before that. It seems certain, then, that even technically the guardianship had not commenced when the conveyances were executed.
But even if the technical fact were otherwise, no real confidential relationship because of the appointment could have arisen. There had been no association between them as guardian and ward. No property had come into the guardian’s hands and she had neither performed any act nor assumed any of the duties of the relationship. No position of dominance could have yet existed by reason of the appointment. The plan for giving his property to defendants could not have grown out of the existence of the relationship, for at best — or worst — it had not really begun.
It appears rather that the conveyances were the result of the-same feeling of friendship and trust that prompted Mr. Olson to select Miss Pierson as his guardian. The transactions were apparently contemporaneous in his mind. That feeling, prompting both acts, did not grow out of any closeness of association or of any conduct that had created a confidential relationship in any legal or equitable sense. Whatever presumption might otherwise arise as to'undue influence or constructive fraud is overcome by the facts.
Nor does the record bear out the contention that Mr. Olson, in making the conveyances, was without independent legal advice, if we were to assume the circumstances to have been such as to require proof of such advice as an equitable prerequisite to upholding the validity of the instruments. The attorney who drew the instruments did so at Olson’s request. He was not attorney for Miss Pierson either individually or as guardian. He had represented Olson in 'drawing the petition for guardianship. Any shortcomings in the advice he gave should not be
charged to defendants. That he subsequently acted as attorney for the guardianship was a natural outcome but he was not acting-in that capacity at the time he drew these conveyances.
Something is sought to be made of the fact that the instruments were predated one day. The attorney testified that this was done in view of the guardianship appointment on the 25th, “although I didn’t know that that would make any difference since it was a voluntary guardianship. I thought the title might be best; I didn’t want to take time to look it up.”
We see nothing even suspicious in the circumstance nor in the fact that much later the attorney antedated a revocation of the 1939 will to-January 24, 1941. Neither tends to establish fraud in the making of the deed and 'bill of sale.
The rule of constructive fraud as to transactions between persons in confidential relationship is a salutary one and should be jealously upheld. But the
relationship
should be clearly established before the rule is invoked against one who is the beneficiary of a transaction that is free from any appearance of actual fraud. Otherwise it might become a weapon to thwart the will of the very one whose interest it is designed to protect. There is here no slightest contention of fraud, actual or constructive, between decedent and Mrs. Benna. And as to Miss Pierson, the most that can be said is that she was given the property in consideration of the same friendship that prompted her selection as guardian and not because of the relationship, since that had not actually commenced.
II. The record is voluminous on the subject of Mr. Olson’s mental condition. A large number of lay witnesses testified to facts .upon which they based the opinion he was incompetent. Three expert witnesses expressed a similar opinion: one wholly upon the basis of hypothetical questions; the other two, in part at least, from personal observation.
The trial court in an analysis of the entire testimony points out that the opinions of those lay witnesses were based on the fact that decedent had various “persecution delusions.” This testimony was also embodied in the hypothetical questions to the experts. Some of the lay witnesses who told of these delusions indicated-that they came on by “spells”; that “he was better at
times than, others”; sometimes his mind was “pretty good”; ‘ ‘ at times his mind seemed good. ’ ’
The delusions mostly were that his money was being stolen by his attorney in fact; that attempts were being made to poison him; that certain friends had been sent to the penitentiary; that his clothes had been stolen while he was at the hospital; that spirits came to the hospital and threw his things in the lake; and that people in the hospital were stripping flesh from skeletons in the operating room. There was- also testimony that he talked at times' of committing suicide.
The experts who expressed the opinion he was insane diagnosed his mental illness as “psychosis with cerebral arteriosclerosis” and “senile dementia.” One said:
“At times he would be perfectly rational in my opinion and at other times I thought that his mind was not rational”; and, ‘ ‘ I admit that this man was at times able .to make rational decisions. ’ ’
A number of lay witnesses testified to Mr. Olson’s soundness of mind, based upon varying degrees of intimacy of association and opportunity for observing. Among them were two nurses who helped care for him during a five-months’ stay in the hospital in 1940. One expert witness gave similar testimony based on hypothetical questions not materially different from those propounded to the other experts.
It is manifestly impossible to compress within reasonable limits the approximately five hundred pages of record, much of which is devoted to the inquiry into Mr. Olson’s mental condition. More than thirty witnesses testified on.the subject. Nor do we think it would be helpful to the profession to set out the testimony at great length.
The facts of the transaction itself, uncontradicted in substance, indicate a degree of intelligence at variance with any theory of mental incompeteney. Decedent had no dependents. He asked to be taken to Storm Lake for the purpose of having Miss Pierson appointed his guardian. The application for the appointment itself did not import or raise any presumption of mental incompetence. It was doné under section 670.5, Iowa Code, 1946 (section 12617, Code, 1939). He had known defendant
Pierson since she was a little girl, and presumably ber aunt, defendant Benna, still longer, but it does not appear their association had been particularly intimate.
Turner testified that after the guardianship papers were drawn Olson told him he wanted papers drawn to give his (Olson’s) farm to Miss Pierson and Edith Benna, her aunt.
Following this testimony a motion was made to strike it and objection urged to any further testimony on the subject, for the reason the witness was incompetent and the matter privileged because of the relationship of attorney and client. We shall refer to this contention later.
Mr. Olson told Turner he owned two farms, one forty acres, the other a little over seventy-five acres; that they were close to Albert City (Buena Vista county),, one being over the line in Pocahontas county; that there were new buildings on the larger farm but none on the forty. Other testimony in the record, shows the correctness of this information. After the suggestion of Turner that he accomplish his purpose by will was rejected by Olson the conveyances were drawn and placed in escrow in the hands of the attorney with a letter directing that the deed be delivered to grantees at grantor’s death. The bill of sale was by its express terms made to take effect at Olson’s death and covered all money on deposit in Albert City Savings Bank (balance on hand “upon my death”) ; also any and all personal property.
Turner also testified:
“I asked him when he wanted them to have this property, and he said when he died and that he wanted it until he died; so — then I asked him if he had ever been married, and he said, no, he hadn’t; never had any children; and I asked'him if he had any relatives in this country, close relatives, and he said he had cousins. I don’t recall how many he said. I think I asked him but I don’t recall; and I asked him if he had any other relatives anywhere and he said he had two brothers, I believe he said, in Sweden; and I asked him their names and he told me what they were — I don’t recall myself right now what their names were.”
There are other significant circumstances shown. In March 1941, following the making of the deed and bill of sale, Olson
went from Des Moines to Excelsior Springs, apparently alone. Shortly before tbe papers were drawn he traveled alone from Axtell, Nebraska, to Sionx City. In fact, he seemed to get around without unusual difficulty.
There is testimony of the daughter of the landlady with whom he lived in the last months of his life that he told of the making of the conveyances and said he wanted Miss Pierson and Mrs. Benna to have his property when he died.
On the basis of the evidence thus (inadequately perhaps) summarized it is contended the conveyances should be set aside because of mental incompetence of the grantor. We agree with the trial court in rejecting this contention. Mr. Olson had no one dependent upon him. His brothers (plaintiffs) lived in Sweden and long before this transaction he had revoked an earlier will in their favor and made one in which he gave everything to a charitable institution in Nebraska. There is nothing in the record to suggest this was the result of any unsoundness of mind.
Notwithstanding the strong showing as to delusions, it does not appear that they caused or influenced the execution of the conveyances or the formation of the plan the instruments invoked here were designed to carry out. It was said by this court, in a somewhat similar case, Bishop v. Leighty, Iowa, 237 N. W. 251, 257, 258:
“The evidence offered in behalf of plaintiff does show delusions. The delusions, however, have no reference to any of the parties to the controversy, or to their relationship, to claims upon decedent or to her property or to the nature and effect of the instrument which she was signing. Delusions of themselves are not proof of mental incompetency. Reese v. Shutte, 133 Iowa, 681, 108 N. W. 525; Mathews v. Nash, 151 Iowa, 125, 130 N. W. 796, and cases post.”
See cases later cited in the opinion; also, see, Zinkula v. Zinkula, 171 Iowa 287, 305, 306, 154 N. W. 158; Flynn v. Moore, 181 Iowa 1163, 1169, 1170, 165 N. W. 351; 26 C. J. S. 265, section 54c.
Plaintiffs argue that the delusions shown here did “affect or relate to the subject of the contract or conveyance.” We can
not follow this reasoning. The facts do not support it. The “subject” was the disposition of his property. The delusions had no relation to his decision not to leave it to his brothers or his decision to give it to Miss Pierson and her aunt.
"We are not unmindful of the contention that the delusions may have been symptoms of an underlying mental deterioration that might have rendered- Mr. Olson wholly incompetent' mentally. But the facts and circumstances shown in the record quite satisfactorily negative that possibility. The record shows that he knew the nature and substantially the extent of his property. It indicates he understood what he was doing and what the result of his act would be. Two years later (in 1943) he told Miss Bauer, a wholly disinterested witness, “that Regina and Edith were to have his property at the time of his death” and said “he wanted Regina Pierson and Edith Benna to have his property at the time of his death.” -
There are, of course, contradictions and conflicts in the record. The trial court had to wgigh the testimony and determine the issue accordingly. It has done so fairly and intelligently. It saw and heard most of the witnesses and was in some respects in a better position than are we to appraise the situation. Its decision should be affirmed.
III. The trial court admitted the testimony of the attorney, Turner, on the theory he was only a scrivener in the transaction. The record indicates that he was something more. But, assuming that he acted as Olson’s attorney, .does it follow he is incompetent, or that plaintiffs may urge the objection as to his competency in this case, to testify to confidential communications? Of course, much of his testimony was not of that nature, but an important part of it was.
Our statute says:
“No practicing attorney, counselor, physician, surgeon, or the stenographer or confidential clerk of any such person, who obtains such information by reason of his employment *
* *
shall be allowed, in. giving testimony, to disclose any confidential communication properly entrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office * * * Such prohibition shall
not apply to eases where tbe party in whose favor thé same is made waives the rights conferred.” Section 622.10, Code, 1946 (section 11263, Code, 1939).
This court has inferentially held the statute, as applied to attorneys, does not change the common-law rule and merely extends the rule to apply to physicians. Winters v. Winters, 102 Iowa 53, 57 et seq., 71 N. W. 184, 185, 63 Am. St. Rep. 428. In that case it is said:
“Those [communications] to an attorney, however, were privileged [at common law], and it was held that the attorney might not divulge without the consent of the client while living, but that, after his death, in a contest between a stranger and an heir, devisee, or personal representative, the latter might waive the privilege and examine the attorney * * * though the stranger was not permitted to do so; and, in a controversy between heirs at law, devisees, and personal representatives, the claim *! * * could not be urged, because, in such a case, the proceedings were not adverse to the estate, and the interest of the deceased, as well as of the estate, was, that the truth be ascertained.” (Citing authorities.)
The testimony in the Winters case was that of a physician and was offered by decedent’s widow as proponent in a will contest. Objection to the testimony was made by an heir, as contestant. Neither was a “stranger” within the meaning of the quotation. The opinion criticizes a California ease (In re Flint’s Estate, 100 Cal. 391, 34 P. 863) which held the privilege could not be waived by an heir in a will contest with a -devisee, and says:
“And no one can be said to represent the deceased in that contest, for he could only be interested in having the truth ascertained, and his estate can only be protected by establishing or defeating the instrument as the truth sd ascertained may re-' quire.” 102 Iowa, at page 59, 71 N. W., page 185.
The ease of Denning v. Butcher, 91 Iowa 425, 437, 59 N. W. 69, 73, was also a will contest. The testimony of decedent’s physicians in favor of proponents was admitted over contest
ant’s objections. It was held the privilege could be waived “by those whose interest it is to maintain the integrity of the will. ’ ’
In Boyles v. Cora, 232 Iowa 822, 6 N. W. 2d 401, the widow of a decedent sued to set aside a deed of her husband. It was held she could waive the privilege and avail herself of the testimony of her husband’s physicians.
We have in the instant case also a suit to set aside conveyances made by decedent. The offered testimony here is in support of the instruments. In the deed grantor retained a life estate and the bill of sale was to take effect and be delivered to grantee at his death. Both were placed in escrow for delivery at his death. Those claiming under them seek- to use the attorney’s testimony to “maintain the integrity” of the instruments as against the attack of heirs.
The analogy between this ease and a will contest is clear. Those tendering the testimony are claiming “under” decedent as truly as do devisees under a purported will offered for but not yet admitted to probate or as do heirs in such a ease. They are not “strangers. ’’ In the case of the will contest, it was said:
“The statutes are for the benefit of the patient while living and of his estate when dead. The very purpose of the contest is to determine whether the deceased in fact made a will, who shall be his representative, and who is entitled to his estate. * * * The same presumptions are indulged in favor of the validity of the will as of other written instruments. The paramount purpose in the first instance should be to ascertain whether the instrument presented is in fact the will of the deceased. And no one can be said to represent the deceased in that contest * * *." Winters v. Winters, supra, at page 58 of 102 Iowa, page 185 of 71 N. W. (See remainder of quotation, ante.)
The exact question presented here seems to have been decided in other jurisdictions against the contention here that the testimony of the attorney was incompetent. Warner v. Kerr, 216 Mich. 139, 145, 184 N. W. 425, 427, involved the validity of a decedent’s deed, attacked by his daughter. The Michigan court held admissible the testimony of the attorney who drew it, saying:
“Neither party to the litigation was a stranger to the estate. Both parties were claiming under the client.”
In Boyd v. Kilmer, 285 Pa. 533, 539, 132 A. 709, 711, a similar situation was presented. The court said:
“An attorney may testify in favor of his client [citing cases], and as the testimony of the attorney was in support of the deed executed by his client, it was properly admitted.”
And in Maxwell v. Harper, 51 Wash. 351, 98 P. 756, the Washington Supreme Court upheld the admissibility of the attorney’s testimony in a case involving a deed placed in escrow to be delivered at death.
These cases and others are cited in 70 C. J. 438, 439, section 587(2), in support of the text:
“It is generally considered that the rule of privilege does not apply in litigation, after the client’s death, between parties, all of whom claim under the client. ’ ’
The rule is sound in principle. Where the validity of an instrument, shown to have been executed by a decedent, is attacked on the ground of fraud or mental incompetency or undue influence, the same rule should prevail whether it be a will or a conveyance inter vivos. We have applied it as to cases involving wills. We should be consistent and hold it operative here.
Our conclusion is that the decision of the trial court should be affirmed. — Affirmed.
Garfield, C. J., and Bliss, Oliver, Hale, and Mulroney, JJ., concur.
Wennerstritm and Mantz, JJ., dissent.
Hays, J., takes no part.