Edw. Ch. 579. Communications of the object for which an assignment of a mortgage was made, to a lawyer concerned for the assignee on the distribution of the proceeds of the mortgaged premises, are privileged, although no question there arose as to the object of the assignment, and the attorney considered the communications in the light of a casual conversation: Moore v. Bray, 10 Pa. St. 519.

Wills.-It has been said that the reason of the rule respecting privileged communications between attorney and client does not apply to testamentary dispositions of property. "The very foundation on which the rule proceeds seems to be wanting; and in the absence, therefore, of any illegal purpose entertained by the testator, there does not seem to be any ground for applying it: Russell v. Jackson, 9 Hare, 387, 392. After a testator's death, and when his will is presented for probate, there seems to be no good reason why his attorney who had drawn it should not be allowed, as a matter of public policy, to testify as to the directions given him by the testator, so that it may appear whether the instrument presented for probate is or is not the will of the alleged testator; although, while the testator lives, the attorney drawing his will would not be allowed, without the consent of the testator, to testify to communications made to him concerning it, or to the contents of the will itself: Doherty v. O'Callaghan, 157 Mass. 90; 34 Am. St. Rep. 258; Glover v. Patten, 165 U. S. 394, 408; Olmstead v. Webb, 5 App. D. C. 38, 51; Turner's Estate, 167 Pa. St. 609; Matter of Austin, 42 Hun, 516; Layman's Will, 40 Minn. 371; Graham v. O'Fallon, 4 Mo. 338; Matter of Austin, 42 Hun, 516; Scott v. Harris, 113 Ill. 447, 454. Compare Blackburn v. Crawfords, 3 Wall. 175, 192; Worthington v. Klemm, 144 Mass. 167; and Davis v. Davis, 123 Mass. 590, 597, explained in Doherty v. O'Callaghan, 157 Mass. 90; 34 Am. St. Rep. 258. Thus, in a suit between devisees under a will, statements made by the deceased to counsel respecting the execution of the will, or other similar document, are not privileged: Glover v. Patten, 165 U. S. 394, 408. And in Matter of McCarthy, 55 Hun, 7, 12, the court said: "It may often happen that a party in conversation with his counsel, for the purpose of making and preparing a will, may communicate many things of a confidential character which the counsel would not be permitted to disclose, but we entertain the opinion that all the instructions received by the counsel, and all acts of the testator connected with the making and execution of the will which tend to uphold and support the instrument which the testator executed as being his free, voluntary and valid act, may be proved by the person who assisted him in preparing the will, although at that time he was acting as the legal adviser of the testator." On a bill by the next of kin of a deceased party against the latter's executors, who were his residuary devisees and legatees, alleging that the gift of the property was made to them upon a secret trust for the foundation of a school, the testator's solicitor, who was also, after the death of the testator, the solicitor of the defendants, the executors, was examined as a witness for the

plaintiff, and, on the defendants' motion to suppress the depositions of the solicitor on the ground of professional confidence, it was held that the communications between the testator and the solicitor might be read, but that the communications between the defendants, the executors, and the solicitor, after the death of the testator, were privileged: Russell v. Jackson, 9 Hare, 387. An attorney is competent, as a witness, to prove that he drew up a will, that he was present at the time of its execution, that he saw the instrument, after the testator's death, in the possession of the testator's family, and that he read it and recollects its principal provisions: Graham v. O'Fallon, 4 Mo. 338. The testimony of an attorney, who drew a will and codicils, is admissible when he is called upon as a witness to show what transpired between him and the testator, respecting the execution of the instruments: Matter of Austin, 42 Hun, 516. An attorney at law, who had been the legal adviser of a testator, was permitted to disclose communications made to him by the deceased in his lifetime, upon business matters and the advice and counsel given thereon. The object of the testimony was to lay a foundation for the admission in evidence of the attorney's opinion as to the testator's sanity. There was nothing in the testimony reflecting in any manner upon the character or reputation of the deceased, and it was held that the contestant, who was one of the heirs at law of the deceased, could not exclude the testimony by invoking the rule of privileged communications: Layman's Will, 40 Minn. 371. In this case the court said respecting the communications mentioned: "These communications between the decedent and his attorney were privileged at common law as well as by statute, the object of the rule being the protection of the client and his estate. And while many text-writers assert emphatically that the seal of secrecy remains forever, unless removed by the party himself, there is abundance of authority for saying that, upon the decease of the only person who could, in his lifetime, exercise the privilege of waiver, the rule should not be so perverted by a strict adherence to it as to render it inconsistent with its object, and thus bring it into direct conflict with the reason upon which it is founded: Russell v. Jackson, 9 Hare, 387; Blackburn v. Crawfords, 3 Wall. 175, 192; Groll v. Tower, 85 Mo. 249; 55 Am. Rep. 358. The object of the rule, so far as it relates to this class of communications, being the protection of the estate, there remains no reason for continuing it when the very foundation upon which it proceeds is wanting. The testimony called for was quite necessary in order to determine the weight which ought to be given the witness' opinion as to the mental condition of the testator, and his disclosures in no way reflected upon the character or reputation of the deceased. The testimony when given served to protect the estate, and tended to aid in a proper disposition of it. The issue in the case was as to the mental soundness of a person under whom each litigant claimed, and, whatever the result, the interest and the estate of the deceased were not prejudicially affected. It is not an action in which the success of an adverse third party must prove detrimental to the

property. Neither of these litigants can be permitted to Invoke the rule respecting privileged communications for the purpose of excluding material and important evidence of the character above described upon the only question involved in the dispute, namely, the sanity of the deceased. The testimony of the witness was properly received": Layman's Will, 40 Minn. 371, 372. If a lawyer accepts a retainer to contest the probate of a will which he drew, and about which he advised the testator, he must testify as a witness, if called by the proponents: Sheridan v. Houghton, 6 Abb. N. C. 234. Although statements made by one to his legal adviser are privileged if offered in evidence against the client while living, yet they are not privileged after his death, in an inquiry to ascer tain, as between his devisees under his will and a grantee claiming under his deed made after the will, as to what he intended by his deed: Scott v. Harris, 113 Ill. 447.

But some cases hold that a lawyer in receiving the directions or Instructions of one intending to make a will, although he asks no questions and gives no advice, but simply reduces to writing the directions given to him, still acts in a professional capacity and is prohibited from testifying as to any communication made to him by his client during the course of such business: Loder v. Whelpley, 111 N. Y. 239; Gurley v. Park, 135 Ind. 440; Matter of Bedlow, 67 Hun, 408; and that a communication had with reference to the validity of a will, passed between the plaintiff and his legal adviser between the date of the will and the death of the testator, is privileged: Calley v. Richards, 19 Beav. 401; and yet there are other authorities which support the proposition that if a testator calls in his attorney to witness his will, it is a waiver which enables the attorney to testify as to the circumstances attending its execution, including the mental condition of the testator at that time, as evidenced by his actions, conduct and conversation: Denning v. Butcher, 91 Iowa, 425; Matter of Coleman, 111 N. Y. 220; In re Wax, 106 Cal. 343; In re Mullin, 110 Cal. 252; Taylor v. Pegram, 151 Ill. 106, 113. An attorney who drafts a will, and signs it as a witness at the request of the testator, may testify to any matter in relation to the will and its execution of which he acquired knowledge by virtue of his professional relation: McMaster v. Scriven, 85 Wis. 162; 39 Am. St. Rep. 828. The testator, by requesting his attorney to sign a will as attesting witness, consents, in effect, that whenever the will is offered for probate, he may be called as a witness and testify to any facts within his knowledge, necessary to establish its validity, and waives the requirement of secrecy: In re Wax, 106 Cal. 343.

Attesting Witness—Notary—Acknowledgment.—An attorney is a competent witness to prove the execution of an instrument signed by him as a witness. See "Wills," supra, and the principal case. An attorney who drafts a mortgage and signs it as a witness is entitled to testify to what occurred at the time of its execution: Monaghan Bay Co. v. Dickson, 39 S. C. 146; 39 Am. St. Rep. 704; and if he is made a witness to the execution of a deed, the signing of an

answer, or any other fact, may be required to testify concerning the same: Brazel v. Fair, 26 S. C. 370; Coveney v. Tannahill, 1 Hill, 33; 37 Am. Dec. 287. An attorney, who witnessed a deed which he was employed to prepare, may be compelled to testify with respect to execution; also, as to whether it was antedated, or has been altered, or as to the date of its actual delivery; and, in the event of its being lost or suppressed, he may be required to give evidence of its contents. But he will not, because of his being a subscribing witness, be allowed to disclose communications made to him by his clients respecting the subject or object of the conveyance: Bank of Utica v. Mersereau, 3 Barb. Ch. 528; 49 Am. Dec. 189.

An attorney may be required to testify as to the execution of an instrument, if within his knowledge: Robson v. Kemp, 4 Esp. 233, 236; Coveney v. Tannahill, 1 Hill, 33; 37 Am. Dec. 287. See "Wills," supra. If an attorney at law prepares and writes an order for the defendant to sign, which the defendant subsequently swears that he did not sign, such attorney is a competent witness to prove its execution by the defendant, and the rule of privileged communications as between attorney and client does not apply in such a case: Rahm v. State, 30 Tex. App. 310; 28 Am. St. Rep. 911. So, if a lawyer draws up a mortgage securing several debts, he may testify as to what was then said by the parties as to applying the proceeds of the mortgage to one of the debts first: Wyland v. Griffith, 96 Iowa, 24. If a legal document is executed or altered in the presence of an attorney he may be required to testify as to the fact: Patten v. Moor, 29 N. H. 163. In Brown v. Grove, 80 Fed. Rep. 564, it was held that an attorney for both parties might testify as to negotiations leading up to a trust deed; but, in a late New York case, it is held that a lawyer who prepared a codicil to the will of a client, since deceased, and which codicil has been destroyed, may be, as a witness, required to state, if within his knowledge, whether such codicil was executed, and, if so, its contents, though he cannot, under the statute of that state, be required to testify to transactions or conversations leading up to its execution: Fayerweather v. Ritch, 90 Fed. Rep. 13. In that case it is held that when a document, whether a will, contract, or other instrument, has been exeeuted, its contents are no longer confidential, that the reason for the rule of privilege ceases, and that the counsel may as properly testify to the contents as may any other witness who knows such contents: Fayerweather v. Ritch, 90 Fed. Rep. 13. A communication to a lawyer while acting as a notary is not privileged: Aultman v. Daggs, 50 Mo. App. 280; and a notary, though an attorney, must testify as to drawing a deed: Mutual Life Ins. Co v. Corey, 54 Hun, 493.

Papers, Documents, and Writings.-Confidential communications between an attorney and client, whether oral or written, concerning the matter to which the retainer relates, are not to be disclosed in court, unless the client waives his privilege. Hence, the privilege of an attorney or counselor extends to papers, documents, and writ

ten instruments held by him on behalf of his client: Coveney v. Tannahill, 1 Hill, 33; 37 Am. Dec. 287; Burnham v. Roberts, 70 Ill. 19; Anonymous, 8 Mass. 370; Robson v. Kemp, 5 Esp. 53; Taylor v. Blacklow, 3 Bing. N. C. 235. A privileged communication placed in the hands of an attorney does not lose its character as such. though it passes from the lawyer's possession without fault on his part. The admissibility of a paper containing a confidential communication between client and attorney is not dependent upon the manner in which possession thereof was obtained from the attorney, but upon the inherent character of the communication itself. If the communication is privileged, it can only be deprived of that character by some unequivocal act on the part of the client himself: Liggett v. Glenn, 51 Fed. Rep. 381, 396, 397. Compare Pulford's Appeal, 48 Conn. 247. His privilege also extends to any information derived from books, papers, or writings, shown to him by the client, or placed in his hands as a professional man: Matthews v. Hoagland, 48 N. J. Eq. 455; Crosby v. Berger, 11 Paige, 377; 42 Am. Dec. 117; Brard v. Ackerman, 5 Esp. 119, 120. If an attorney is resorted to by a borrower to raise money for him, and the abstracts of the borrower are perused by him, on behalf of the lender, the attorney wil not be allowed to give evidence concerning them against the borrower: Doe v. Watkins, 3 Bing. N. C. 421.

He is not obliged to produce books, papers, or documents intrusted to him professionally by his client, when called upon to do so in the course of judicial proceedings: Laing v. Barclay, 3 Stark. 38, 42; Volant v. Soyer, 13 Com. B. 231; Parkhurst v. McGraw, 24 Miss. 134; Kellogg v. Kellogg, 6 Barb. 116; Greenough v. Gaskell, 1 Mylne & K. 98; Lynde v. Judd, 3 Day, 499; People v. Benjamin, 9 How. Pr. 419; Neal v. Patten, 47 Ga. 73; Dover v. Harrell, 58 Ga. 572; Lawrence v. Campbell, 4 Drew, 485; Hughes v. Biddulph, 4 Russ. 190; Bluck v. Galsworthy, 2 Giff. 453; Newton v. Chaplin, 10 Com. B. 356; Mills v. Oddy, 6 Car. & P. 728; Doe v. Seaton, 2 Ad. & E. 171; King v. Boddington, 8 Dowl. & R. 726; Jackson v. Denison. 4 Wend. 558; Durkee v. Leland, 4 Vt. 612; Brandt v. Klein, 17 Johns. 335; Adams v. Fisher, 3 Mylne & C. 526; Stokoe v. St. Paul etc. Ry. Co., 40 Minn. 545. A lawyer who has, as an attorney in a cause, been intrusted with papers by a third person, cannot be called upon by the opposite party to produce these papers in evidence: Jackson v. Burtis, 14 Johns. 391; and an attorney who has. In that capacity, received papers from a client, cannot be called to produce them in a cause, although he does not act therein as the attorney of the party: Parker v. Yates, 12 Moore, 520.

Nor is he required ordinarily to answer any questions concernIng the nature or contents of books, papers, or documents intrusted to him professionally: Kellogg v. Kellogg, 6 Barb. 116; Volant v. Soyer, 13 Com. B. 231; Jackson v. Denison, 4 Wend. 558; Brandt v. Klein, 17 Johns. 335; Stokoe v. St. Paul etc. Ry. Co., 40 Minn. 545; King v. Boddington, 8 Dowl. & R. 726. Thus, in an action against a mortgagor, the attorney of the mortgagee, who has the mortgage deed, cannot be compelled to produce it, if he objects to