Knepper v. Knepper

Citations

• 103 Ohio St. (N.S.) 529

Syllabus

<p>Wills — Construction—Charging devised real estate with subsequent bequests — ¡Witnesses—■Privileged communications — Section 11494, General Code — Attorney signs will as witness — Privilege waived and consent given, when — Competency of attorney’s testimony.</p> <p>1. The intention of a testator to charge legacies on real estate specifically devised must clearly appear or be clearly deducible from the language of the will. But it is not necessary that the charge shall be made in express terms or that any particular language be used. The intention to charge will be given effect when it clearly appears from the provisions of the instrument.</p> <p>2. Section 11494, General Code, disqualifies an attorney from testifying “concerning a communication made to him by his client in that relation, or his advice to his client,” except by the express consent of the client, and when a testator procures his attorney as a subscribing witness to his will he by that act expressly consents that the attorney may testify as fully as any other subscribing witness touching the capacity of the testator or any other fact affecting the validity of the will. The object of requesting a person to witness a will is to assure the legal execution of the will and preserve the evidence thereof.</p> <p>3. But the testimony of an attorney is not competent to vary the terms of a written instrument prepared by him as such, and in a proceeding to construe a will the attorney who wrote the will, and with whom the testator consulted concerning it, is not competent to testify concerning a communication made to him by his client touching his estate, the objects of his bounty or the meaning and effect of provisions contained in the will.</p>