This is an action to contest the will of Margaret E. Halpin. The issue of testamentary incapacity was eliminated by the trial court, and the contest both below and here is over the question of undue influence. The contestants are Mary Canty and Jennie Boeckmann, their husbands, and the three minor children of Mrs. Boeckmann. The contestees are Julia Halpin and Kate Halpin and, with the first two named contestants, are the only surviving children of the said Margaret E. Halpin.
Mrs. Halpin died on July 22, 1919, and this suit was instituted in the Circuit Court of the City of St. Louis on August 9, 1919. The will in controversy was alleged to have been executed on January 22, 1914, and was probated August 5, 1919. Contestee, Julia Halpin, was the chief beneficiary under said will, and the petition charges that she, occupying a confidential and fiduciary relationship to her mother, the testatrix, exercised an undue influence over her in the execution of said will.
The contestees properly assumed the burden of proof in the first instance, and made their prima-facie case by showing the due execution of the will and that testatrix was then of sound mind. [Teckenbrock v. McLaughlin, 209 Mo. 533, l.c. 539, and cases cited therein.] Thereupon *Page 101 contestants offered testimony tending to prove an inequality in the value of property devised by the will to the contestants and contestees, such value being greatest in the property devised to Julia Halpin.
Mary Canty and Jennie Boeckmann, contestants, daughters of the testatrix, testified that prior to the execution of the will Julia "looked after the property, the repairs and troubles of real estate agents, tenants and matters of that sort, and she was supposed to do the banking business for our mother;" that testatrix "asked nobody but Julia" about her business affairs; that Julia attended to the property of testatrix, looked after it, gave orders and attended to everything. The testimony further tended to show that testatrix, during that time and thereafter, was a large woman with poor eyesight and with physical infirmities, but with good mind, and that she always signed the checks, though Julia looked after the collection of moneys arising from rentals on much real estate owned by her, and that Julia deposited such receipts in the bank to the credit of her mother. The property of testatrix consisted mainly of residence properties in the city of St. Louis, and during her lifetime she conveyed separate parcels of said properties, but not all, to her daughters, both contestants and contestees, and that such conveyances covered property mentioned in the will, but were not made contrary to the terms of the will, but in pursuance thereof, merely anticipating its utility for the same purpose.
Several years prior to the execution of the will contestants Mary Canty and Jennie Boeckmann had married and lived apart from testatrix. Julia and Kate remained unmarried and lived with testatrix. There was testimony tending to show that Julia supervised all of the business of testatrix, both before and after the execution of the will, and that she was "boss" of her mother's household, and that testatrix stood in awe of her. Contestees offered an abundance of testimony tending to disprove the allegations of the petition and in contradiction of the evidence of contestants. *Page 102
The attorney, who drew the will, at the instance of contestants was not permitted to testify to any communications made to him by testatrix concerning it. Upon the issue submitted, namely, of undue influence, the jury found "that the paper writing produced and read in evidence was not the will of Margaret E. Halpin, deceased." After an unavailing motion for a new trial, contestees have duly prosecuted their appeal to this court, complaining that the question involved should not have been submitted to a jury; that they were injured by certain harmful evidence; that the court rejected competent and material evidence offered by them, and that the jury was confused by misleading instructions. Other facts will be noted in the course of the opinion.
I. The assignment that the trial court should have sustained appellants' demurrer, offered at the close of plaintiffs' case, cannot be properly urged. The general rule applicable to the state of the record, under such circumstances, is that by introducing testimony after the instruction in the nature of a demurrer to the evidence has been overruled, theDemurrer. demurrant takes the risk of aiding plaintiffs' case, waives his demurrer, and cannot afterwards be heard to complain of its refusal. [Weber v. Stroebel, 236 Mo. l.c. 660; Burton v. Holman, 231 S.W. 630, and cases cited.]
II. The court properly overruled appellants' request for a peremptory instruction at the close of all the testimony. There was some testimony tending to show undue influence on the part of Julia Halpin over the mind of the testatrix. ThisPeremptory was chiefly found in the testimony of Mrs.Instruction: Boeckmann, who not only testified to a ratherSubstantial helpless condition on the part of testatrix, butEvidence. that she "was scared to death of that girl," and that Julia would not permit anyone to talk business to her mother, and that Julia told witness that she had gotten all she would get of her mother's property and that *Page 103 she would see to it that witness got no more; that Julia would raise disturbances and get testatrix excited and that Julia "beat up" those of the household who did not do her will.
Mrs. Canty testified that "Juha made everybody mind over there;" that she went to her mother's house several times and "was scared to death to say anything," and that when she would say something she was informed that she "had nothing to say;" that she was married, and that she had no business to come there "to say anything;" that it was Julia who thus talked to her, and that on November 30, 1917, witness hired a machine and took testatrix back home after a visit; that when she got there her mother started crying, and that Julia said to her not to get worked up, that she had some insurance papers for testatrix to sign and that Julia gave her some papers, which she signed, and that witness found out subsequently that such papers were deeds and not insurance papers. There was substantial testimony, therefore, to submit the case to the jury on the question of undue influence. [Naylor v. McRuer, 248 Mo. 423; Grundmann v. Wilde, 255 Mo. 109; 39 Cyc. 681.]
III. Moreover, the testimony was sufficient to establish a confidential relation between testatrix and Julia. It appeared that Julia in effect managed the business of testatrix for some time prior to the execution of the will and continuously thereafter until her death. This shows a fiduciaryConfidential relation and shifts the burden on the question ofRelation. undue influence. [Byrne v. Byrne, 250 Mo. 632, l.c. 646; Grundmann v. Wilde, l.c. 116.]
Under such circumstances the law presumes the bequest to have been made under the compulsion of undue influence and the burden is upon the recipient of the bounty to overcome such presumption (Burton v. Holman, 231 S.W. 630; Sittig v. Kersting,223 S.W. 742, l.c. 748; Rayl v. Golfinopulos, 233 S.W. 1069), and such *Page 104 presumption must be rebutted by testimony and the credibility of that rebutting testimony is for the jury. [Mowry v. Norman,204 Mo. 173, l.c. 191; Gannon v. Laclede Gas Light Co., 145 Mo. 502.]
IV. Complaint is made that it was prejudicial error to permit Mary Canty to testify that in a certain business transaction had with her mother testatrix had said that the said Mary Canty would get her share when she, testatrix, made her will. This was before the making of the will, and was offered for theState of Mind. sole purpose of showing the state of mind of testatrix. Wide latitude is permitted in contests of this character, and such testimony cannot be admitted for the truth of such statements, but solely and alone for the purpose of showing the mental state of the testatrix. Such testimony is only material to show the state of affections or the condition of the mind of the testatrix, and is received as external manifestations of a mental condition and, unsupported by any other testimony, would not be admissible to show undue influence. Here, however, such testimony, when considered in connection with other evidence, was admissible. [Teckenbrock v. McLaughlin, supra, l.c. 549.]
V. We now come to a more serious proposition. Contestees called John B. Dempsey, an attorney, as a witness. He had prepared the will for testatrix, and contestees sought to have him reveal the facts connected with his employment and the preparation and execution of the will. Contestants objected onAttorney: the grounds that such facts were privilegedPrivileged communications as being between an attorney andCommunication. client. The objection was sustained and such testimony excluded. The court erred in excluding that testimony. Contestants challenged by their action the due execution of the will. They say that the testatrix had no will, but that the paper writing in controversy was the will of the contestees substituted *Page 105 for the will of the deceased. In cases of this character the law permits a wide range in the matter of testimony and it becomes a matter of the highest importance to ascertain the state and condition of mind of deceased at the time of the execution of the will, and no one would be better qualified to present to the jury that condition of mind than the attorney who prepared the will for the deceased. The privilege only exists in favor of the client, and it is a right of the client and his representatives to waive the privilege, and moreover the rule excluding confidential communications does not apply after the client's death, in litigation between parties, all of whom claim under the client, and so where the question before the court involves the validity or genuineness of an alleged will, the attorney of the testatrix may testify as to matters relevant to the issue. 40 Cyc. 2308; Thompson v. Ish, 99 Mo. 160, l.c. 176, 177.] Furthermore, there was no privilege in this case because a third party was present. [40 Cyc. 2377.]
Contestants should not be permitted to challenge the validity of the alleged will on the grounds of undue influence and then seek to close the reservoirs of information against yielding up the very best and the most potent evidence.
VI. The court also erred in refusing to admit the testimony of Mrs. Virginia Dempsey, the wife of John B. Dempsey, the attorney who prepared the will. Mrs. Dempsey was a friend of the testatrix. Her husband was called by testatrix to her home to discuss the questions involved in the preparation ofWife of her will. Mrs. Dempsey accompanied him and was presentAttorney. during the interview. Mr. Dempsey had testified that he always had his wife accompany him when he made a visit in the evening, calling on a client, and for this reason the court excluded the testimony. This was error. Mrs. Dempsey was not an intermediary employed by her husband for the purpose of facilitating communications between attorney and client, and therefore *Page 106 the rule did not extend to her (40 Cyc. 2362), and she should have been permitted to have given all the facts of said interview.
It is not necessary to consider other questions raised by appellants.
For the errors above enumerated this case must be reversed and remanded for a new trial and it is so ordered. Railey andWhite, CC., concur.