I was not present when the $500 note was executed by Stone, but in the conversation just related Mr. Minter said he wanted the deed made, and he would sign it, and that he and Stone would arrange balance by Stone's handing him $2,300 and his note for $500, and that both money and note were to be returned by him to Stone." On cross-examinathe witness said:

Stone. In writing this deed I was in his (Minter's) retainer.

I had been of counsel for both Minter and

Q. Who represented Stone in that matter?

4. Nobody but himself.

Q. Who appealed to you to draw that paper [the deed]?

A. Mr. Minter.

Q. You didn't represent Stone at all? A. No, sir, I was doing this for Mr. Minter.

And also: "A few days before I wrote the deed, I heard Mr. Minter and Mr. Stone talking together in my presence about this matter. In that conversation Minter told Stone that he was going to give him that piece of land valued at $2,800 as compensation for his board and the services that Stone had rendered him in taking care of him. He said to Stone that the money that he was to pay him was simply a sham, and fixed so he could say, if he was inquired of about it, that he had got the money from him. He was talking to Stone then." Counsel for defendant objected to this evidence, and moved to rule out the same on the ground that the facts testified to were a privileged communication between attorney and client, and therefore inadmissible. The court sustained the motion, and ruled out the evidence, to which ruling the plaintiff excepted. The plaintiff then introduced number of witnesses, whose evidence tended to support the allegations of the petition. The plaintiff having closed, defendant moved for the grant of a nonsuit, which was ordered, and to which judgment the plaintiff also excepted.

debt, he suggested that the petitioner should pay him $2,300 in cash, and execute and deliver to him a promissory note for $500, being the consideration to be mentioned in the deed, and that subsequently he (the intestate) would refund the money and note thus to be given to petitioner. That intestate stated as a reason for desiring to make this arrangement that he was old and feeble, and did not desire to be worried by his relatives, and that the arrangement proposed by him would be the means of concealing from his relatives the true transaction. That, relying in the promise of the intestate to repay him the sum of $2,300, and to return to him his promissory note, petitioner agreed to the proposition, and on June 29, 1896, he paid to the intestate $2,300 in cash, and delivered to him his promissory note for $500, and received a deed from the intestate conveying to him the aforesaid land. That shortly thereafter the intestate did return and deliver to him his note, with the statement that, as soon as he was well enough, he would go to the bank, procure the money, and return it also to the petitioner. That the intestate was prevented from so doing by sickness which terminated in his death. The answer denied specifically and at length all the allegations in reference to the indebtedness and the contract as set up by petitioner. On the trial of the case, Maj. John C. Key was introduced as a witness, and testified as follows: "I knew William S. Minter in his lifetime, and I know plaintiff. This deed [referring to a deed handed to him]. William S. Minter to James A. Stone, dated January 23, 1896, is in my handwriting. I wrote it at the instance and request of Mr. Minter. He and Mr. Stone were present. Mr. Minter said on that occasion. in the presence of Mr. Stone, that he and Mr. Stone had agreed upon the compensation he was to give Stone for his board, lodging, and attention for several years past. He said that he and Stone had been talking a long time about this compensation, and that he had agreed to give Stone that piece of land, and wanted me to write a deed to it to Stone as a compensation for his having remained and boarded there at 1. Section 5198 of the Civil Code declares Stone's. He said that they had agreed on that certain admissions and communications the price of the land at $2.800, and he was are, from public policy, to be excluded as evigoing to make him a deed to that land; that dence. Among these are communications he had been talking about making a will, but between attorney or counsel and client. Seehe thought that arrangement would not do; tion 5271 of the same Code gives the rule to that it would involve Stone in some litiga- be enforced more explicitly. Its provisions tion with his (Minter's) kin after his death. are that "no attorney shall be competent or He spoke of Stone having been his friend and compellable to testify in any court confidant, and said that he had, perhaps, cre- for or against his client, to any matter or ated a suspicion among his kindred that he thing, knowledge of which he may have acwould do more for Stone than for them. He quired from his client by virtue of his relasaid that Stone had done more for him than tion as attorney, or by reason of the anticianyone else had done, and that he did not pated employment of him as attorney, but want Stone to get into such litigation, and shall be both competent and compellable to he had decided to make him a deed to the testify, for or against his client, as to any land. He said that his people would be ask- matter or thing, knowledge of which he may ing him about the matter of this deed, and. have acquired in any other manner." Secin order that he might have an excuse, and tion 5199 still further enlarges the rule reas Stone had the money to pay him the $2,-lating to privileged communications, and de800, he wanted it to appear as if it was a clares that "communications to any attorney, sale, and that he would pay the money back or his clerk, to be transmitted to the atto Stone. He said that was the agreement. I torney pending his employment, or in antici

a

pation thereof, shall never be heard by the tion. The idea which seems to be involved court." The rules established by these sections in the establishment of the rule is not that of our Code are, in their effect, the same as ex- of mere secrecy. It is not that the client has isted at common law, except that under the imparted to the attorney information about common-law rule the attorney could not be a matter which is to be concealed from the compelled to testify as to communications, nor public, but it is founded on altogether a difto disclose papers, or letters, or entries made ferent principle. Having respect solely to by him in that capacity; while our statute the free and unembarrassed administration goes to the extent of declaring that the at- of justice, and to the security of all men in torney shall not be competent or compellable the enjoyment of their civil rights, no man is to testify for or against his client. Lord under a legal obligation to disclose facts or Chancellor Brougham declared that the rule circumstances which would render questionawas not founded on any particular import- ble his demand for a particular right, or imance which the law attributes to the business pair his defense to another's demand. Origiof legal professors, or any particular disposi- nally, suitors and defendants appeared pertion to afford them protection, but out of re-sonally before the tribunal which interpreted gard to the interests of justice, which could and administered the law. Subsequently, not be upheld, and to the administration of however, when the application of legal prinjustice, which could not go on, without the ciples and the forms of procedure became aid of men skilled in jurisprudence, in the more complicated and intricate, the services practice of the courts, and in matters affect- of persons having knowledge of the one and ing rights and allegations which form the skill in the other came into demand, and to subject of judicial proceeding; and that, if fully protect the rights of parties litigant such communications were not protected, no the procurement of the services of persons man would consult a professional adviser skilled in the law became universal. No with a view to his defense, nor safely go in- man being compelled to himself disclose the to a court either to obtain redress, or to de- weakness of his case, it followed almost as fend himself. Greenough v. Gaskell, 1 Myl. a necessary consequence that the person who & K. 102: Bolton v. Liverpool, 1 Myl. & K. represented him and presented that case 94, 95. Mr. Greenleaf, in the first volume of could not do so. If it were otherwise, the his Law of Evidence (§ 239), says that this free administration of justice would be reprivilege is not personal to the attorney, but stricted, and the ascertainment and enforceis a rule of law for the protection of the cli- ment of rights endangered. Therefore when, ent. Mr. Weeks, in his treatise on Attor- in order to obtain the measure of his rights, neys at Law (§ 144), gives the general rule the client resorted to a representative who established by the weight of authority on could better judge the merits of his case, and this subject as follows: "An attorney is disclosed to him the facts upon which the asprivileged from giving evidence of any con- certainment of his rights must depend, the fidential communication made to him by his law of public policy put a seal upon the lips client, or concerning which he has been in- of his counsel just as effective as the interformed in his professional capacity as attor-est of the client placed a ban upon his own ney for the client. The privilege is that of the client, and not that of the attorney." The same author in § 151, says, on authority, that the rule does not extend to information acquired by him in any other way than by such confidential communication by the client and Mr. Best, in his work on the Principles of Evidence (§ 581), says that the privilege does not extend to matters of fact which the attorney knows by any other means than confidential communication with his client, though, if he had not been employed as attorney, he probably would not have known them. It appears that Mr. Key was an attorney, and that he was employed as such by the deceased at the time the deed was written. It is thereby established that the relation of client and attorney did exist at the time the deed was executed between Stone and the intestate. It is, however, contended that, inasmuch as the privilege which the law allowed is for the benefit of the client, and not counsel, the rule relates only to confidential communications existing becanse of such relation: that, inasmuch as the communication made by the client to the attorney was in the presence of the other party to the contract, it was not in law such a confidential communication as could not be given in evidence by the attorney. There seems to be very much force in this conten

disclosure; and, to the credit of the profession be it said, that as a rule almost without exception, the private matters of the client communicated to counsel are held sacred. There is no reason why an attorney may not be called as a witness to give evidence of facts within his knowledge. In the administration of justice the courts will compel him so to do, and to place before the jury his knowledge of any fact in issue, except as to those which his client, depending on him for advice and direction, has seen fit to communicate in order to obtain the full measure of his right. These are deemed confidential in the interest of the client, and privileged for his protection: but when communicated to other persons, and when others are allowed the same opportunities of knowledge that the attorney possesses, the confidential relation necessarily did not exist, and the privilege does not attach. In the present case the communication which was claimed to be privileged was transmitted to the attorney in the presence of the other party to the contract. It is true that by agreement between them the public were not to be informed of their private arrangement. Not because such information would add to the strength or increase the weakness of either side. The parties were apparently in full accord. No differences existed between them, and in or

It is true

der to carry out terms upon which they were the trial of this case, which accompanies the fully agreed the communication was made to record, discloses that in his opinion the proof the attorney in the presence of both, and the offered to establish the fact of the promise secrecy necessary to be observed did not af- by the intestate to repay the plaintiff the fect the contract, but was for the purpose of sum of $2,300 paid under the circumstances avoiding criticisms and questions of stran- detailed was an effort to ingraft on the deed gers to their agreement. It is the secrets of a verbal agreement inconsistent with its the client which affect his right that the law terms. We do not so understand it. The acdoes not permit the attorney to divulge, and tion which was instituted was in the nature it seems to be well settled on authority that of an action for money had and received, if the communication made by the client to which always lies where another is in posthe attorney is in the presence of the other session of money which, er æquo et bono, party to the contract, and it comes within ought to be paid to the plaintiff. The deed his knowledge, such communication is not em- recites a consideration of $2,800. braced in the rule which prohibits that it that the proof submitted tended to show that may be given in evidence by the attorney the true consideration was not $2,800, nor when called on so to do. Mr. Weeks, in any other amount of money, but was the 159 of his treatise on Attorneys at Law, de- payment of a debt claimed by the petitioner clares as an exception to the general rule to be due him by the intestate to the amount which we have stated that the statements of of $2,800, and that, while the petitioner parties made in the presence of each other paid to the intestate $2.800, it was on an may be given in evidence by attorneys, be- agreement that the land was in fact conveyed cause such statements are not in their na- to pay the debt, and the $2,800 paid to the ture confidential, and cannot be regarded as intestate was to be repaid to the petitioner. privileged. Mr. Wharton, in his Law of Such an agreement in no wise affects the Evidence (§ 587), on authority says: "Privi- validity of the deed, nor does it change any lege, also, has been held not to extend to com- of its terms. It is true that it shows the munications made to counsel in the presence consideration to be different from that which of all the parties to the controversy." In is expressed in the deed. The consideration the case of Brand v. Brand, 39 How. Pr. 193. of a deed may be inquired into without afit was ruled that communications to counsel, fecting the terms of the contract, and, whatmade in the presence of the adverse party, ever was the consideration of the deed,are not privileged, and the counsel is a com- whether it was $2.800, as expressed, or petent witness thereon. The same ruling is whether it was the payment of a debt of made in Britton v. Lorenz, 45 N. Y. 51. In $2.800,-really becomes immaterial. So that Hummel v. Kistner, 182 Pa. 216, 37 Atl. 815, there was a consideration, and the effect of it was ruled that "on a bill in equity to set the instrument under this proof is to vest aside a deed made by a father in his lifetime in the grantee all the title which the grantor to his daughter, declarations of the deceased possessed. Nor do we think, as suggested in to his attorney while he was writing the deed his opinion by the judge, that the evidence are not privileged, when made in the pres- shows that the right of action, if any there ence of both parties to the transaction." this connection, see also Wyland v. Griffith, not in him. The suit was not instituted on was, was in the wife of the petitioner, and 96 Iowa, 24, 64 N. W. 673: Frank v. Morley, the original agreement to pay Mrs. Stone 106 Mich. 635, 64 N. W. 577; Rice v. Rice, for the board of the intestate. It has for its 14 B. Mon. 417; Whiting v. Barney, 30 N. Y. foundation the agreement on the part of the 330, 86 Am. Dec. 385. Our own court seems to have recognized the same rule. In the, intestate to repay to the petitioner the case of Corbett v. Gilbert, 24 Ga. 454, it was amount of money which he turned over to ruled that an attorney who is called on to the intestate under the agreement alleged. write a bill of sale is not prohibited by the We are not to be understood as passing on statute from giving evidence of a conversathe merits of this case, nor deciding as to tion between the parties in relation to the whether the evidence offered was sufficient contract. and in the case of Brown v. Mat- to establish the contention of the plaintiff. thews, 79 Ga. 1, 4 S. E. 13, this court, in dis- The questions of fact involved must be decussing the statute now under consideration. termined by the jury. For the reasons which said. "Furthermore, what is known to both we have given, it is our opinion that the eviparties is not a confidential secret in a sub-dence of Maj. Key was admissible, and we sequent controversy between them." See also Burnside v. Terry, 51 Ga. 186. See also in this connection O'Brien v. Spalding, 102 Ga. 490, 31 S. E. 100, and notes to same case as reported in 66 Am. St. Rep. 202-213. We are of the opinion, under the authorities cited above, that the court erred in ruling out the testimony of Maj. Key.

In

2. An examination of the opinion of the very able and careful judge who presided in 50 L. R. A.

might go further, and add that without it the case ought to have been submitted to the jury for determination of the facts. As it is, we think the judge erred in ruling out the evidence of Key, and that he likewise erred in granting a nonsuit.

The judgment is therefore reversed.

All the Justices concur, except Fish, J., absent on account of sickness.

Emma E. HERTZ et al., Plffs. in Err.,

v.

Cecelia S. ABRAHAMS, Admx., etc., of
Moses Sheftall, Deceased.

1.

(110 Ga. 707.)

The intention of a testator, if legal. governs the construction of his will, and is to be ascertained from the words thereof. If he uses words which clearly create one es

tate, though he designed another, his inten

tion must yield to the rules of law. 2. A will is to be construed by the law existing when, upon the testator's death, the will takes effect. (a) Whether words in a will made by a testator who dies before the act of February 17, 1854, create an estate tail is to be controlled by the decisions of the English courts construing such or similar words in devises of real property, in connection with the statute de donis conditionalibus.

3. A devise to A for her separate use, and, in case she has no issue, to B, before the act of 1854, is a devise limited upon an indefinite failure of issue, which, under the English rules of interpretation, created an estate tail by implication under the statute de donis,

and is therefore enlarged into a fee-simple (a) An executory devise which was limited upon words importing an indefinite failure of issue of the first taker, under the law when the will in this case took effect, was uniformly held to be void for remoteness.

estate by our act of December 21, 1821.

The facts are stated in the opinion. Messrs. U. H. McLaws and Saussy & Saussy, for plaintiffs in error:

In the interpretation of wills the intention of the testator shall be diligently sought after, and effect given to the same so far as may be consistent with the rules of law. Weed v. Knorr, 77 Ga. 636, 1 S. E. 167; Olmstead v. Dunn, 72 Ga. 850; Wetter v. United Hydraulic Cotton Press Co. 75 Ga.

544.

Groce v. Rittenberry, 14 Ga. 232; Harris v. Smith, 16 Ga. 545; Griswold v. Greer, 18 Ga. 545, Affirmed in Payne v. Rosser, 53 Ga. 662; Hill v. Alford, 46 Ga. 251; Gibson v. Hardaway, 68 Ga. 370; Hudgens v. Wilkins, 77 Ga. 555; Wetter v. United Hydraulic Cotton Press Co. 75 Ga. 540; Matthews v. Hudson, 81 Ga. 120, 7 S. E. 286; Greer v. Pate, 85 Ga. 552, 11 S. E. 869; Chewning v. Shu- ' mate, 106 Ga. 751, 32 S. E. 544; Daniel v. Daniel, 102 Ga. 181, 28 S. E. 167; Sharman v. Jackson, 30 Ga. 224; Burton v. Black, 30 Ga. 638; Forman v. Troup, 30 Ga. 496; Tennell v. Ford, 30 Ga. 707; Doe ex dem. Sheftall v. Roe, 30 Ga. 453.

The devise did not create an estate tail; there was no devise to "the heirs of the body" nor to the issue of Mrs. Perla S. Solomons. The devise was to her, to her alone for her separate use, not subject to her husband's marital rights, and was to be devested in case she had no issue, that is, if she should die without having had any issue.

"Issue" in this will could only mean children, to carry out the intention of the testator.

The word "issue" is an ambiguous word; it may mean lineal descendants generally, or child or children, and the meaning depends on the intention of the testator.

Palmer v. Horn, 84 N. Y. 519; Deihl v. King, 6 Serg. & R. 29, 9 Am. Dec. 407; 2 Redf. Wills, 2d ed. pp. 34-37, note; 4 Kent, Com. 278, note; Edwards v. Bibb, 43 Ala. 672.

If the words admit of a twofold construc

tion the rule is to adopt that which may effectuate, rather than to frustrate; and if tend to make good the instrument, and to words are to be rejected or supplied by construction it must always be in support of the intent.

10 Bacon, Abr. 529; 1 Kent, Com. 510, 511; Edwards v. Bibb, 43 Ala. 669; Roe v. Vingut, 117 N. Y. 204, 22 N. E. 933; Tiedeman, Real Prop. No. 544.

The words "having" and "leaving" must. refer to something in existence at the time having and leaving occur.

Schmaunz v. Goss, 132 Mass. 141; Symmes

Edwards v. Bibb, 43 Ala. 673. As construing similar devises, and declarThe words of the devise-"I give and being the estates to be determinable or defeasible fees, seequeath to my sister, Mrs. Perla S. Solomons, wife of Lizar Solomons, my brick store on Congress street, not to be subject to her present husband's debts or her future husband's debts"-are sufficient to create a fee. The fee is not absolute; it is defeasible and determinable, "if she has no issue," the fee is transferred to his niece, Miss Nellie Sheftall Cohen, to be settled on her.

A defeasible or determinable estate in fee is a legal estate, recognized by the law; and that a fee may be limited on a fee by way of executory devise is also a well-recognized

rule of law.

Headnotes by SIMMONS, Ch. J.

NOTE. On the subject of estates tail, which is so extensively discussed in the above case, see also Pennington v. Pennington (Md.) 3 L. R. A. 816.

V. Moulton, 120 Mass. 343: Dorr v. Johnson, 170 Mass. 540, 49 N. E. 919; Whitcomb v.. Taylor, 122 Mass. 243.

In Morgan v. Thomas, L. R. 9 Q. B. Div. 643, the court says: "In this case we must read 'issue' as meaning 'children,' and 'children' as meaning 'children,' and in no other sense."

Cudworth v. Thompson, 3 Desauss. Eq. 256, 4 Am. Dec. 617; Richardson v. Noyes, 2 Mass. 56, 3 Am. Dec. 24; Jackson ex dem.. Staats v. Staats, 11 Johns. 337, 6 Am. Dec. 376.

The plaintiffs are entitled, as the sole heirs at law of their mother, Nellie Sheftall Cohen, to whatever their mother was entitled to under the will. The executory devise was a certain interest and estate, and so far