(107 A.) Counsel for the appellees objected to the introduction of the journals and to the oral evidence offered to contradict the "ordinance, as presented to the court," and to the introduction of the two other ordinances mentioned, and the entries in the journals relating thereto, and the second, third, and fourth exceptions are to the rulings of the court below admitting such evidence. The fifth exception is to the order of the court below quashing the proceedings of the highway engineer and the appeal tax court.

Section 221 of the Charter of Baltimore ments referred to had been omitted. The City (Weeks' Edition) provides:

chief clerk of each house and signed by the Governor, with the seal of the state annexed. All this would seem to be better evidence of what a law is than the journals of the two branches of the Legislature, each journal being kept and attested only by the chief clerk of his particular branch."

Fouke v. Fleming, supra, has been repeatedly cited and quoted with approval by this court. Annapolis v. Harwood, 32 Md. 471, 3 Am. Rep. 161; Berry v. Baltimore, etc. R. R. Co., 41 Md. 446, 20 Am. Rep. 69; Ridgely v. Baltimore City, 119 Md. 585, 87 Atl. 909; Jessup v. Mayor & C. C. of Balto., 121 Md. 566, 89 Atl. 103; Thrift v. Towers, 127 Md. 62, 95 Atl. 1064.

The case mainly relied on by the appellee is Berry v. Balto., etc., R. R. Co., supra. But in that case Judge Alvey said:

"The engrossed bill, as it was finally acted on by the two houses of the Legislature, with

the indorsements thereon by the proper officers, as to the action of the respective houses, together with the journals of both houses, have been produced from the custody of their proper custodian; and, from the evidence thus furnished, it is made clear beyond all question or dispute that the particular section of the act involved, as it passed the two houses of the Legislature, is essentially different from the corresponding section in the act that received the imprint of the Great Seal, the signature of the Governor, and was lodged in the office of this court for record."

In disposing of the contention of counsel that under the cases of Fouke v. Fleming, supra, and Annapolis v. Harwood, supra, the court had no right to examine the "engrossed bill with its indorsements" and the journals, he said:

question of the constitutional enactment of what purports to be a statute, they all seem to concur in maintaining that no statute, having the proper forms of authentication, can be impeached or questioned upon mere parol evidence. Nor do we decide in this case that the journals of the two houses, though required by the Constitution to be kept as records of their proceedings, would be evidence per se upon which the validity of a statute, having the required authentication, could be successfully questioned as to the manner of its enactment. But we think the journals, in connection with other competent evidence upon the subject, may be examined as means of information to aid in the action of the Legislature on any particular arriving at a correct conclusion as to what was

bill before it."

In the case at bar the ordinance, as engrossed for its third reading, pursuant to the requirements of the city charter, and the indorsements thereon by the proper officers,

or by their authority, show that the ordinance in question was passed by the city council and approved by the mayor in the form in which it was produced in court, and Berry v. Balto., etc., R. R. Co., supra, does not sustain the contention that the journals and the parol evidence admitted by the court below are sufficient to overcome the presumption arising from the due authentication of the ordinance. In the case of Warehouse Co. v. Lumber Co., 118 Md. 139, 84 Atl. 188, Judge Pattison, speaking for this court, said:

"Upon the authorities cited and from the information to be gathered from such engrossed House and Senate, we think they are a proper and enrolled bills and the said journals of the source from which the court may acquire information as to whether the statute was constitutionally passed and is a valid and subsisting law."

In the case of Ridgely v. Baltimore City, supra, Judge Burke said:

"It would seem to be definitely settled in this state that an authenticated statute cannot be impeached by the Legislature journals alone, or by mere parol evidence."

"In those cases it was not made distinctly to appear that the particular provision of the statute as published did not receive the legislative assent; the evidence not being such as the court was willing to accept to overcome the strong presumption arising from the due authentication of the statutes there involved. It was assumed, from the fact that the bills, as published, corresponded in all respects with the bills as engrossed, that they did receive the assent of the Legislature. But in the case now before us, it is plainly shown by most unquestionable evidence that the third section of the bill as engrossed, before the third reading and the passage thereof, pursuant to the require-lished copy of the law correspond, we do not ments of the Constitution, * as it ac- feel authorized to assume they are erroneous, tually passed, is essentially different from the and decide the law to be according to the evicorresponding section in the bill that was at- dence of the proceedings of the Legislature, as tested, sealed, signed by the Governor, and filed furnished by the journals of the two houses."

for record."

After referring to a number of cases, Judge Alvey further said:

"But while the authorities just cited maintain that it is the right and duty of the court to go behind the authentication of the statute, and to receive evidence, such as that furnished by the engrossed bills, with the indorsements thereon, and the journal of the proceedings of the two houses of the Legislature, upon the

And he then quotes the statement of the court in Fouke v. Fleming, supra:

"Seeing that the engrossed bill and the pub

In the still later case of Jessup v. M. & C. C. of Balto., supra, where the court held parol evidence to be inadmissible, Judge Urner, speaking for this court, said:

"While the decisions of this court recognize its right and duty, in passing upon a question like the present, 'to receive evidence such as that furnished by the engrossed bills, with the endorsements thereon, and the journal of proceedings of the two houses of the Legislature'

(107 A.)

199(4)-PRIVILEGED COMMUNICATIONS-ATTORNEY AND CLIENT. Unless provided otherwise by statute, communications by a client to an attorney who The defendant objected to the admission drafted his will, in respect to that document, of this testimony on the ground that it was and all transactions occurring between them a privileged communication. The court sus

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

tained the objection, and this ruling of the court presents the main question upon this appeal.

Lord Brougham, in the early case of Greenough v. Gaskill, 1 My. & K. 98, in speaking of the rule which protects from disclosure all confidential communications between solicitor and client, said:

"It is founded on a regard to the interest of justice, which cannot be upholden, and to the administration of justice, which cannot go on without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown on his own legal resources; deprived of all professional assistance, a man would not venture to consult any skillful person, or would only dare to tell his counsellor half his case."

Prof. Wigmore, in his work on Evidence (vol. 4, par. 2314), after discussing the question of privilege as applicable to attorney and client in cases, other than will contests, says:

"But for wills a special consideration comes into play. Here it can hardly be doubted that the execution and especially the contents are impliedly desired by the client to be kept secret during his life time, and are accordingly part of the confidential communications. It must be assumed that during that period the attorney should not be called upon to disclose even the fact of a will's execution, much less its tenor. But, on the other hand, this confidence is intended to be temporary only. That there may be such a qualification to the privilege is plain."

The privilege is the client's and not the attorney's. The rule exists for the benefit, not of the attorney, but of the client. It does not rest simply upon the confidence reposed by the client in the solicitor, for there is no rule in other cases in which, at least, equal confidence is reposed; in the cases, for instance, of medical advisers and patients, and of clergymen and prisoners. It seems to rest, not upon the confidence itself, but upon the necessity of carrying it out. sell v. Jackson, 9 Hare, 387.

"It would seem to be a mere arbitrary rule to hold that it belongs to one of them rather than to the other."

In that case the distinction was made between cases in which the contest was between parties claiming under the client and those cases where the contest was between parties claiming under the client and third persons, holding that in the first of these cases the rule did not apply, while in the second it did. Blackburn v. Crawford, 3 Wall. 175, 18 L. Ed. 186.

In Glover v. Patten, 165 U. S. 394, 17 Sup.

Ct. 411, 41 L. Ed. 760, it is said:

"In a suit between devisees under a will, statements made by the deceased to counsel respecting the execution of the will, or other similar documents, are not privileged. While such communications might be privileged, if offered by third persons to establish claims against an estate, they are not within the reason of the rule requiring their exclusion, when the contest is between the heirs or next of kin."

In Re Young's Estate, 33 Utah, 382, 94 Pac. 731, 17 L. R. A. (N. S.) 108, 126 Am. St. Rep. 843, 14 Ann. Cas. 598, the court, after declaring that the statute of that state was but declaratory of the common law, said:

*

"The material question, therefore, is: Did the privilege at common law extend to will contests between heirs of the deceased ancestor, where the issues of duress, undue influence, or insanity are involved? In some of the cases a distinction is sought to be made between a protestant and a contestant of a will, and it is accordingly held that the privilege does not apply when the attorney is called in support of a will. Such cases, however, are not numerous, and the reason for the holding is fairly stated in the case of In re Nelson, 132 Cal. 182, 64 Pac. 294. Where the grounds of contest are duress, undue influence, or incapacity, we cannot perceive upon what reason such a distincclient, and he may waive it or enforce it as to tion can arise. The privilege belongs to the him may seem proper. The policy upon which the privilege rests is humane in purpose, practical in its application, and salutary in its reRus-sults when applied as it was intended it should be under the rules of the common law. The sole purpose of the privilege was to protect the client's interest. Under it he could freely communicate to the attorney all matters relating to without fear of having such matter divulged by a controversy between himself and another his attorney. In this way the client could obtain the benefit of the advice and counsel of one learned in the law without being exposed to the danger of having his statements turned into a weapon against him. If such were not the law, no man could safely seek or obtain advice and counsel from an attorney, and the very purpose for which such advice is usually sought would be frustrated. But do these reasons apply to will contests where capacity or undue influence is in issue? What is the purpose of such a contest? It can have but one purpose, namely, to determine whether or not the document presented as the last will and testament

In the case of Russell v. Jackson, supra, which seems to be generally regarded as the leading case upon the rule, the contest was between the heirs and devisees of the will,

and the court in that case said:

"The courts, when called upon to apply it, must of course have regard to the foundation on which it rests, and not extend it to cases which do not fall within the mischief it was designed to prevent. In cases where the rights and interests of the client or of those claiming under him come in conflict with the rights and interests of third persons, there can be no difficulty in applying the rule."

In that case, as in the case before us, the question was to which of the two parties claiming under the client the property be

(107 A.)

If

it be contended upon any reasonable ground | 1004; Scott v. Harris, 113 Ill. 447; O'Brien that the testator had any interest in or desire to v. Spalding, 102 Ga. 492, 31 S. E. 100, 66 Am. conceal his real intentions in such a matter St. Rep. 202; In re Loree's Estate, 158 Mich. when such intentions are called in question aft- 377, 122 N. W. 623; 2 Wharton on Evidence, er his death? Did he not know when he had 591; Blackburn v. Crawford, 3 Wall. 175, 18 the will prepared that it would have to be made L. Ed. 186. public and established as his will in a proper court before it could become effective? therefore the document produced is not actually his will, but rather that of another who induced him by undue influence over him to make it, can it be said that the deceased wants such a will established as his own? Would not the law in holding to such a policy foster that which it abhors, namely, deceit and fraud? In this regard, who may raise the question? Certainly not strangers to the estate, but only those who are either heirs at law of the deceased or those who are beneficiaries of his bounty and made so by the will. If a particular beneficiary obtained the bequest through duress, deceit, or undue influence over the mind of the testator, should such beneficiary be permitted to invoke this most salutary privilege against the real heir, and thus, perhaps, be enabled to conceal the very thing the law abhors, and for which it wisely requires the probate of all wills? Moreover, is the right to invoke the privilege to be given to one heir who proposes the will, and denied to the other who opposes it?

"The authorities cited above make it reasonably clear that the right to invoke the privilege was withheld from both at common law when the issues involved affected the integrity of the will. If this be so, why should not the attorney who prepared the will be required to disclose all that he knows concerning the real state of mind of the testator? The attorney may know by whom and to what extent the testator was influenced. Again, he may know that the testator was not influenced at all, and may further know the very reasons that controlled him in doing what he did in making the will. In the first instance, should the person causing the will to be made be protected by the privilege? And in the latter case, should the one who claims undue influence be permitted to invoke it and thus make certain circumstances to which he points and which may be easily explained to stand as the real truth? The privilege was not extended to will contests at common law, and,

as our statute is no broader than the common
law
the subject, we have no right, even
upon
if we were inclined to do so, to extend the priv-
ilege to will contests."

[1] The rule, we think, is well stated in the note In re Young, 17 L. R. A. (N. S.) 108, in which it is said:

The defendant, in support of her contention that the privilege exists in this case and that the evidence offered should not have been admitted, relies chiefly upon the case of Chew v. Farmer's Bank, 2 Md. Ch. 231, which was an action originally begun by a widow to assert certain claims against lands owned by her husband at the time of his death, but which the devisees under his will had conveyed to strangers. During the litigation. the widow died, and her executor was admitted as complainant in her stead, and the action revived. She had left a will; and, upon objection by her executor, the attorney who drew her will was not permitted to testify as to the provisions therein relative to the claims in question, or as to the reasons assigned by her for making such provisions, or as to anything which occurred in the conversation between her and the witness upon the subject. The court declared that, if anything was said in the course of that conversation between the deceased and her attorney-they standing towards each other in the relation of legal adviser and clientwhich could, if revealed by the witness, operate to her prejudice, the rule prohibiting such relations applied.

In that case, the defendant did not claim through the testatrix or under the will concerning which the evidence was offered. They were not only not claiming under her, but were resisting the claim made by her, and the action of the court in refusing to admit the evidence was altogether consistent with the rule above stated.

The defendant also cited the case of Gurley v. Park, 135 Ind. 442, 35 N. E. 279, in support of her contention. The Indiana court, in discussing that case, in the subsequent case of Kern v. Kern, supra, said:

"While the rule announced by the court in Gurley v. Park is doubtless a correct one in disputes between the client's representatives on the one hand, and strangers on the other, we do not think it applies where both the litigating

parties claim under the client. The attention of the court does not appear to have been called to this distinction, and none of the cases bearing "It may be laid down as a general rule of upon it is referred to in the opinion. We relaw, gathered from all the authorities, that, un-gard this qualification of the general rule as a less provided otherwise by statute, communica- very material one, and, to the extent that the tions by a client to the attorney who drafted opinion in Gurley v. Park conflicts with the his will, in respect to that document, and all view we have expressed, that case is overruled." transactions occurring between them leading up to its execution, are not, after the client's death, within the protection of the rule as to privileg

ed communications, in a suit between the testa

tor's devisees and heirs at law, or other parties who all claim under him." Russell v. Jackson, supra; In re Young, supra; Glover v. Patten, supra; Kern v. Kern, 154 Ind. 29, 55 N. E.

There are cases in which evidence of the character mentioned, where all the parties claimed under the testator, has been excluded; but most of these, if not all of them, are based upon statutes and not upon the common law.

The court erred in our opinion in not per