Collins's Petition. sideration the circumstances, and to exercise a sound discretion in granting or refusing the application, and that the remark of the Chancellor WALWORTH in Suydam v. Bartle, 9 Paige, 294, that when it is evident "that the complainant could have had a perfect remedy against all persons who were liable for the payment of the debt by a decree over against them for deficiency, if he had chosen to make them parties to his foreclosure suit, it might not be a proper exercise of discretion for the court of chancery to permit any further proceedings to be had in the action at law after the filing of the bill of foreclosure" was equally applicable, where the application for leave to sue is made after decree, and in the course of the opinion of the court of appeals in the case first above cited, the court says it is not difficult to see that cases might arise in which leave to sue upon the bond should not be granted upon any terms. The mortgagee may have so acted as to induce the party liable for the deficiency to refrain from protecting the property at the sale, and the property, though amply sufficient to pay the mortgage debt, may have been bought in by the mortgagee for a trifling sum. Other circumstances might exist which would induce the court to withhold its leave to sue upon the bond." These cases establish that the petition in this case is to be disposed of by the exercise of a sound discretion. We think there is no reason to doubt, but that the appellants might properly have been made parties to the action for foreclosure, with a view to charge them personally, in proportion to the assets received by them, with any deficiency that might accrue. Their liability arose out of the obligation of their intestate and ancestor, to wit, the covenant of guaranty executed by him. on his assignment of the mortgage to enforce the guaranty against his estate, through them; they might Collins's Petition. properly have been made parties under the act of May 4, 1863, and 2 Rev. Stat. p. 19, § 154. But whether this was so or not, we think the facts in this case disclose equitable reasons for denying the application. The liability on the guaranty accrued on December 1, 1869. It is shown apparently without contradiction that the mortgaged premises were then of sufficient value to realize the amount due, that the original mortgagee, Harriet Ann Miller, had by a subsequent reconveyance assumed the payment of the mortgage, and that her subsequent grantee had also assumed the same, and that both were at that time solvent and responsible, and have since become insolvent. It also appears that default in payment of the interest was made in the year 1873, and that the taxes on the premises were suffered to remain unpaid after the year 1869; that no claim was presented upon the guaranty against the estate of Daniel Bedell under the advertisement of the administratrix for such claims; that neither her representatives nor any of his next of kin were made parties to the foreclosure, nor did it appear that any notice of such foreclosure was given to them. The premises were sold under the foreclosure decree for the sum of $1,000, not enough to extinguish the interest and taxes, leaving as a deficiency an amount larger than the original mortgage. It may be that upon all these facts, no strictly legal defense to the action would arise, but it must be apparent that the extreme negligence of the petitioner and his assignor has operated to put the appellants in a position where the enforcement of this large deficiency against them would be greatly inequitable and unjust. The pe titioner seems to have so acted by his great delay as to deprive the appellants, who stand in the relation of sureties, of their remedies over against other parties. who were personally bound for any deficiency, and Sheridan v. Houghton. also, not only to have prevented them from protecting the property at the sale, but to have subjected them to serious loss by reason of its depreciation, if they are now held responsible for the deficiency. These circumstances seem to us quite abundant to call for a denial of the petition. It is urged that a right of action against the appellants exists upon the guaranty and upon their liability as distributees independently of the statute. It is not necessary for us to consider that question further than to say that if the position be well taken, that alone is a sufficient answer to this application, because, if the petitioner have such rights there was no necessity of applying for an order of the court, and the order should not be granted, inasmuch as it might be, in such case, a serious embarrassment to the appellants. We are of the opinion that the order of the court below should be reversed, and the motion denied, with $10 costs and disbursements. SHERIDAN v. HOUGHTON. N. Y. Supreme Court, First Department; General Term, January, 1879. EVIDENCE.-PROOF OF LOST OR DESTROYED WILL.-ATTORNEY AND CLIENT.-PRIVILEGED COMMUNICATIONS. A lost or destroyed will cannot be established on the testimony of two witnesses, if they differ materially either as to the beneficiaries, or the amount of bequests. If an attorney or counsel, having drawn a will or advised testator upon it, accepts a retainer to contest its probate, he cannot claim a privilege from testifying as a witness at the instance of the proponents.* *For the general rule, see Code Civ. Pro. § 835; Blackburn ↑. Crawfords, 3 Wall. 175; Allen v. Public Administrator, 1 Bradf. 221. Sheridan v. Houghton. Appeal by plaintiff from a decree of the surrogate of New York county. This was an application for the probate of a paper which was not produced. The proceeding was brought upon the petition of Julia R. Houghton, which alleged that the decedent, David S. Jackson, died in the city of New York, in January, 1872; and that prior to his death he made a will, which was in existence and in full force, unrevoked, at the time of his death, which, after his funeral, was read in the presence of the children of the testator, by Rev. T. M. C. Peters, and was then handed to the eldest son, David S. Jackson, Jr.; that diligent search and inquiry had been made for such will, and that she had not been able to obtain possession of the same, and could not learn where it was; that she was a legatee under such will, and therefore asked that proof be taken of its execution, &c. The application was made under 1 L. 1870, p. 828, c. 359, § 8, which is as follows: "Whenever any will of real or personal estate shall be lost or destroyed by accident or design, the surrogate of said county [New York], if such will might have been proved before him, if not lost or destroyed, shall have the same power to take proof of the execution thereof, as is now vested in and exercised by the supreme court." After an examination and proof before the surrogate, he decreed the probate of the will, and delivered an opinion, the parts of which material to this appeal, are as follows: "Mr. S. F. Cowdrey was also called as a witness. He testifies to having drawn several wills for the decedent, but he exhibits a remarkable lack of memory in reference to the circumstances of the preparation of the instruments. He also refused to testify, on the ground that he could not be obliged to disclose confi Sheridan v. Houghton. dential communications between himself and the decedent, who was his client. I will not discuss the question, whether he can claim the benefit of the statute in such a proceeding as the one before me, but I can't doubt but Mr. Cowdrey did prepare the alleged will, and that it was duly executed by the decedent, about a year previous to his death. The recollections of the two witnesses, Mr. Peters and Mr. Turrie, in reference to the contents of the alleged will, vary. Both agree in reference to the legatees thereunder, but not in reference to the amounts of the gifts. I am satisfied that, generally, the recollection of Mr. Turrie is trustworthy, and to be relied upon, in view of the particularity with which he specifies the facts; whilst the distinct recollection by Mr. Peters of a specific devise of property in Orchard street, to his son Frederick, entitles his testimony to be regarded as proof of that portion of the contents of the paper. I therefore, after a careful examination of their testimony, decide that the paper provided for gifts, as follows:" [Here the learned surrogate stated his findings of the contents of the said will, according to the testimony, and then continued:] "Probably the best witness on the important question of the contents of this paper would be Mr. S. F. Cowdrey, provided he could relieve his conscience from a sense of duty, which he thinks impels him to not disclose what he regards as confidential communications between himself and his client. But as Mr. Cowdrey has declined to give his testimony to aid me in the effort to determine the exact provisions of the will, I have been compelled to draw my conclusions from the testimony of the other witnesses, as above stated." From this decree Frederick H. Jackson, one of the heirs-at law and next of kin of the said David S. Jackson, appealed to the supreme court, and all others who |