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SPECIFIC PERFORMANCE — DEFENSES. — Where there are circumstances which will render the operation of a decree of specific performance harsh and inequitable the parties will be left to their remedy at law: Datz v. Phillips, 137 Pa. St. 203; 21 Am. St. Rep. 864, and note; Brown v. Pitcairn, 148 Pa. St. 387; 33 Am. St. Rep. 834, and note. To the same effect see Friend v. Lamb, 152 Pa. St. 529; 34 Am. St. Rep. 672, and note.

SPECIFIC PERFORMANCE-DAMAGES. -A court of equity may, in cases where the party is aot entitled to specific performance, grant relief by decreeing the repayment of the money expended on the faith of the contract: Green v. Drummond, 31 Md. 71; 1 Am. Rep. 14. Equity has jurisdiction to grant compensation in all cases of bills for specific performance, though denying the relief sought by the bill: Rider v. Gray, 10 Md. 282; 69 Am. Dec. 135, and noto.

SEIP's Estate.


by several persons who employ the same attoruey in the same business, made by them to such attorney in relation to such business, while priv. ileged as to their common adversary, are not privileged as between


ployed by the husband of one of three sisters equally interested in the subject matter of litigation is competent to testify in a subsequent contest between the sisters, involving the same matter, as to who were the partners he represented, and as to the declarations of the husband made during his lifetime, showing for whom he acted in employing the

attorney and managing the litigation. Wills--CONTEST-COMPROMISE.-No contestant of a will can compromiso

any thing beyond his personal interest in the contest, and is entitled to no more than his distributive share in a sum received by way of general

compromise. Wills—CONTEST—COMPROMISE–INTEREST.—One of three parties equally

interested in the contest of a will, but made a party defoudant, is presumed, in case of a compromise, to be entitled to an equal share with the other parties, and the burden of proof is on them to show a release of interest sufficient to rebut such presumption. M. C. L. Kline and J. Rupp, for the appellant. J. S. Biery, T. B. Metzger, and R. J. Butz, for the appellee.

430 WILLIAMS, J. The facts to be considered in the determination of this appeal appear in the auditor's report, which was concurred in and confirmed by the orphans' court.

From this report we learn that George Probst died testate in February, 1885, leaving a large estate. He left three half sisters to survive him, Christiana Knauss, Catharine Seip, and Lydia Probst. By his will he gave his estate to certain of his collateral relatives, excluding his half sisters and other relatives from any share whatever therein.

Those who had been excluded, or some of them, determined to contest the validity of the will; and for these Nathan Seip, the husband of Catharine, appears to have acted as agent. He consulted with and retained counsel, and took general charge of the preparation and conduct of the proceedings. An issue devisavit vel non was framed in which Mrs. Knauss and Mrs. Seip were named as plaintiffs, and in which Lydia Probst was named as one of the defendants. This was upon the list for trial, and in a position to be reached in a few days, when it was settled upon the payment of ten thousand dollars to the attorneys for the contestants.

The question now raised is, To whom did the money paid by the proponent belong? Lydia Probst alleges that she was entitled to share with her sisters in it, and they now claim the whole. This controversy was referred to an audio tor, who sustained the contention of the accountant, that Lydia Probst was not entitled to share in the money obtained by the settlement.

It should be remembered that the three sisters stood in the same position. They had certain rights under the intestate laws that the will denied. If the estate of George Probst was to be distributed under his will they were all alike excluded. If the will was set aside they would be admitted on exactly the same terms regardless of their apparent position on the record as parties to the issue, and of their contribution to the expenses of the contest. But the auditor and the court below held that the right of Lydia Probst to a share with her sisters depended 431 on the answers to two questions: 1. Was she

an active contestant on record with Mrs. Seip and Mrs. Knauss? 2. Did she contribute toward the expenses in carrying on the contest with the understanding that she should share in the proceeds realized”? The evidence relied upon to show that she was a contestant, and had promised to contribute to the expenses, consisted of the testimony of John Rupp, Esq., one of the counsel for the contestants, and the declarations of Nathan Seip, now deceased, made while the contest was being carried on and while it was in process of settlement. The testimony of Mr. Rupp was excluded because of his confidential relations to Mrs. Seip and Mrs. Knauss. The declarations of Nathan Seip were excluded because he was the husband of the decedent whose estate is now for distribution. The whole of the evidence relating to the ques. tions stated by the auditor being thus taken out of the case, the questions were decided against Lydia Probst, and the two sisters were allowed to retain the share of the third in the money realized from the settlement of the issue devisavit vel


Was John Rupp properly excluded on the ground of privilege? He is an attorney at law, and was employed as counsel for the contestants. If the issue had been on trial and the proponent had undertaken to examine him about what Blackstone calls “the secrets of the cause,” which had been communicated to him by his clients, it is clear that the clients could have objected, and relied on the fact that communications made by them to their counsel, relating to the cause, were privileged. But this was not a controversy between the contestants and their adversaries. It was a controversy among themselves. Here were three sisters standing in the same relation to the testator, and having the same interest in defeating his will. Two of them appeared as plaintiffs, and the other as one of the defendants, in the issue. Neither of them appears to have consulted counsel personally, but Nathan Seip, the husband of one of them, did all that was done on behalf of the contestants. Whom did be represent? For whom did Mr. Rupp appear? This is the present question. It is a search, not after some communication by client to counsel, but after a fact that could be inquired into on the trial of the issue, if such trial had been reached. It could have been settled in advance by a rule on counsel to file a warrant of attorney, 432 and this at the instance of the adverse party. It is the fact of employ. ment that creates the confidential relation. Until this relation exists there can be no privileged communication. The mere fact of employment is not privileged, but, from the nature of the relation between client and counsel, it is open to inquiry in any court in which the counsel appears as such. So, for a very obvious reason, the fact of a settlement between litigants and the terms upon which it was made are open to inquiry. An attorney who assisted in adjusting the terms of such settlement is a competent witness to show what the terms were: Schubkagel v. Dierstein, 131 Pa. St. 46. If an attorney represents two or more persons he may be called as a witness in a controversy between them, and statements made to him by one of them in the presence of the others will not be treated as confidential or privileged communications Goodwin Gas Stove etc. Co's Appeal, 117 Pa. St. 514; 2 Am St. Rep. 696. And generally, where several persons emplo; the same attorney in the same business, as, for example, ti. contest a will, cominunications made by them in relation to such business, while privileged as to their common adversary, are not privileged inter sese: Jackson v. French, 3 Wend. 337, 20 Am. Dec. 699; 19 Am. & Eng. Ency. of Law, 139, and note All have a property in confidential communications made under such circumstances. One cannot waive the privilege for his cosuitor nor enforce it against him: Beltzhoorer v. Blackstock, 3 Watts, 20; 27 Am. Dec. 330. In this case three sisters had a common interest in defeating their half brother's will. A contest was entered upon. All of them were parties to it. Their position on the record was just what Nathan Seip chose to make it. This contest was settled by him, acting for those interested, for the sum of ten thousand dollars.

The question now raised is, To whom did this money belong? Not to Nathan Seip, for he could not have taken under the intestate laws as an heir of George Probst. It must go, says the learned auditor, to those whom Seip represented, and for whom Mr. Rupp appeared. To disclose their principals both Rupp and Seip are competent, and no one of the parties can successfully interpose the objection of privilege. But Seip is now dead, and his declarations made to Mr. Rupp, showing for whom he acted in making the contest, are objected to on the ground 433 that he is not competent to testify against his wife. But the declarations relate only to his own conduct, and are explanatory of it. They involve no breach of domestic confidence; they relate to no act or contract of his wife; they fix no liability upon her estate. He acted as the agent for his wife, but not for her alone. For whom else did he undertake to act? Who were his principals in the litigation he began, carried on, and finally settled? The auditor finds that he was the agent of Mrs. Knauss as well as of his wife; and in his twelfth finding of fact he says: “That during the progress of the George Probst will contest, and at the time the settlement was consummated and the money paid to the counsel of contestants, Nathan Seip attended to the business affairs of Lydia Probst, the claimant, receiving money for her and paying bills.” In other words, he was the business agent of Lydia Probst, in general charge of her affairs. We can see no way by which the auditor reached the conclusion that he was not her agent in the management of the contest over the will also, except by rejecting the testimony of Mr. Rupp and the declarations of Seip, and then holding, as matter of law, that a compromise which affected the rights of Lydia Probst gave her no interest in the sum received.

We hold that the rejected testimony was competent so far as it was offered to show for whom Seip acted as agent, and for whom Rupp appeared as counsel. This disposes of the questions really raised on this record, but before dismissing the case it may be well to suggest another. Is it true, as the auditor seems to assume, that the money received upon the compromise of a controversy like this belongs only to those who appear as active contestants and contribute money toward the employment of counsel? The statute provides that any person interested may file a caveat, but it is well settled that thereafter the proceedings are not strictly between the parties, but are in the nature of a proceeding in rem; and a decree when made is conclusive on all the world: Ottinger v. Ottinger, 17 Serg. & R. 142. For this reason it is the duty of the court to see that all persons interested are brought in before a decree is made: Miller's Appeal, 159 Pa. St. 562. If this is not done, or if a compromise is effected without notice to any of those interested, and a verdict taken in favor of the will in pursuance of such 434 compromise, the verdict will be set aside on application of the omitted or neglected party: Hambleton v. Yocum, 108 Pa. St. 304; or the omitted party may take another appeal if the time allowed has not elapsed: Miller's Appeal, 159 Pa. St. 562.

From this it results that no contestant can compromise any thing beyond his or her own personal interest in the contest, and can be entitled to ro more than his or her distributive share in a sum received by way of general compromise. This was said in substance by the late Justice Gordon in the opinion delivered in Hambleton v. Yocum, 108 Pa. St. 304, and seems to result necessarily from the nature of the proceeding.

The interest of Lydia Probst was identical with that of Mrs. Seip and Mrs. Knauss. For what reason she was put upon the record as a codefendant with the proponent of the will that disinherited her it is probable that no one since the death of Seip can tell. But wherever her agent placed her

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