
    In the Matter of the Probate of the Alleged Last Will and Testament of Susan M. Freeman, Deceased.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November, 1887.)
    
    1. Physician—Will—When competent witness under Code Crv. Pro.. §834.
    The subscribing witnesses of the proposed will of decedent were physicians, in active practice in their profession. They had been employed by the attorney, who drew the will, to examine decedent as to her sanity, and immediately after such examination became subscribing witnesses to her will at her request. Held, that said physicians were competent witnesses to testify to the mental capacity of the decedent at the time of making her alleged will, when the will was offered for probate. That Code Civil Procedure, § 834, does not apply, as they were not employed by decedent. Per Learned, P. J.; Williams, J., dissenting.
    8. Same—Waiver of privilege.
    The decedent having expressly requested them to become witnesses to her wnl, she, in legal effect, requested them to testify to the whole truth within taeir knowledge touching the matters material to be inquired of in order to establish the probate of the will. She expressly waived her privilege. Per Landon, J.; Williams, J., dissenting.
    8. Same.
    However, the information was acquired, whether through the medium of conversation or a physical manual examination, or by observation merely of the appearance and symptoms, it is covered by the provisions of said section, unless the provisions thereof are expressly waived by the patient. Per Williams, J.
    4. Practice—Admission of will to probate—Capacity to make will MUST BE PROVED.
    The proponents of a will must, in the first instance, give proof of competency to make the will. This includes proof of mental capacity and age . of decedent at the time of executing the will. Per Williams, J.
    Appeal from decree of surrogate of Saratoga county, admitting will to probate.
    The two witnesses to the will were physicians and surgeons. These were the only witnesses sworn on the hearing, and the main question involved on this appeal is whether their evidence was properly received as to mental capacity, under section 834 of the Code of Civil Procedure.
    The case as settled by the surrogate contains the statement that the subscribing witnesses to the will were, at the time, duly qualified and practicing physicians and surgeons. Some evidence appears in the case on the subject, and the surrogate, upon request of contestants, found as a fact, in deciding the matter, that at the time of the execution of the will the subscribing witnesses were, and for a long time prior thereto had been, duly authorized to practice physic and surgery, and had been so practicing the same.
    - Dr. Boyce testified, among other things, that he had heard before the day of the execution of the will that the deceased was sick, and that at the time the will was executed he went to her place for the purpose of examining into her mental condition, and that he made such examination before the will was executed; that Dr. Hodgman was with him and in consultation as to her mental condition; that Mr. Pettit (named as an executor in the will) came for him and was at deceased’s place when the doctors were there but not in the room of deceased with them; that Mr. McCall, the attorney who drew the will, was in the deceased’s room with the doctors;' that one of the doctors requested the will should be read, and it was so read there; that he did not examine deceased’s physical condition very closely; that she had an emaciated look to her face— looked in a feeble, physical condition, weak; that witness had heard she had a cancer, but never saw it; that he was not her physician or surgeon at the time, and didn’t prescribe for her; was not called, as he understood it, to prescribe for her; that he was not her family physician; that he made a charge for making the examination upon his books to the attorney McCall, which had been since paid; that he made the examination the same as he always did when called upon to examine a person with regard to sanity, and after the examination the will was at once executed.
    Dr. Hodgman testified, among other things, that ne went to deceased’s place for the purpose of making an examination of her mental condition, and did make the examination just before the will was executed; that he made such examination by the means usually employed by physicians in determining as to the sanity of persons, and that sanity is determined to some extent by observation, as to the looks and speech and conduct and general appearance of the person; that he asked that the will be read, and McCall the attorney .handed the-will to him and he read it; that he had not then been her family physician, had never treated her then, but did afterwards.
    And the surrogate found as facts, upon the request of the contestants, in deciding the matter, that the subscribing witnesses were each of them called to see the deceased, and did call and examine her professionally as to her mental condition, on the occasion the will was executed, and before such execution, and that neither of them had seen her before during her last sickness. The case also contains the statement that deceased, at the time the will was executed, was sick, and the surrogate found as a fact that she had for some time been sick, and at the time the will was executed was in bed.
    There seems to have been no proof in the case as to the age of deceased, and contestants at the close of the evidence moved to dismiss the proceedings and for a decree denying probate to the will on the ground that proponents had not shown deceased was of a class of persons named in the statute as persons capable of executing wills of real and personal estate. Upon request of contestants the surrogate found the fact that there was no proof of deceased’s age, but refused to find she was not competent, by reason of lack of age, to make a will of real and personal property. The surrogate refused, on request by contestants, to find no waiver, express or implied, by deceased as to the doctors being witnesses to her will.
    
      J. W. Houghton, W. J. Miner and A. S. Burdick, for app’lts; W. H. McCall, C. H. Tefft, Jr., and W. B. French, for resp’ts.
   Learned, P. J.

The relation of physician and patient is one of contract between the parties; the patient employing the physician to examine the patient’s condition, and if necessary to administer remedies.

It has been classed among the confidential relations, such as that of trustee and cestui que trust and the like.

Of course it is not necessary that there should be any administering of remedies. Medicus optima, medicamentum ■minimum.

But there must be an employment of the physician by the patient; except as hereinafter stated.

Thus in People v. Murphy (101 N. Y., 126), where the physician was selected by the public prosecutor and sent to ■attend^ upon the person, it was held that the relation of physician and patient was established because that person accepted his services and he rendered them in that character. There was, therefore, practically an employment of the physician by the person who was held to have become his patient, although his compensation did not come from her.

So, too, in the case of an infant; though the employment, is made by the parent and the infant be even incapable of acting, the relation of physician and patient is established.

The case might also be suggested of one who was unconscious and for whom friends employed a physician. No-doubt, in such a case the relation of physician and patient would be established, although the patient was unable to-act for himself, and others had acted for him.

But nothing of that kind existed in this case. The deceased was conscious and capable of acting. She did not accept the services of these physicians, and they were not employed to attend her in a professional capacity.

The information which a physician is forbidden to disclose is that which he has acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity. Code Civ. Pro., sec. 834. Attendance on a patient means more than being in the same room, and acting in a professional capacity, means, acting in reference to that patient.

A physician by merely being in the company of a person and observing his appearance, might be satisfied that the person was ill with some disease, for instance, consumption; but this section would not forbid the disclosure of that opinion.

In Grattan v. Insurance Co (24 Hun, 43, 92 N Y. 274); Renihan v. Dennin (103 N. Y , 573; 4 N. Y. State Rep., 261), there could be no doubt that the physician was called to attend the patient professionally, and that the relation of physician and patient existed. But in the present case the physicians were not called to prescribe for the deceased or to advise as to professional treatment; nor did they so prescribe or advise.

If the deceased at the time of their visit had been in great need of good medical advice, and they had given no-advice, they would not have been chargeable with malpractice or neglect of duty, because they were not under any obligation to advise or to prescribe.

Any advice or prescription would have been an improper act, because they were not the attending or consulting physicians, and they were under no obligation to her.

If they had conversed with her as to her health, then possibly she might have conceived the idea that they were consulting physicians.

And if, in such mistaken belief, she had stated anything as to her health, very possibly that might have come within the prohibition of this section.

But there is nothing of that kind. There is no reason to believe that she thought them, to be consulting physicians, or recognized them to be anything more than proper witnesses to her will.

The section implies that the physician is to do some act in his professional capacity. Of course, this act may be merely negative. That is, the physician may decide that no medicine is needed. But in this case these physicians were not to do, or to omit to do, anything for the deceased. The signing of the will as witnesses was not a professional act.

I think there was no error in allowing these physicians to testify.

Another objection is that proof was not given of the age of the deceased.

The surrogate finds that she was of full age. There appears to be no proof on that point. Probably it was assumed as a matter not disputed. No objection was taken by the contestants on this point. One ground of objection was that the proponent had not shown that the testatrix was of the class of persons capable of executing a will. But this did not point out the specific defect in the proof. It was intended to bean objection on the ground thát the age of the testatrix had not been proved, then it was expressed in such a manner as to conceal its meaning. One object in requiring parties to take objections is to give the other side notice of the alleged defect. No such notice was here given. The petition for probate is not before us. That may have stated the age of the testatrix. The contesting allegations of the husband and heirs and next of kin set up no such matter.

[The testatrix by the will makes a bequest to her son-in-law. She, therefore, was old enough to have a married daughter. J. S. L.]

If there be any defect in this respect, then this is a case where we should take the proof or refer the matter under section 2586.

Landon, J.

I advise affirmance, upon the ground that the testatrix expressly requested these physicians to be subscribing witnesses. She thereby, in legal effect, expressly requested them to do two things: First, to sign their names to her will as witnesses to its execution and publication; second, to testify, at the proper time before the proper court, to the whole truth within their knowledge touching the matters material to be inquired of in order to establish the probate of the will.

Having expressly requested them to give this testimony she expressly waived her privilege, if she had any, to prevent their giving it.

Williams, J.

think it must be said upon the papers before us, for the purposes of this appeal, that the subscribing witnesses to the will were persons authorized to practice physic and surgery, within the provisions of section 834, Code Civil Procedure. That fact was settled by the surrogate, so far as this appeal is concerned, by his settlement of the case, and his findings of fact, which respondents can not here question. I am of the opinion also, that these persons- in attending upon deceased, and making the examination they did as to her mental condition, were acting in a professional capacity, and that all the information they had as to her mental capacity, at the time they were used as witnesses on the trial, was acquired by them while making such examination of deceased as a patient, and which was necessary to enable them to act in such professional capacity. If this be true, then the prohibition of section 834 (above) applies, unless there had been a waiver on the part of the. deceased, which enabled the witnesses to'testify.

It matters not that no prescription was made or intended to be made. The examination was evidently to enable the doctors to advise as to deceased’s mental capacity to execute the will; nor does it matter that the doctors were called by the attorney and agent of deceased, instead of being called by herself personally. The relation of physicians and patient clearly existed. Grattan v. Ins. Co., 24 Hun, 43; People v. Murphy, 101 N.Y., 125; Renihan v. Dennin, 103 id., 573; 4 N. Y. St. Rep., 261.

Moi does it matter whether the information acquired was through the medium of conversation or a physical, manual examination, or by observation merely of her appearance and symptoms. • However acquired, the information is covered by the provisions of section 834, above. Grattan v. Ins. Co., 92 N. Y., 287, and cases there cited.

The evidence was, it seems to me, clearly within section 834, above, and was improperly admitted in proof of the mental capacity of the deceased to make the will, except upon the theory of a waiver of the privilege by deceased under the provisions of section 836, Code Civil Procedure. That section provides, so far as this case is concerned, that section 834 applies to every examination of a person therein described, as a witness, unless the provisions of that section are expressly waived by the patient. The waiver must be by the patient, and can not be by personal representatives after death of patient. Westover v. Ætna Life Ins. Co., 99 N. Y., 56.

In view of this decision, it would seem difficult to establish an express waiver by a patient after the patient is deceased. The waiver could be made by no one except the patient, if not by the personal representatives of the patient, for the purpose of aiding in the recovery of insurance upon the life of the patient. Earl, J., in this case says :

“ Whenever evidence comes within the purview of the statute, it is absolutely prohibited, and may be objected to by any one unless it be waived by the person for whose benefit and protection the statutes were enacted. After one has gone to his grave, the living are not permitted to im?>air his fame, and disgrace his memory, by dragging to the ight communications and disclosures made under the seal of the statute. An executor or administrator does not represent the deceased for the purpose of making such a waiver. He represents him simply in reference to rights of property, and not in reference to those rights which pertain to the person and character of the testator or intestate.”

After the death of the patient, therefore, a waiver can be shown only by showing the patient made the waiver before death. It is claimed such a waiver was made by the deceased here when she asked these doctors to become witnesses to her will and permitted them to be such. That by requesting and permitting them to become such witnesses, she waived all objection to their testifying, which could otherwise have been made under section 834 above. This question does not seem to have been passed upon by the courts of this state. The only reference to it in the books seems to be in a note to JEtenihan v. Dennin (above) as reported in 18 Abb. N. 0., 101, where the following language is used:

“ The mere fact of requesting medical men to attest the will as subscribing witnesses, and their doing so, appears to be as clear a waiver as could be made out without express words of waiver.”

In order to constitute a waiver under such circumstances, certain' things would need to appear and, unless they could be assumed or presumed, would need to be proven before the waiver would be established. She must have been in a condition of mind to act in the matter and to comprehend what she was doing. This ordinarily might be presumed, but there seems, in such a case as this, to be an inconsistency in presuming sanity, in order to give effect to her acts as a waiver, and then permit the doctors to swear to the very fact already presumed, to wit, her sanity. It is difficult to see why the sanity should be presumed to establish the waiver, any more than it should be presumed to establish the will. The same acts which constitute the making of the will are sought to be made use of to establish a waiver so as to allow the proof of the will. Then, it should appear she was aware these men were doctors, and that they had made a professional examination of her, for the purpose of ascertaining her condition of mind, and whether she was sane or not. Can these things be presumed ? There seems to have been no proof of these things. Even if, from the evidence, it may be spelled out that she knew they were doctors, there is nothing to show she was aware any examination as to her sanity was being made or had been made, when she reguested them and permitted them to be witnesses to her will. Can it be said the privilege did not exist unless she knew the examination was being made ? We cannot assent to such a proposition, and certainly she could not be regarded as waiving a privilege which she did not know existed. To illustrate, suppose a patient is examined as to physical infirmities when temporarily unconscious from the effect of disease or narcotics and does not know of the examination at all. Could she be said •to have no privilege, or, by any subsequent acts, to have waived the privilege, under section 834, which she did not know existed ? Clearly, she could not.

Then again it would need to appear that she understood the evidence necessary to be given by such witnesses when produced on proof of the will, that is that they would necessarily be required to speak of her mental condition, and their opinion in reference thereto founded and based upon the examination made of her before the execution of the will. While we might ordinarily presume a person had knowledge of ■the law, still we could hardly presume a person knew the law to be as above stated, because it is not necessary that the witnesses to a will should give any. evidence as to mental capacity of the testator at all. They may be examined upon the subject, and may, though not experts, express an opinion on the subject of mental capacity. Clapp v. Fullerton (34 N. Y., 190-195), and it is the common practice, it may almost be said to be the uniform practice, to examine -them on the subject, but it is not a necessary part of their examination. Whitfield v. Whitfield, 19 W. D., 386. Indeed, if the subscribing witnesses are incompetent by reason of lunacy or otherwise to testify, or have forgotten the occurrences, or testify against the execution of the will, the will may nevertheless be established by other proof. (Code Civil Procedure, § 2620.) How therefore can it be said because the testatrix requested these doctors to be witnesses to her will that she necessarily waived the privilege, given under section 834, above, so as to enable them to speak as to her mental capacity. How much less can it be said that such request amounted tft an express waiver, such as is required

"by section 836, above, in order to make such witnesses competent to speak of mental capacity. At most, it would amount to no more than an implied waiver. Webster defines express as “directly stated; not implied or left to inference; distinctly and pointedly given; made unambiguous by special intention; clear; plain.” I am of opinion that upon the evidence in this matter no express waiver was established so as to make the subscribing witnesses •competent to testify as to the mental capacity of the testatrix to make the will. They were competent to testify as to the formal execution of the will, and it is claimed by the respondents the formal execution of the will having been •established, it was unnecessary for the proponents to give any evidence of mental capacity of the testatrix to make a will; that the contestants had the burden of proof of showing incapacity, and as they gave no evidence at all, the surrogate might and should presume the existence of mental capacity, and admit the will to probate. I think this will not answer. The Code of Civil Procedure provides, section 2623, “ If it appears to the surrogate that the will was duly executed and that the testator, at the time of the execution was in all respects competent to make a will, and not under restraint, it must be admitted to probate, etc.” It seems the competency of the testator must be made to appear to the surrogate. Such a provision would hardly be complied with, if nothing was shown at all, and the surrogate was left to presume it from absence of any evidence upon the subject. The cases Cited by respondents were, none of them, matters of proving wills for the purpose of admitting them tc probate. Weed v. Ins. Co. (35 Supr. Ct. R., 386), and Coffey v. Ins. Co. (44 How. Pr., 481), were actions to recover life insurance, where the questions of suicide and insanity were involved. Jackson v. Van Dusen (5 Johns., 144), was an action of ejectment. In these cases it was correctly held sanity was to be presumed as the natural condition of the mind. The statute, however, above referred to, did not cover these cases, nor assume to control the trial of actions.

The statute related alone to the admission of the wills to probate, and under this statute it has always been held the proponent of a will must, in the first instance, give proof of competency to make the will. Kinsley v. Blanchard, 66 Barb., 317; Harper v. Harper, 1 T. & C., 351, 5.

And it has been held where the question of capacity to make a will is in doubt, where the evidence is equally balanced, the will should be denied probate. Rollwagen v. Rollwagen, 63 N. Y., 504.

In this case Earl, J., says: “A party who offers an instrument for probate must show satisfactorily that it is the will of the testator, and upon this question he has the burden of proof. If he fails to satisfy the court that the instrument speaks the language and contains the will of the testator, probate must be denied. The laws in reference to the distribution of the estates of persons dying intestate are founded upon principles of public policy and justice, and must regulate the transmission of property un • less a person before death has, in the mode prescribed by law, provided how his property after his death shall be disposed of.”

This question of course does not arise very often because, as matter of fact, the subscribing witnesses are uniformly asked and state as to the mental capacity of the testator. I think the policy of the law is ,to require affirmative evidence of mental capacity, either by the opinions of the witnesses or by proof of circumstances before admitting a will to probate. In this case there was no competent evidence before the surrogate of the mental capacity of the testatrix to make a will, and, therefore, upon the proofs given, the will was improperly admitted to probate. It is also questionable whether the surrogate should not have required proof of the age of the testatrix, or at least that she was of sufficient age to be competent to make a will under the provisions of the statute.

So far as appears she was not twenty-one years or sixteen years of age. If she was not twenty-one years of age she could not devise real estate, and if not sixteen years of age she could not bequeath personal estate. 3 R. S. (7th ed.), 2283, 5.

Can age be presumed, or must it be proven? The same section of the Code relates to this question as to the mental capacity of the testator, because, unless of proper age, the testator is not in all respects competent to make a will. It must appear to the surrogate such competency exists before the will can be admitted to probate. And there seems to-be the same reason, therefore, for requiring the proponent to prove the age as the mental capacity of the testatrix in order to enable the will to be admitted to probate. This question was plainly raised, and the proponent persistently refused to make the proof. We have no doubt the proper proof as to the age could have been made, and we think it should have been in order to entitle the will to be admitted to probate.

The decree of the surrogate admitting the will to probate 1 think must be reversed, and a new trial ordered to be held before a jury in the circuit of the supreme court. 
      
       N. B.—The portion in brackets above, appeared as pencil memorandum on margin of original opinion.—[Ed.
     