
    In the Matter of the Application for the Probate of the Last Will and Testament of Henry M. Loewenstine, Dec’d.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 6, 1893.)
    
    1. Will — Testamentary capacity — Delusions.
    Testator bequeathed to Ms wife only a small sum, as “ she has proven herself not to be a loving wife.” He died, while a patient in an insane asylum, from dementia 'paralytica, which indicates its presence by three stages, exaltation, depression and absolute dementation. It was shown that at the time of the execution of the will he was in a state of intermittent exaltation and depression, and that prior to such time the mutual devotion of husband nd wife was marked, while thereafter he became querulous and accused her on imaginary grounds. Held, that the jury’s finding that the testator was not possessed of testamentary capacity should not be disturbed.
    3. Evidence — Physicians. .
    The statute which disqualifies an attending physician was designed to exclude only such information as the physician could only acquire in actual professional attendance upon the patient.
    
      Appeal from an order denying proponent’s motion for a new trial.
    Trial of issues in proceedings for the probate of an alleged last will and testament pursuant to the provisions of § 2547 of the Code of Civil Procedure.
    
      Daniel 6?. Rollins, for app’lt; Otto Horwitz, for resp’t.
   Bischoff, J.

The paper propounded as the last will and testament of Henry M. Loewenstine was executed August 8,. 1888, and contained the following provision : “ Second, I hereby give, devise and bequeath unto my wife Rosa the sum of five hundred dollars, as ten thousand dollars of life insurance is in her name, and she has proven herself not to be a loving wife.” No other provision was made for the wife and the remainder of the estate was left in trust for the use and benefit of an infant daughter, Gladdys, the decedent’s only child. He died in April, 1890, while confined as a patient in an asylum for the insane known as the Long Island Home, at Amity ville in this state. From conclusive evidence it appears that his death was directly attributable to a mental disorder scientifically termed dementia paralytica, but popularly known as progressive paresis, which has its incipiency about three years before death and indicates its presence by three consecutive stages, the periods of exaltation, depression and absolute dementati'on, the first two stages being accompanied by delusions. It was conceded by the subscribing witnesses that at the very time of the execution of the alleged will the sanity of the decedent was a matter of serious concern, and it was abundantly shown that at or about this time he was in a state of intermittent exaltation and depression, which denoted his gradual transition to the state of absolute demention immediately preceding his death. A number of witnesses acquainted with the decedent and his family testified to the effect that previous to the incipiency of the disorder which culminated in his death the domestic relations of the decedent were more than ordinarily felicitous, the mutual devotion of husband and wife marked and pronounced, while thereafter he became petulant and querulous, accusing his wife upon trivial and sometimes wholly imaginary grounds, at intervals of constantly growing frequency, of neglect of himself and their infant daughter, though her devotion both as wife and mother had been unceasing. Upon this evidence the conclusion is irresistible that the decedent at the time of the execution of the paper propounded was unduly influenced by delusions which injuriously affected the natural regard for his wife, and, assuming that there are no errors in the admission or exclusion of evidence, the jury’s finding that the decedent was not possessed of testamentary capacity should not be disturbed.

To establish the existence of the mental disorder which led to his death, contestant offered the testimony of Doctors Walstein and Schweig, physicians who had at times been in actual professional attendance upon the decedent. This proponent objected to as incompetent, under the provisions of § 834 of the Code of Civil Procedure, “ that a person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.” The court thereupon ruled that the witnesses should be permitted to testify to any knowledge obtained from personal acquaintance with decedent before their respective professional relations with him commenced, and after they ceased, and excluded all testimony affecting knowledge obtained during the pendency of the relations; and hereto proponent excepted. The ruling is, however, sanctioned by the court of appeals in Fisher v. Fisher, 129 N. Y., 654; 42 St. Rep., 100.

One further exception was taken to the admission of Dr. Williams’ testimony, who, though not actually in professional attendance upon the decedent, had secured knowledge of his condition pending a visit at the Amityville Asylum as the guest of Dr. Carpenter, the medical superintendent, during which time he had assisted Dr. Carpenter in the discharge of his official and professional duties. This exception is, however, equally unavailing. The testimony related wholly to matters which were'alike apparent to all persons sufficiently skilled in medical science, whether called to attend professionally or not so; and the statute which disqualifies an attending physician was designed to exclude only such information as only the physician in actual professional attendance upon the patient could acquire. For instance, as here, dementia paralytica, or progressive paresis, has certain well defined indications which are exteriorally perceptible to almost every person. From these indications one learned in the science of medicine concludes the presence of the disease, makes his diagnosis, as the physician terms it, but his professional attendance upon the afflicted is not necessary to enable him to do so. But it is useless to pursue the discussion, since by recent amendment of § 836 of the Code of Civil Procedure, see chap. 514, Laws 1892, the testimony is made competent beyond peradventure.

The order appealed from should be affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.  