
    (85 Hun, 575.)
    In re MURPHY’S WILL.
    (Supreme Court, General Term, Fifth Department.
    April 12, 1895.)
    Witness—Communications with Physicians—Waiver op Privilege.
    Code Civ. Proc. § S36, as amended in 1893, provides that a physician may testify as to the facts which come to his knowledge while attending a patient professionally, if the validity of the last will and testament of such deceased patient is in question, and the provisions of section 834 are waived by the executor or the surviving husband, widow, or any heir at law or any next of kin. Held, that such waiver may be made by any one of the persons named in the statute, and it is not necessary that they should unite to make the waiver effective.
    Appeal from surrogate’s court, Niagara county.
    Proceeding for the probate of the will of John Murphy, deceased. The will was admitted to probate, and 19 of the heirs and next of kin of testator appeal.
    Reversed.
    Argued before DWIGHT, P. J., and LEWIS and BRADLEY, JJ.
    P. F. King and Charles Hickey, for appellants.
    E. J. Taylor and John E. Pound, for respondents.
   BRADLEY, J.

On December 20, 1892, the decedent was a resident of the city of Lockport, N. Y. He had reached the age of 87 years. He had become feeble, and was confined to his bed. His property—mostly personal—amounted to about $25,000. He had been twice married, and was a widower; had no children living. He was survived by grandchildren, a sister, and nephews and nieces. On the morning of that day his attendants, thinking he was in a dying condition, sent for the priest, who came; and, after an interview with Murphy, he went out, and shortly after returned with a lawyer. The will was then drawn, persons were called .to subscribe it as witnesses, and the will was executed. By it he gave to St. Patrick’s Roman Catholic Church, of Lockport, $1,000; to his nephew William Murphy, $1,000; to his nephews and nieces James Horton, John Horton, Samuel Horton, Nicholas Horton, Sarah Horton, and Ellen Horton, $500 each; to his nephew James Kelly, a house and lot; to Luke Mullett, about $2,500, by abatement of that amount of his bond and mortgage held by the decedent; and to the Eight Reverend Stephen V. Ryan, of Buffalo, N. Y., all the rest, residue, and remainder of his estate. And he appointed Rev. Patrick J. Cannon, the priest before mentioned, and Michael Mullett, as executors of the will. It is urged on the part of the contestants. (1) that Murphy was incompetent to make a will; and (2) that it was the product of undue influence.

He had formerly been an active, vigorous man. But for about 12 years before his death he had been more slovenly in his personal habits, and somewhat secluded. He had a severe sickness about one year before his death, and afterwards, about three weeks before he died, he was, by illness, confined to his bed, and so continued until his death, December 28, 1892. There was much evidence given on the part of the contestants relating to his appearance, conduct, and habits during the last year of his life, and to his appearance during his last illness, tending to prove his indifference to matters to which his attention was called, and a failure to recognize his intimate friends and acquaintances, and other circumstances bearing upon his apparent mental condition, from which the inference was permitted that at the time the will was made he was not capable of comprehending the condition of his property, and his relations to those who might become the objects of his bounty, and the scope and bearing of the provisions of his will. His condition had become alarming to his attendants when the priest was sent for. This was done without his knowledge. The priest came, and, after remaining alone with Murphy for some time, departed, and soon after returned with a lawyer, by whom the will was drawn in the presence only of the priest and the decedent. Then the subscribing witnesses were called in, and the will was, in due form, executed. In view of these facts, and of the provisions of the will, it is urged, in addition to the charge of mental incompetency of Murphy, that it was the result of undue influence upon him.

The evidence of what took place relating to the will before and at the time it was drawn is in the evidence of the priest, only, and is to the effect that Murphy requested him to draw his will. He declined, saying he would get a lawyer. He did so, and when he returned with the lawyer the priest suggested to Murphy that it would be proper for him to leave something to the church, and the latter concluded to give $1,000 to it. Thereupon, inquiring to whom he wished to leave other portions of his property, he proceeded to give the names of those to whom specific legacies were given. Then, being asked what he wanted to do with the rest of his estate, he said to the priest, “Take it, and do what you like with it;” that “he did not know what he would do with it.” The priest said that would not do, he did not want it, and finally suggested that he could leave it to the bishop, to which he consented, and the residuary clause to that effect was added. The evidence of the priest is to the effect that the provisions of the will were the result of voluntary action and direction of Murphy; that he expressed a desire to give the residue of his estate to some charitable purpose, and on the suggestion of the priest, who advised him that. it was probably too late for that, in view of the short time he might live, he made the bishop, with whom he had no personal acquaintance, the residuary legatee. His securities and money, which constituted the most of his estate, were, by his direction, handed over to and taken by the priest, into his possession, shortly after the will was executed; and there is some evidence of Murphy’s subsequent declarations in recognition of the will, and tending to indicate his understanding of its provisions. The fact that none of his four grandchildren had any consideration by his will may not be so remarkable as it would seem if his relations with them had been intimate. They were the children of the issue of his first marriage, in Canada. He there separated from his wife,' and came into this state, and never after cohabited with her; nor, so far as appears, did he have any communication with her, or with the children or grandchildren. He, for some time prior to his last sickness, had been very penurious in his habits; so much so that he had denied to himself the comforts of life, although he had money, and available, productive securities. At the time he made the will, he evidently was very sick. He previously, and on that day, suffered much pain. And it may be that he had then become satisfied or apprehensive that his continued life would be brief. This may account somewhat for his willingness or desire that his assets be taken by the priest into his possession. It does not appear that he had ever before made any will, or expressed any desire about the ultimate disposition or distribution of his property. And it may be that, but for the suggestion then made to him upon the subject, no will would have been executed. It is also urged as improbable that Murphy, intelligently placed in the priest the confidence indicated by the will, and by handing the property over to him, because, as there is evidence tending to prove, Murphy had not, for some years, manifested any interest in the church, and had spoken in terms harshly and derogatory of him. The significance of his remarks referred to is dependent upon the circumstances under which they were made, and which do not very clearly appear. Upon the evidence, as a whole, the question was one of fact, whether the will, as made, voluntarily expressed the intelligent purpose of the deceased.

On the part of the contestants, Thomas B. Oosford, a practicing physician and surgeon, of some years’ experience, was called as a witness, and testified that he professionally attended Murphy from the 8th day of December, 1892, until his death. Thereupon the heirs and next of kin of the decedent waived the provisions of section 834 of the Code of Civil Procedure, so far as they were applicable to the witness, and offered to prove by him that from the time he commenced attending him, on December 8, 1892, to the time of his death, on the 28th of that month, he was continuously delirious, and of unsound mind, and incompetent to make a will. The evidence so offered was excluded upon the objection of the proponents, who were the persons named as executors in the will, and exception was taken. Prior to the amendment of 1893 of section 836 of the Code, the objection would have been well taken. Renihan v. Dennin, 103 N. Y. 573, 9 N. E. 320; In re Coleman’s Will, 111 N. Y. 220, 19 N. E. 71. The amendment took effect 15 days before the evidence was offered, and, as amended, the section contains the following provisions:

“But a physician or surgeon may upon a trial or examination disclose any information as to the mental or physical condition of the patient who is deceased, which he acquired in attending such patient professionally, except confidential communications and such facts as would tend to degrade the memory of the patient, when the provisions of section 834 have been expressly waived on such trial or examination by the personal representatives of the deceased patient, or if the validity of the last will and testament of such deceased patient is in question by the executor or executors named in said will or the surviving husband, widow or any heir at law or any of the next of kin of such deceased or any other party in interest.” Code Civ. Proc. I 83G.

The amendment of 1893 had relation only to such waiver when the validity of the last will and testament of a decedent is in question. Before then, in such case, the right of waiver was solely with the executors named in the will. It is now urged on the part of the proponents that it was the legislative intent that all persons coming within the relations there mentioned should unite to create the waiver, and therefore the word “or” should be treated as “and,” for the purposes of the interpretation of the amendment. It cannot reasonably be so construed. The purpose of the amendment evidently was to open more widely the door to the introduction of the evidence of medical attendants of a deceased patient, when the validity of his will should be in question. The right of waiver was therefore extended to others having the relations mentioned to the deceased, and to those having the legal relation of parties in interest, and who are properly in the action or proceeding in which the question arises before the court. There is no question of public policy, recognized at common law, involved. The restriction, so far as it exists, in such case, is statutory only. 1 Greenl. Ev. § 248. Rex v. Gibbons, 1 Car. & P. 97. It follows that the exclusion of the evidence of the doctor thus offered was error. And, as the contestants may have been prejudiced by its exclusion, the decree of the surrogate’s court must be reversed, and a new trial granted, with costs of this appeal payable out of the estate, to abide the event. And, as the evidence presents questions of fact, such new trial should be had at the circuit court of Niagara county of the questions: (1) Did the decedent, John Murphy, at the time of the execution of the will,.on the 20th day of December, 1892, have testamentary capacity? (2) Was the instrument purporting to be the last will and testament of the decedent voluntarily made by him? {3) Was the execution by the said decedent of the instrument purporting to be his last will and testament, of date December 20, 1892, procured by fraud, circumvention, or undue influence practiced upon him? All concur.  