
    Matter of Loewenstine’s Will.
    (New York Common Pleas
    General Term,
    February, 1893.)
    On August 8, 1888, testator made his will, leaving to his wife a legacy of §500, “ as ten thousand dollars of life insurance is in her name, and she has proven herself not to he a loving wife.” He died in April, 1890, in an insane asylum, of progressive paresis, a mental disorder which has its incipiency about three years before death, and indicates its presence by three consecutive stages, the first two being accompanied by delusions. Held, that this evidence was conclusive that, at the time of the execution of the paper propounded as his will, he was unduly influenced by delusions which injuriously affected his natural regard for his wife, and a finding by a jury that testator waa not possessed of testamentary capacity should not be disturbed.
    To establish the existence of said mental disorder, contestant offered the testimony of two physicians "who had been in actual professional attendance upon deceased. This was objected to under section 834 of the Code. The court ruled that the witnesses were competent to testify to any knowledge obtained from personal acquaintance with decedent before their professional relations with him commenced and after they ceased, and excluded all testimony affecting knowledge obtained during the pendency of the relation. Reid,, that the ruling was proper.
    A physician, ponding a visit to the medical superintendent of the asylum, during which he assisted the superintendent in the discharge of his official and professional duties, had secured knowledge of testator’s condition, and was permitted to testify as to the same. Reid,, that under section 836 of the Code of Civil Procedure, as amended, Laws 1893, chapter 514, the testimony was competent.
    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 section 2547 of the Code of Civil Procedure.
    
      Daniel G. Dollins, for proponent (appellant).
    
      Otto Horwitz, Dsq., for contestant (respondent).
   Bisohoff, 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 Amityville in this state. From conclusive evidence, it appears that his death was directly attributable to a mental disorder scientifically termed dementia paratytica, 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 dementation, 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 liis' gradual transition to the state of absolute dementatioh 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 "Wolstein and Sehweig, physicians who had at times been in actual professional attendance upon the decedent. This proponent objected to as incompetent under the provisions of section 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.

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 Ms official and professional duties. This exception is, however, equally unavailing. The testimony related wholly to matters which Avere alike apparent to all persons sufficiently skilled in medical science, whether called to attend professionally or not so; and the statute Avhieh 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 Avhieh 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 section 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.

Order affirmed.  