
    Cyrus W. Loder, Resp't, v. William M. Whelpley et al., App'lts.
    
      (Court of Appeals,
    
    
      Filed November 27, 1888.)
    
    1. Evidence—What testimony of legatee inadmissible on probate of •will under Code Civ. Pro., ¡i 829.
    The testimony of a le-jatee under a will, so far as it relates (o communications with the testator, or transactions with him, is ina .missihle on proceedings taken for the admission of the will to probate under Cede Civ. Pro,, £ 839.
    3. Same—Effect of release by legatee of interest under tiie will.
    Where an executor and leg tee, under a will, releases all h s interest as legatee, by an instrument iu du form at.d valid, by so doing- he becomes subject to examination as a witness, and t esliinnny otherwise objectionab.e un ser Code Civ. Pro., g 819, becomes admissible.
    3. Same—Proponent of wilt, not disqualified as a witness under said section.
    The proponent of a will, by reason of that fact, does not become a party to the proceedings so as to disqualify him from giving evidence of personal transactions with the deceased person.
    4. Same—When privilege of physician cannot be waived—Code Crv. Pro., § 834, applies to probate proceedings.
    After the death of the patient no one can waive the privilege of the physician reserved by Code Civ. Pro., § 834. This statute applies to probate proceedings.
    5. Appeal—When must fail under Code Civ. Pro., § 2545.
    When on an appeal it appears that improper evidence has been admitted against the objections and exceptions of an appellant, the appeal must fail, under Code Civ. Pro., § 2545. unless it is apparent that without the improper evidence the respondent could not have succeeded. When that does appear, the appellant brings the cose within the statute; but if the judgment is clearly right, notwithstanding the error, there is no ground for reversal.
    6. Evidence—Attorney and client—Instructions as to manner of MAKING WILL PRIVILEGED.
    A lawyer, in receiving the directions or instructions of one intending to make a will, is confided in by reason of his profession as a counsellor, and he acts in that capacity, although asking no questions,and without advising does nothing more than to reduce these directions to writing. The relation, therefore, between the one making a will and the lawyer is that of client and attorney, and is protected by Code Civ. Pro., § 885, and such communications are not admissible in evidence.
    I. Will—Probate of—Undue influence must be proved.
    Undue influence when relied upon to defeat a testamentary disposition must be proved, and not merely assumed to eUst. It is the duty of the contestants to prove, if they can, that a will was other than the free act of the testator, and until some impediment is shown, there is no need of testimony to sustain the will as to this point, as the law presumes every man •and every woman to have the use of reason and understanding until the contrary'is proved.
    Upon the petition of Cyrus W. Loder, proceedings were instituted before the surrogate of Westchester county, for the probate of a paper purporting to be the will of one Eva J. Banks, dated May 15, 1877. Objections were made by Benjamin G-. Hitchings, claiming as legatee and executor, under a will dated in 1871, and by Whelpley and Craft as next of kin of the testatrix, in substance,
    
      First, That the testatrix had no mental capacity to make the will in question.
    
      Second. That she was induced to make it by fraud and undue influence.
    
      Third. That it was not executed in due form. The surrogate found in favor of the proponent upon all points, and admitted the will to probate. All the contestants appealed to the general term of the supreme court, second department, where the decision was affirmed, and they appeal to this court:
    
      Mr. Hitchings, app’lt, in person; Mr. Frankenheimer, for Craft and Whelpley, app’lts; Mr. Cotton, for resp’t.
   Danforth, J.

The testatrix, as the appellants concede, was a person “ of education and capacity, and up to 1871, carefully managed all her own affairs,” and one of the contestants put forward for probate, and therefore as an act of a competent testatrix, a will executed by her in 1874. The Surrogate found her to be of sufficient, capacity, and not under restraint or undue influence at the time of the execution of the will of 1874, and admitted it to probate. His findings are not without abundant evidence in their support, and if certain testimony objected to by the contestants, was properly received, or may be disregarded without affecting the result, those findings are conclusive and a sufficient answer to such requests of the contestants as were material. Objection is made that the testimony of,

First. Henrietta Babbitt, Eliza J. Babbitt and Isaac M. Babbitt, legatees under the will, and,

Second. The testimony of Henry L. Loder, legatee and executor, and,

Third. That of Cyrus W. Loder, proponent of the will, was all inadmissible under section 829 of the Code, and that the testimony of Mixseil, Sands and Griswold, was inadmissible under sections 834 and 836 of the Code, because they were physicians, and that of Henry D. Loder, because he was also the testatrix’s attorney and counsel, and so disqualified under the same sections.

First. The testimony of the legatees, so far as it related to communications with the testatrix, or transactions with her, was inadmissible, because excluded by the Code (section 829), and so the surrogate held. At the close of the evidence the contestants moved to strike out such portions of the testimony of these and other witnesses, as were claimed to be incompetent under the various provisions of the Code (sections 829, 834, 835), and the surrogate said the motion was substantially disposed of by the opinion in the case. Thus incorporating the opinion into the decision and turning to it, we find that after declaring that the questions in regard to the admissibility of the evidence, lay at the threshold of the case, and had been elaborately presented by counsel, he says he has endeavored to deduce such rule for his guidance, as the authorities cited seem to warrant, and states his conclusion to disregard so much of the testimony of the legatees as is covered by the objection to a narration by them of communications or transactions with the deceased. Moreover, the evidence of these parties was addressed to points fully established by other evidence, and it is clear, not only that it did not harm the contestants, but that when striken out its absence could not in any proper view have affected the result.

Second. The testimony of Henry D. Loder. He is executor and legatee under the will, and as such his testimony was subject to the objection warranted by the same section (829). But he released all his interest as legatee by an instrument in due form and valid, and by that release became subject to examination as a witness. In the Matter of Wilson, 103 N. Y., 374; 3 N. Y. State Rep., 613.

Third. The testimony of Cyrus W. Loder was of the kind referred to in section 829. He was the proponent of the will. The appellants’ claim is that he is therefore a party to the proceedings, and so disqualified. This relation was under consideration in Childrens' Aid Society v. Loveridge (70 N Y., 387), and it was held to constitute no obstacle to a proponent giving evidence of personal transactions with the deceased person. This decision was followed in other cases, and cited with approval in the Matter of Wilson (supra). Those decisions make discussion upon the point unnecessary.

Fourth. The testimony of Drs. Griswold, Mixsell and Sands. The first was physician to the testatrix from 1867 to the fall of 1875; the second was first called to her September 9, 1876; the third in 1880. Each physician was asked, by proponent’s counsel, questions as to her health while under his observation, and in each case the contestants objected on the ground that under the statute (section 834 of the Code), information obtained by a physician was privileged and not to be disclosed. The surrogate said he would take the testimony of both sides upon the subject and announce his decision subsequently.

Afterwards the contestants called Dr. Schmidt, who was her physician from October, 1880, until her death in January, 1882, and he testified concerning her mental and bodily condition. At the close a motion was made by the counsel for the contestants to strike out such portions of the testimony of the physicians called by the proponent as were in their opinion excluded by the statute, but the motion was denied, as we learn from the opinion already referred to, upon the ground that the prohibition of the Code did not apply to proceedings for the probate of a will, but if they did, that only the representative of the patient could object, that the executor named in the will was such representative, and that the objection was not only not made by him, but that he, by calling the witnesses, expressly waived the privilege of the statute. That this view is untenable and the exception well taken, is settled by Westover v. Ins. Co., (99 N. Y., 56), and Renihan v. Dennin (103 id., 573), 4 N. Y. State Rep., 261.

These cases, it is proper to say, were decided after the decision of the surrogate, and the views expressed by him

were sustained by no inconsiderable amount of reason and logic, and by several cases in other courts. But in the Westover Case (supra), we held that after the patient’s death no one could waive the privilege, and in the other (supra), that the statute did apply to probate proceedings. It follows that the exception is before us for review (Code of Civil Procedure, § 2545), but by the same section it is expressly declared that the decree of a surrogate shall not be reversed “for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby.”

Under the practice as it prevailed before this legislative prohibition, if the necessary facts were established by unobjectionable evidence, it was held to be immaterial that incompetent witnesses swore to the same thing (Schenck v. Dart, 22 N. Y., 420), and the erroneous admission of evidence was no ground for reversal, if the facts were also established by legal evidence (Gardiner v. Gardiner, 34 N. Y., 164; Clapp v. Fullerton, 34 id., 190). In obedience to the se'ction cited (supra), we have since held in pursuance of its provisions that an appeal must fail unless it is apparent that without the improper evidence the respondent had not succeeded. In re Will of Ross, 87 N. Y., 514; Snyder v. Sherman, 88 id., 656. When that does appear the appellant brings the case within the statute (In re Smith, 95 N. Y., 516), but if the judgment is clearly right, notwithstanding the error, it is no ground for reversal.

So far as the physicians are concerned the most that can be said is that they fail to show any derangement, actual or suspected, in the mind of the testatrix. They were called at various times to treat her for bodily ailments, and the information obtained for that purpose, or during those interims, might be wholly striken out without impairing or in any decree diminishing the weight of evidence which was before the surrogate.

Griswold visited the testatrix “ periodically” from 1807 to 1875; at no time treated her for other than gastric trouble, and if any possible importance could be attached to his evidence, it would be because of the extended cross-examination of the contestant’s counsel, who availed himself of the opportunity to enquire minutely into all the facts known 'to the physician, whether developed on the direct examination or not. But the point of inquiry upon the issue was as to the condition of the testatrix in May, 1877, the time of the execution of the will. It does not appear that at that time or for nearly two years previous, this witness had seen the testatrix, or ministered to her. If the effect of his testimony was to show that she was sane up to 1875, it was nothing more than the law presumes, for the law presumes every man and every woman to have the use of reason and understanding until the contrary is proved. Mixsell was first called to her in September, 1876, and the last time in 1877. He treated her for malaria; nothing else; his professional visits were not numerous; his non-professional and friendly interviews were very numerous; visited at the house where she was staying; was there at meal times at the table with her; very often; about one hundred times, narrates visits which were not of a professional kind; characterizes her memory and her mental condition as displayed on those occasions. Sands began his visits in 1880, and saw her but two or three times; also for malaria; “saw right through her case; treated her .for it, and' the next day she was well.” He did not look for any other disease and nothing called his attention to the condition of her mind.

If his testimony was inadmissible, it was unimportant and clearly not prejudicial to the exceptants Neither was that of the other physicians, and it would be in disparagement rather than in aid of justice to give any weight to the exception.

Fifih. The evidence of Henry D. Loder as to communications made to him by the testatrix in tbe course of his professional employment. The Code (sec. 835) provides that ‘£ an attorney or counsellor at law shall not be allowed to disclose a communication made by his client to him, or his advice given thereon in the course of his professional employment.” The surrogate received the evidence upon the grounds stated above in regard to the testimony of tbe physicians, it follow's that if the evidence received is of the character described in the statute there was error in his ruling. The witness, upon the employment of the testatrix, drew and superintended• the execution of the will. He drew the will from a memorandum prepared by her and addressed to him. While he was under examination it was offered in evidence, but objected to and received by the surrogate. A lawyer in receiving the directions or instructions of one intending to make a will, is confided in by reason of his professional character as a counsellor, and he acts in that capacity, although asking no questions and without advising, he does nothing more than to reduce those directions to writing. The relation, therefore, between the testatrix and the witness was that of client and attorney. Under what circumstances then and to what end did he testify?

The proof of the execution of the will was complete and perfect. Followed by a cross-examination at great length by two counsel representing different contestants serving-only to confirm and strengthen by a variety of repetitions the facts related by the subscribing witnesses. The testatrix was shown to be of perfect mind and memory, to have executed the instrument in the presence of her friends and neighbors, they signing as witnesses at her request, she at the same time declaring the paper to he her last will and testament, and after they had signed, she said,” as they testify, she was sorry to trouble us, but it was something we all had to do for each other, and thanked us for doing it for her.” The will was then received in evidence, and it is not objected by either contestant that in this there was any error.

The contestants then went into evidence, and this evidence we have examined, not for the purpose of passing upon the question of fact disposed of by the surrogate, but to see whether it presented a case which made the exceptions under review material in any aspect. It fails to do so. Upon the question of mental competency on the part of the testatrix, it would, even if wholly uncontradicted or unopposed by other evidence, raise no doubt, nor excite suspicion even, that at the time of the execution of the will she was not sane in mind, capable of discrimination, and exercising it, and altogether self-possessed. She was advanced in years, and subsequently indicated a wavering and uncertain mind and peculiarity of conduct, but at the time made material by the issue she was free from any derangement, or in any way beside herself.

Other evidence from the proponent on this point was absolutely necessary. But the lawyer who drew the will was a beneficiary under it to the amount of $1,000, and when the proponent took the case he produced the memorandum to which I have referred. In regard to it he testified as to, and in that connection stated, interviews with the testatrix, which we hold to be inadmissible. The evidence was intended to repel the suggestion that the will was the result of undue influence, or in any way improperly obtained by the attorney. It was, no doubt, useful for that pur-pose, and it came in rather by way of self-vindication, from over caution, but it was unnecessary. A person of sound mind, acting with full knowledge of her affairs, competent to understand her relations to those whom she wished to benefit, may bestow her bounty as she likes and no presumption of unfair dealing can arise, although one of the beneficiarcies happens to be her attorney. Undue influence, when relied upon to defeat a testamentary disposition, must be proved, and not mex-ely assumed to exist. In re Smith, 95 N. Y., 516. It was the duty of the contestants to prove, if they could, that the will was other than the free act of the testatrix, and until some impediment was shown, there was no need of testimony upon the point. It may be fairly said that none was given by the contestants. The evidence discloses a complete knowledge on the part of the testatrix of the contents of the will, a full legal capacity and the absence of restraint. The surrogate found her competent, and upon the point .now under consideration, being asked by the contestants to find, ‘ ‘ that aside from the evidence of Loder as to conversations and communications between himself and the testatrix prior to the execution of the will, and that of Cyrus Loder as to communications subsequent thereto, there was no evidence that she had read and understood the provisions of the will, or to-repel the presumption arising from the will having been drawn and its execution superintended by Loder, who is a beneficiary under it,” refused so to .find, and did find that the objections of the contestants to the testatrix’s capacity to make a will, were unproven and unsustained. Tlie general term agreé in this conclusion. The learned judge, reviewing the evidence, finds mental capacity and no proof of undue influence. This result is justified by testimony which leaves no doubt of its correctness, and leaving out-all the evidence objected to by the contestants, the-same result, and that only, could be reached. The contest, indeed, seems to have been without foundation, and it was-disposed of by the surrogate through no error to the prejudice of the contestants, but in the only manner of which the evidence properly réceived would admit. The appeal, therefore, fails, and the judgment and order appealed from should be affirmed, .but, under the circumstances of the case, we think it should be • without costs-to either party in this court.

All concur.  