
    Mary Irene Hoyt, App’lt, v. Samuel N. Hoyt et al., as Executors, etc., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed March 5, 1889.)
    
    1. Surrogate’s court—Proceedings for revocation of probate—Cobb Civ. Pro., §§ 2618, 2647.
    The will of the testator having been admitted to probate, and letters testamentary having been issued thereon, on the petition of the plaintiff herein, the surrogate before whom the probate proceedings had been held, issued a citation to all the persons interested in said will and the probate thereof, to appear before him. and show cause why the defaulttaken against this plaintiff should not be opened, and the letters testamentary issued and the probate of said will should not be revoked, etc The petition contained allegations of fraud, practiced upon the court and the petitioner, in obtaining the probate, which if proved, would have warranted the surrogate in setting aside his prior decree for the fraud. It also contained allegations assailing the validity of the will as a testamentary disposition by the testator of his property. Upon the hearing of the case, under this order to show cause, the executors proceeded to prove the will as if'upon an original offer for probate, to which procedure no objection was offered by the contestant-. The subscribing witnesses to the will were called and examined by them, and cross-examined by the contestant. The proponents then rested; the contestant moved that the proponents be compelled to proceed with the case, on the ground that they had gone beyond the limits of formal proof in probate controversies in opening their case, and asked the court to confine the proponents to rebutting evidence, after their proofs .should have been submitted. Upon the argument, which followed the contestant’s motion, the surrogate rendered a written opinion, which defined "the questions at issue before him to be three, viz.: whether the instrument lately admitted to probate as the last will of Jesse Hoyt, was duly executed, -etc , whether at the timé of its execution the decedent was of sound mind -and memory; whether it expresses his free and untrammeled testamentary purpose. The said opinion discussed the course thus far taken by the proponents, and concluded that they had not violated any fixed rule of statute, nor so departed from the ordinary practice as to warrant the imposition of restrictions upon them, as the contestant had asked for. To this ruling no exception was taken|bythe contestant; but she at once gave notice to the executors, under Code Civ. Pro., § 2618, that before introducing proof, she would move the court to require the examination of certain per•sons named as witnesses therein. The surrogate required the proponents to produce the witnesses named in the notice, certain of whom were physicians, and to examine them, and they were cross-examined by the contestant. The contestant then brought forward her proofs in opposition; the proponents produced further evidence, as to testamentary capacity and the contestants called witnesses in rebuttal of that evidence. At the -end of the trial, which proceeded for over three years, for the first time the contestant raised the question by a request to find that the original probate was void for fraud. Held, that the surrogate committed no error in refusing to so find, and in finding that the petitioner had been treated by both parties as a petitioner for revocation of probate under Code Civ. Pro., § 2647.
    
      3. Same—Waiver of right to discuss preliminary objection—What WILL BE CONSTRUED AS.
    The contestant waived all objections which she might have to the first probate (by reason of the facts alleged in her petition with respect to her treatment by the executors at the time the citation issued upon their petition for the probate of the will) by suffering the case to proceed as one for the establishment of the due execution and of the validity of the will by the proponents, and by insisting upon their proceeding with the case as one for the contest of the validity of the will. That the case therefore fell within Code Civil Procedure, section 2647.
    3. Same—Jurisdiction of—Citation—Service of—Remedy.
    The surrogate would not be ousted of jurisdiction to admit the will to probate because of the inability of a person to appear if served with process, whether such inability be the result of physical disability or of forcible detention. In either case the service of the citation gives the right to entertain the proceedings as to the party cited; but, for failure to be heard therein, the surrogate is empowered to grant relief by a rehearing.
    4. Same—When exercise of power discretionary.
    Although jurisdiction is conferred upon the surrogate by the statute, his exercise of power, where not controlled by the statute, must be regulated by a sound discretion according to the circumstances of the case.
    35. Evidence of physicians—Code Civ. Pro., § 884—When it applies.
    The rule of evidence which excludes the communications between physician and patient must be invoked by an objection at the time the evidence of the witness is given. It is too late after the examination has been insisted upon and the evidence has been received without objection, to raise the question of competency by a motion to strike it out. The rule does not prohibit the examination of such classes of witnesses, but it prohibits the evidence of the character described from being given in the face •of an objection.
    
      6. Same—What testimony does not come within Code Civ. Pro.,, §834
    The testimony of certain physicians called upon by the proponents of the will in question to give evidence as to interviews with testator upon, the subject of his daughter’s mental condition, was not incompetent. Code Civil Procedure, section 834 does not apply to such evidence. The: information derived from the testator by the witness on that head was not of the nature described by the statute. It was not such as was necessary to enable the witness to act in a professional capacity towards the decedent.
    7. Will—Testamentary capacity.
    
      Held, that the evidence abundantly sustains the conclusion that at the: time of the execution of the will the testator was of sound mind and memory, and that such will expressed his free, untrammeled testamentary purpose.
    . Appeal from a judgment of the supreme court, general term, first department, affirming a decree of the surrogate’ & court of New York county, confirming the probate of a will.
    
      Benj. F. Butler, E. Winslow Paige and Frank J. Dupignac, for appl’t; Joseph H. Choate, Chas. P. Daly and Elihu, Boot, for respt’s.
    
      
       Affirming 9 N. Y. State Rep., 731.
    
   Gray, J.

The main question which has been presented for our consideration, by this appeal, is whether the surrogate was in error in holding that the proceeding, which followed upon the presentation of the appellant’s petition to him, was one for a revocation of probate under the provisions of article 2, of title 3 of chapter 18 ofthe Code. After the: parties had. closed their proofs, the petitioner’s counsel requested that the surrogate should decide and find that the original probate of J esse Hoyt’s will was a nullity by reason: of fraud. This he refused to do, and decided the matter as' one brought under the article referred to. The appellant’s counsel have devoted much of their labor and skill to the establishment of propositions in support of their view of the-nature of the proceeding. These counsel were not the same-who originally advised and appeared for the petitioner, when she presented her petition and instituted the proceedings below; but came into the case at a late stage of its. trial.

Before discussing the legal question, I shall briefly allude-to the facts and to the contents of the petition. Jesse Hoyt, the testator, during his life, had been an active and successful merchant in the city of New York, and when he died, at. the age of sixty-eight years, he left a will, disposing of an estate, estimated at from six to eight millions of dollars in value. His death occurred at his residence in New York city, on August 14, 1872, and was brought about by a complication of diseases, which, from the month of March, in that year, had compelled him to abandon his business pursuits. In the month of June, after consultations with his. lawyers, a will was prepared for and executed by him. The. testator left him surviving his widow, Helen Maria Hoyt, -and an only child, his daughter, Mary Irene Hoyt, this appellant. Hnder the provisions of his will, his widow was given the income and revenue proceeding from the sum of $1,250,000, which the executors were to hold as a trust fund •during her life. Of this principal sum she was permitted to dispose of the sum of $750,000 by her last will and testament. For his daughter, testator created, a trust fund of the same amount in his executor’s hands, the income and revenue from which were to be applied to her use, during her life, “in the most bounteous and liberal manner as to expenditure, and so as to promote her convenience and comfort, and gratify her reasonable desires.”

The residue of his estate, after the payment of certain legacies, was disposed of to and among his brothers and sister and the daughter of a deceased brother. After his death, and on the 29th day of August, 1882, this will was admitted to probate by the surrogate of the county of Hew York and letters testamentary issued thereupon to the executors named therein, viz., his brothers, Alfred M. and Samuel H. Hoyt, and to James W. Jackson, formerly in the employ of the testator • as a confidential clerk. Jurisdiction was acquired by the surrogate to issue such letters, by the filing of the will in his office on August 18, 1882, with the petition of the executors, praying that a citation issue to the widow and daughter to attend the probate thereof, etc. 'The citation was personally served upon them and, upon the return day, there being no opposition made, and upon the proofs, the surrogate adjudged and decreed the will to be valid, as a will of both real and personal property, and 'admitted the same to probate as such.

Subsequently, on Hovember 10, 1882, the daughter, Mary Irene Hoyt, presented her petition to the surrogate; in which she alleged the facts as to the probate of her father’s will; and further alleged, in substance, that from June 6, 1882, to the day subsequent to her father’s death, in August, •she was confined in an insane asylum in Pennsylvania; that her retiirn to Hew York was at the instance of her uncles, Alfred M. and Samuel H. Hoyt, and was, ostensibly, to attend her father’s funeral; that she was brought to the Windsor Hotel, in Hew York city, instead of her father’s bouse, and was in the custody of the superintendent of the asylum; that upon her arrival her said uncles informed her that she would not be allowed to attend the funeral; that, ' nevertheless, she did attend it; that on returning therefrom her uncles informed her she must go back to the asylum, but that she need remain there only three weeks longer; that on the day following the funeral, Samuel H. Hoyt ■came to the hotel and, in his presence, she was served with a citation to attend the probate of her father’s will, a printed copy of which was also served upon her; that said Samuel N. Hoyt, at this interview, stated that she was not insane and, apart from her, as she is informed, requested one of her relatives to induce her to return at once to the asylum and not to see any lawyer; that she read and understood the citation and will; that she was and is not insane; that she was always on terms of affection with her father and the proceedings referred to were unlawful and ruthless; that on the same day said Samuel N. Hoyt caused her to be again removed to the asylum in the custody of the superintendent; that she was incarcerated until September 6th, 1882, being eight days after the probate of the will; that she was not allowed to communicate with her friends, or any one outside of said asylum, and that her letters were destroyed or intercepted; that she was deprived of all possibility of asserting her rights, or of responding to said citation, or of being present in person or by counsel at the hearing, and her appeals to the superintendent to be allowed to go to New York for the purpose of answering said citation were refused; that Alfred M. and Samuel N. Hoyt were large legatees under the will.

Her petition further alleged that Jesse Hoyt, at the time of the making of the said will, was enfeebled by disease, was not of sound mind or memory, and was not competent to make a will; that it was not voluntarily made as his last will and testament, and that it was obtained and procured by fraud, circumvention and undue influence, practiced upon decedent by said Alfred M. and Samuel N. Hoyt, or one of them, or by other persons colluding with them.

The petition further alleged that no opportunity was offered her to require that all the witnessess to the said will, or cognizant thereof, should be produced and examined; or to request that any other witnesses should be examined; or to be present at, or in any manner to contest the proof of the alleged will; that the said Alfred M. and Samuel N. Hoyt caused her removal to and incarceration within the said asylum for the purpose of excluding her from her father, and of avoiding any objections being made to the citation, or any contest to the will. The petition prayed for “a decree opening the default taken against petitioner on August 29th, 1882, and revoking, vacating and setting aside letters testamentary * * * and that all the devisees and legatees named in said alleged will, and all •other persons who were parties to the proceeding in which •said probate was granted, be cited to show cause why default taken against petitioner * * * should not be opened without costs, and petitioner granted an opportunity to contest the will and interpose her objections to said will, and why-said probate and letters should not be revoked, vacated and set aside, and why petitioner should not have such other and further relief as may be just,” etc.

I have thought best, for the better understanding of the matter, to recite with such fullness from this petition, which lies at the foundation of this great record before us. The appellant’s counsel insist that the proceeding, instituted by its presentation to the surrogate, was governed by. the provisions of section 2481 of the Code of Civil Procedure and not, as the surrogate has found and decided to be the fact, within those of section 2647.

They, therefore, claim that for the surrogate’s error as to the nature of the proceeding, his decree is void for want of jurisdiction, and they have endeavored, by oral arguments and in elaborate briefs, to sustain this view. We are-not able to accord to their arguments the merit of soundness, however subtle and ingenious the propositions which they advance in their support.

Section 2481 of the Code is in the chapter on the jurisdiction of the court and the authority of the surrogate; and it gives him power by subdivision 6 “to open, vacate, modify, or set aside, or to enter as of a former time a decree or order of his court, or to grant a new trial, or a new hearing for fraud, newly discovered evidence, clerical error or other sufficient cause;” and the power so conferred “ must he exercised only in a like case, and in the same manner, as a court of record and of general jurisdiction exercises such powers.”

Section 2647 of the Code provides that “ a person interested in the estate of the- decedent may, within the time specified in the next section, present to the surrogate’s court, in which a will of personal property was proved, a written petition duly verified, containing allegations against the validity of the will, or the competency of the proof thereof; and praying that the probate thereof may bo revoked, and that the persons enumerated in the next section but one may be cited to show cause why it should not-be revoked. U pan the presentation of such a petition, the surrogate must issue a citation accordingly.” The next-section fixes the time within which such a petition must-be presented, and provides that the section shall not affect an. application made pursuant to the sixth subdivision of section' 2481, which I have given above. The following section, 2649, provides that the petition “must pray that the citation may be directed to the executor or administrator, with the will annexed; to all the devisees and legatees named in the will, and to all other persons who were parties to the special proceeding in which the probate was granted.” Section 2651 provides that “ upon the return of the citation the surrogate must proceed to hear the allegations and proofs of the parties,” and, by section 2652, if he decides that the will is not sufficiently proved to be the last will of the testator, or is for any reason invalid, he must make a decree revoking the probate thereof,' otherwise he must make a decree confirming the probate.”

With respect to the probate of a will, so far as it relates to personal property, the surrogate’s decree is made by the statute conclusive as an adjudication, until it is reversed on appeal or revoked by him (§ 2626); while, so far as it relates to real property, the decree establishes, presumptively only, all the matters determined by the surrogate, as against a party duly cited or any one claiming by, through or under that party. § 2627. Therefore, it follows, under the statutory provisions, that while as to real property the probate of a will is never conclusive and amounts, upon the trial of an action, or in a special proceeding, in which a ■controversy arises concerning the will, only to presumptive ■evidence, as to the personal property, if the person interested is not under disability, or the surrogate’s discretion is not invoked for a sufficient cause, under subdivision 6, of ■section 2481, the probate concludes all mankind after the lapse of one year. In such event, the disposition and distribution of the personalty by the executor is beyond question or recall, and is a finality. The proceeding for the probate is in the nature of a proceeding in rem, which is binding upon all parties who are entitled to participate and are brought in by due process of law. The sections of the Code I have referred to, as stating the effect of the probate of wills of real and personal property and as giving to a person interested, in the decedent’s estate a specified time after probate within which to commence proceedings to secure a revocation of that probate, are the re-enactment of former provisions of the Revised Statutes on the subject and are a legislative recognition of the pre-existing law. Matter of Will of Gouraud, 95 N. Y., 256.

In the Matter of Will of Kellum (50 N. Y., 298), Judge Sapallo, delivering the opinion of the court, held with respect to that section of the Revised Statutes, which gave conclusive effect to the probate of a will of personal property (2 R. S., 61, § 29), that the subsequent provisions which were adopted, by which the next of kin. were permitted within one year after probate to contest the same, by filing allegations against the validity of the will, or the ■competency of the proof thereof, were “an important safeguard against imposition or mistake, and afford the next of kin a whole year after the probate to investigate, the circumstances attending the execution of the will.”

. He further said that no such provisions are necessary as to wills of real estate, as the probate thereof may be repelled at any time by contrary proof.”

Article 2 of title 3 of chapter 18 of the Code, in which is contained section 2647, the language of which I have given above in full, was designed to continue to all interested in the estate of the decedent the same opportunity for investigation and contest, which existed under the previous provisions of the Revised Statutes.

It does not seem to my mind that it is necessary for any useful purpose, to hold that that article gives the power to revoke the probate of a will as a will of real estate. Real estate devised by a will vests in the devisee at once, who takes through the will as a conduit of title and not because of the proceedings for probate in the surrogate’s .court. Their force is directed to the investiture of title in the executor, or the administrator with the will.annexed. The title to real estate devised under the provisions of the will of a decedent, is open to attack in various modes and the probate being inconclusive and presumptive evidence only of what the surrogate has determined upon questions arising in proceedings before him for probate, the party contesting the title is not prejudiced thereby, in any respect, beyond-being compelled to meet the production of the surrogate’s decree by evidence overthrowing it by establishing the invalidity of the testamentary disposition. But, as to the personal property disposed of by the will, it is evident that without the safeguard created by the statute, in the limitation of a period of time after probate,- within which persons interested in the estate are admitted to contest the probate, great prejudice might be worked and irremediable injury suffered.

The effect of the probate of a will as to the personal property, is, as I have said, to invest the executor with the legal title thereto, and to give him the legal right to dispose of it, as directed by the testator. It is, therefore, a most-valuable right, which the Code has secured to the party, in giving him' a year to investigate the facts relating to the origin and the making of the will, and, if dissatisfied and so advised upon the facts collected, to have another hearing on his allegations and proofs. I think the effect of a proceeding instituted under section 2647 is to secure a trial of the matter de nova. The will is to be, in fact, proved anew.

It is obvious that to the child, or next of kin, or other person interested in the decedent’s estate, it may be as important, where he is dissatisfied with the will, or with the proofs upon which it was admitted to probate, to contest its probate as a will of personal property, as it is to contest it as a will of real property. But, in the one case, he must institute his proceeding for revocation of probate _n the surrogate’s court within the year ; while, in the other, he has the opportunity to contest the will in the other courts for a longer period. Where a proceeding is instituted under section 2641 to obtain a revocation of probate of a will, although the revocation affects the will only as to the disposition of the personal property, the contestant, if successful, gains an advantage to himself, if he is interested in the real estate devised, by reason of the fact that he has collected his proofs and has tested his case, and has made the way clear for the trial of any subsequent action involving the title to the real property.

The institution of proceedings under section 2641 to secure the revocation of the probate of a will, as a will of personal property, is as important in its object, as it is useful in facilitating the subsequent controversy over the will, as a disposition of the testator’s real property.

The petition in this case presents a two-fold aspect. It contains allegations, upon which a charge may be based of fraud practiced on the court and the petitioner, and it contains allegations assailing the validity of the will as a testamentary disposition by the testator of his property. Regarded, in the first aspect, as containing charges of fraudulent practices by the executors, it presented grounds which, if competently proved, may have warranted the surrogate in deciding to set aside his prior decree for the fraud. Regarded in its other aspect, this petition presented to the surrogate charges, with respect to the will and the competency of the proof thereof, which, under section 2641 of the Code and the next few following sections, obliged him to hear the allegations and proofs of the parties, and to decide whether to revoke or to confirm the previous probate.

The petitioner seems to have complied with the provisions of article 2 of title 3, chapter 18 of the Code, and to have followed closely the specific directions of sections 2641, 2649 and 2651 of that article. • She prayed for a decree opening her default, and that the devisees and legatees named in the will and all other parties to the probate proceeding be cited to show cause why her default should not be opened and why the probate and letters should not be revoked. A citation did issue thereupon and the parties thus brought into court answered and issues were presented to the surrogate for his determination.

The petitioner and the defendants were represented in court by counsel, than whom none were more eminent in the profession for ability and learning. With the professional skill and abilities at her command, when these proceedings were commenced before the surrogate, no suggestion will be listened to by us that her rights were not-competently understood, or that the course and conduct of the hearing were not intelligently taken and advised. The ingenious afterthoughts of other counsel, who were subsequently engaged by the petittioner, upon the retirement of her first counsel and of other counsel succeeding them, will not be suffered to disturb the results reached below, unless-some rule of law established by statute, or by the courts,, has been violated in reaching them. We should consider the nature of the proceeding as determined by the issues, and the conduct of the trial by the parties; and counsel for the appellant, disappointed in her attempts to disturb the probate of the will, cannot be heard to suggest that the surrogate erred with respect to the nature of the proceeding, or that the petitioner’s counsel did not understand her legal rights; because, in looking back over the record, they believe they see other ways of securing a technical revocation of the surrogate’s prior decree. Upon the coming in of the hearing, if the petitioner’s purpose was to set aside the prior probate of the will for the fraudulent practices alleged, or for any other sufficient cause, the burden was upon her to establish her right to such relief; for it is an invariable rule, applicable to all classes of cases, that whoever alleges fraud must prove it. The onus, therefore, of making out a case for the surrogate to exercise his power under section 2481 was upon the petitioner.

The petition could not prove itself, and, until the proofs were adduced in support of its allegations, the prior' decree stood intact. But what was done appears from the record to have been, upon the opening of the case, to prove the will as if upon an original offer for probate, and thereafter a contest ensued between the parties over the testator’s competency to make a will, and relating to the question of influence exercised over him with respect to its provisions. I think the record shows clearly that the proceeding was understood to be the ordinary one for the revocation of a probate, according to the statute. The proponents opened the case, and the three subscribing witnesses to the decedent’s wifi were examined by proponent’s counsel, and cross-examined by contestants’ counsel. The proponents then resting, the contestant moved that the proponents be compelled to proceed with the case, on the ground that they had gone beyond the limits of formal proof in probate controversies, in opening their case and asked the court to confine the proponents to rebutting evidence after their proofs-should have been submitted. I consider nothing could have more explicitly defined the understanding of the petitioner and of her counsel, as to what was the proceeding. They had not sought to prove the issue of the fraud in the previous proceedings. They had allowed the matter to proceed as upon an original offer of the will for probate, and their remarks forshadowed the usual will contest, upon objections made as to its validity.

Upon the argument, which followed the contestant’s motion, the surrogate rendered a written opinion which defined the questions at issue before him to be three, viz.: whether the instrument lately admitted to probate as the last will of Jesse Hoyt, was duly executed, etc.; whether at the time of its execution, the decedent was of sound mind and memory; whether it expresses his free and untrammeled testamentary purpose. The opinion discusses the course thus far taken by the proponents, and concludes that they had not violated any fixed rule of statute, nor so departed from the ordinary practice as to warrant the imposition of restrictions upon them, as the contestant had asked for. To this ruling no exception was taken by the contestant; but she at once gave notice to the executors, under section 2618 of the Code, that, before introducing proof, she would move the court to require the examination of certain persons named, as witnesses therein.

Section 2618, so relied on by contestant, provides that '“any party who contests the probate of a will may, by notice filed with the surrogate, at any time before the proofs are closed, require the examination of all the subscribing witnesses to a written will, or of any other witness whose testimony the surrogate is satisfied may be material, in which case all such witnesses * * * must be so examined.” The surrogate required the proponents to produce the witnesses named in the notice and to examine them, and they were cross-examined by the contestant. The contestant then brought forward her proofs in opposition; the proponents produced further evidence as to testamentary capacity, and the contestant called witnesses in rebuttal of that evidence. The trial proceeded for about three years and a half. At no time during the hearing was any application made by contestant that the surrogate should exercise his incidental power, under subdivision 6 of section 2481, to set aside his previous decree, for any sufficient cause appearing in the proofs, and no suggestion to that effect appears until after the hearing had been concluded, when a finding was requested by the then appearing attorney for the petitioner that the original probate was void for fraud. The request for this finding was properly refused by the surrogate, who found that the petition had been treated and proceeded under by the court, without objection by either party, substantially as a petition for revocation of probate under section 2647 of the Code.

We think the surrogate has committed no error in so-finding. The contestant had abandoned her objections to-the original probate. She waived all objections which she-might have to the first probate, by reason of the facts-alleged in her petition with respect to her treatment by the executors at the time the citation issued upon their petition for the probate of the will. She waived them by suffering the case to proceed as one for the establishment of the due-execution and of the validity of the will by the proponents, and by insisting upon their proceeding with the case as one for the contest of the validity of the will. Having abandoned and waived the issues raised by the allegations of fraudulent practices in her petition, the petitioner’s case fell within section 264-7 of the Code, and gave jurisdiction to the surrogate to reconsider and determine, upon the further proofs adduced, whether he should revoke or confirm the original probate.

I agree with the learned counsel for the respondents here, that the trial, upon allegations to revoke under the statute, necessarily assumes an original probate to be valid, if the will is valid. By the proceedings before the surrogate, the contest and issues were upon the allegations of the invalidity of the will, and a determination by him in favor of the proponents, of necessity, compels him to make a decree confirming the probate. Such is the requirement of section 2G52. It would be a flaw in the administration of justice, and one which I think is not found to exist in reason, or-from the closest inspection of these provisions of the Code, when issues, preliminary in their nature, are not only not proceeded with, but are waived by going to trial upon the merits of the controversy, if the contestant, after failing thereupon, may claim the right to resort to the other issues. The contestant, like any party to an action, could have raised, in limine, the question of jurisdiction to render the previous adjudication; but it was perfectly competent for-her to waive a question of jurisdiction, which, the due service of process being admitted, turned upon the effect of an alleged duress exercised upon her person thereafter, and to-proceed with the opportunity afforded her to contest the questions de nova, We hold that the course adopted and followed by her upon the hearing, was incompatible with the existence of a right thereafter to assert or to insist upon the want of jurisdiction in the surrogate to render the prior decree of probate.

The proceeding taken below was, within the terms and purview of section 2647, for the revocation of a will of personal property, and was so recognized by all parties. The effect of presenting the petition was to procure a re-examination of the case, and to have the proofs taken de nova. The executors, as proponents, proceeded to prove the will by- original proof, independently of the first proof; and the-practice was right and such as is contemp!ated_ by section 2651. That section was a re-enactment of a provision of the Revised .Statutes (2 R. S., 61, § 28), and necessarily implies that the only evidence, which need not to be taken anew, is in the case of witnesses dead, without the state, or insane.

In a previous part,of my opinion, I said that the allegations in the petition of fraudulent practices by the executors upon the petitioner, if competently proved, may have warranted the surrogate in setting aside his prior decree for the fraud. I advisedly said “may” because I am not convinced that in this petition sufficient appears to warrant a finding, if all the allegations had been sustained by proofs and had been believed to be true, that the surrogate was ousted of his jurisdiction to render the decree.

The service of the citation upon the executor’s petition is admitted by petitioner to have been made upon her and she alleged her mental competency and understanding of the import of the papers. I think it is not so clear that, standing on such admissions, she can say more than that she was deprived of the opportunity of being heard on the return of the process and upon her objections to the will. In fact, I think that is all she actually does set up in the petition. The allegations with respect to her treatment, if substantiated by the proofs, would be the most ample warrant to the surrogate, whose process had been so interfered with, to open up again the case for the reception of the proofs offered by the petitioner. Clearly under his incidental powers, at any time, on such a showing, he could do that much. But that is quite another matter from what the appellant’s counsel argue to be the effect of proof under the allegations respecting the fraudulent conduct of the executors. The surrogate would not be ousted of jurisdiction to admit the will to probate, because of the inability of a person to appear, if served with process, whether such inability be the result of physical disability, or of forcible detention. In either case, the service of the citation gave the right to entertain the proceeding, as to the party cited; but, for the failure to be heard therein, the surrogate is empowered to grant relief by a re-hearing. It is, of course, unnecessary to decide as to the effect of a course of proceeding, which would result in establishing the truth of the allegations as to the treatment of the petitioner; because we have agreed with the courts below, in holding that such a course was abandoned and such an issue was waived.

But I think that view suggests this consideration, namely, that the surrogate’s jurisdiction to render the decree, being unassailed by the allegations of the petition, had the parties gone to their proofs on the preliminary question of petitioner’s treatment and her inability to appear on the pro ■ -ceedings for probate, the result would have been the same, if she had succeeded; for the .surrogate must have given her the opportunity to come in and be heard. Hence what has been done in this case is the accomplishment of what to me seems the plain object of this petition, as presénted to the surrogate. Although jurisdiction is conferred upon the surrogate by the statute, his exercise of power, where not controlled by the statute, must be regulated by a sound discretion according to the circumstances of the ■case.

In this case we find no mistaken exercise of jurisdiction, ■or any abuse of discretion in the conduct of the trial.

The appellant claims that the surrogate has committed error in the reception of testimony of the physicians who attended upon the testator. They were three in number, and were produced by proponents under the notice heretofore referred to as having been given under section 2618 of the Code. That notice was given to proponents by the contestant, upon an affidavit of one of her counsel intended to satisfy the surrogate as to the materiality of the -evidence desired. The affidavit showed that the three witnesses named were, during the decedent’s last illness, his ■only attending physicians. The surrogate ruled that the proponents should produce them under this statutory notice, and, when contestant and proponents were unwilling to examine them, he directed the proponent’s counsel to examine them, accordingly as the inquiry might be “ suggested by their knowledge of the fact that the witness was an attending physician upon the decedent in the latter part of his life.” To this ruling contestant did not object, nor except. The three witnesses were examined and cross-examined at very great length, without any objection being taken ,as to their competency to give evidence, under section 834 of the Code.

Some time after these witnesses had been examined in the case, however, the counsel then appearing for contestant raised the question by a motion to strike out their evidence and, upon its denial, excepted. The denial of the motion by the surrogate' was proper and the exception brings up no error. The examination of the physicians was demanded and insisted upon by the contestant as material to the case tinder her notice, though the materiality of their evidence could only be because of their professional relations to the decedent and the knowledge they must thereby have gained. So much we are bound to assume from the statements of the affidavits upon which the notice was básed. This fact, together with the failure to object either to the ruling of the surrogate with respect to the limits of their examination, or to the examination of the witnesses themselves, constituted a waiver of the statutory provisions. The contestant could not sit by during the examination of the physicians and, after their evidence had been elicited by examination and cross-examinatian, upon finding it injurious to her case, claim as a legal right to have it stricken out. There are bounds to the enforcement of the statutory provisions, which will not be disregarded at the instance of a party, who, being entitled to their benefit, has waived or omitted to avail himself of them. It is perfectly true that public policy has dictated the enactment of the Code provisions, by which the communications of patient and client are privileged from disclosure; but the privilege must be claimed and the proposed evidence must be seasonably objected to.

The rule of evidence which excludes the communications between physician and patient must be invoked by an objection at the time the evidence of the witness is given. It is too late, after the examination has been insisted upon and the evidence has been received without objection, to' raise the question of competency by a motion to strike it out.

In Westover v. Ætna Life Ins. Co. (99 N. Y., 60), Earl, J., stated the rule as to privileged communications thus, after reviewing the authorities: “We think the statute admits of no other construction than that where the evidence comes within the prohibition of the statute, its reception, if objected to, can be justified only when the patient, penitent or client, as the case may be, waives the protection the statutes give him.”

We do not think that the rule of the statute goes further than to stamp such communications as confidential, and to protect them from disclosure when objected to, unless the privilege has been completely waived. The rule does not prohibit the examination of such classes of witnesses, but it prohibits the evidence of the character described from being given in the face of an objection. Nor was the testimony of the physicians Millard and Talcott, when they were called by the proponents to give evidence as to interviews with testator upon the subject of his daughter’s mental condition, incompetent. Section 834 does not apply to such evidence.

The information derived from the testator by the witness on that head was not of the nature described by the statute. It was not such as was necessary to enable the witnesses to act in a professional capacity towards the decedent. Dr. Millard had acted as a medical adviser to Miss Hoyt previously to his attendance upon the testator, and Dr. Talcott had examined her with a view to forming an opinion of her sanity. The examination ‘ of both, however, was for the purpose of procuring evidence of testator’s opinion concerning his daughter’s mental condition, and not to obtain the witness’ opinion of her condition as derived from a professional attendance upon her at her instance.

In Dr. Millard’s examination the surrogate carefully cautioned him that he was not to give his opinion as to Miss Hoyt’s condition, but was to confine himself to a narration of what took place between himself and testator. Dr. Talcott examined her with a view to her confinement in his asylum at Middletown, at testator’s request conveyed through Dr. Millard, the .Hovts’ family physician. The .sentiments or opinion of the testator towards his daughter were a live issue in the case, in view of his testamentary provisions in her behalf, which was raised by the petition and answers. Therefore, what those sentiments were, how inspired and how well or reasonably based, were proper subjects for inquiry from witnesses, who could testify from the testator’s own statements to them, and who, themselves, had been requested to advise him of their views as to his daughter’s condition and the proper treatment of her by him.

We think no other questions demand our attention or require other consideration than that received at the general term.

The findings of the surrogate are supported by the evidence and his contilusions that the instrument offered for and admitted to probate, on August 29, 1882, was duly executed, that it was sufficiently proved to be the last will of the testator and was valid, and that he at the time of its execution was in all respects competent to make ■a will and was not under restraint, were inevitable from the proofs; even if they had to rest exclusively upon the evidence of the subscribing witnesses to the will, the associates in business of the testator, Leonard and Joseph Ha.zeltine, and the civil engineer, Kirby, who was long in his employ.

The careful investigation of the questions raised upon the trial of the issues which was made by the surrogate, and the able review of the case at general term, leave but little for us to do beyond the consideration of the points we have discussed. The examination of this lengthy record has led me to advise agreement in the conclusion of the opinion at general term that, at the time of the execution of his will, Jesse Hoyt was of sound mind and memory, and that such will expressed his free, untrammeled testamentary purpose. The evidence abundantly sustained this conclusion.

In his long and active career Jesse Hoyt seemed to be endowed with a strong will and with extraordinary mental capacity to conceive, organize and execute great business schemes. When stricken down, a few months before his death, bv a complication of physical ailments, and tried to the utmost limits of forbearance and endurance by the violent conduct and language of his only daughter, he still acted with a tender consideration for her unfortunate condition, and with a clear and undimmed intellect he made a final testamentary disposition of his great possessions. Were it the province of courts to pronounce their opinion upon the justice and propriety of those dispositions, I should unhesitatingly say that, in this case, they are characterized by a judicious consideration of the circumstances and of his surroundings. They evidence an understanding ■of the best interests of his daughter and are marked by no illiberality or want of regard for her.

The judgment appealed from should be affirmed, with costs to the respondents, to be paid by the appellant.

All concur.  