In re the Revocation of the Probate of the Will of Myer

The unanimous affirmance by the court below precludes the examination in' this court of any of the questions raised by the appellants, save those arising upon exceptions taken to the rulings of the surrogate upon the admission or rejection of evidence. Some of the exceptions thus taken present errors which require a reversal of the order appealed from, because it appears that the exceptants were clearly prejudiced by such rulings. (Code Civ. Pro. § 2545.)

The petitioners introduced testimony tending to show that, at the time of the execution of the will, the testatrix was afflicted with paresis, which it was claimed deprived her of testamentary capacity. In order to supplement and support this evidence, the petitioners called two physicians, Drs. Carlton and Townsend. The former had been the medical adviser of the testatrix’s brother, and the latter of her mother. These witnesses testified that both the mother and brother of testatrix had been afflicted with what they termed “general paresis; ” that their'knowledge of this condition was obtained while attending such persons in their professional capacity, and that such knowledge was necessary in order to treat them. The testimony was objected to as incompetent and privileged under section 834 of the Code of Civil Procedure, and the

By the express terms of section 836 the provisions of section 834 are made to apply to the “ examination of any person as a witness.” The fact that the testimony of these physicians related to patients who were not parties to the proceeding or interested therein, and who were in fact dead at that time, does not annul the prohibition of the statute. In Davis v. Supreme Lodge ( 165 N. Y. 159 ) the defense sought to prove the cause of death of two aunts of the deceased by the testimony of their attending physicians. The evidence was excluded, and this court upheld the ruling. Judge O’Brien, in writing for the court, said (p. 163): “ This court has held that the statements of the attending physician, for the purpose of establishing the cause of death, either of the insured himself or of his ancestors or their descendants, although not parties to nor beneficiaries under the contract, were not admissible. They are excluded not only for the purpose of protecting parties from the disclosure of information imparted in the confidence that must necessarily exist between the physician and patient, but on grounds of public policy as well. The disclosure by a physician, whether voluntary or involuntary, of the secrets acquired by him while attending upon a patient in his professional capacity, naturally shocks our sense ot decency and propriety, and this is one reason why the law forbids it.” (Grattan v. Met. Life Ins. Co., 80 N. Y. 281 ; Westover v. Ætna Life Ins. Co., 99 id. 56 ; Nelson v. Village of Oneida, 156 id. 219.) The general rule of exclusion provided for in section 834 is not obviated in this case by the

2. There is another equally potent reason why this evidence should not have been received. The case is barren of facts which tend to show that the paresis with which the mother and brother of testatrix are said to have been afflicted was acquired by them under circumstances that would render it transmissible so as to taint the family blood. It is doubtless the general and well-established rule that where the mental soundness of an individual is in question, the sanity of the blood relations in the ancestral line may be shown as tending to establish the fact in issue (Walsh v. People, 88 N. Y. 458 ), but that rule does not permit indiscriminate and unexplained evidence of diseases afflicting such relations and affecting their mental faculties. There must be evidence tending to show at least that such diseases are hereditary or transmissible. (Reichenbach v. Ruddach, 127 Pa. St. 564 ; State v. Van Tassel, 103 Iowa, 6 .) In Walsh v. People (supra) one of the defenses interposed was, that the accused was afflicted with insanity superinduced by epilepsy. It was sought to be shown that a brother was suffering from the same malady. The ruling of the trial court excluding the evidence on the ground that it was not shown that epilepsy produces or tends to produce insanity, and that the disease is transmissible, was upheld. (Wharton & Stilles’ Med. Juris, vol. 1 [5th ed.], § 330.) It is a scientific fact of common knowledge that the transmissibility of the malady known as “ general paresis ” depends to a great extent upon the conditions underlying the disease. The medical writers differ as to its cause or causes, but it seems to he conceded that the majority of cases result from syphilis, while in others it may be superinduced by various excesses or overexertions of the individuals afflicted. (Wharton & Stilles’ Med. Juris, vol. 1 [5th ed.], §§ 883, 888.) Whether the particular form of the disease from which the testatrix and her family suffered was of such a transmissible character that she might be

Another exception urged by counsel for appellants relates to the testimony of Abbie Letts, a witness called on behalf of the petitioners. She had testified in detail as to acts and conversations of the testatrix. She was then asked by counsel for petitioners whether such acts and conversations made any impression upon her as to their being rational or irrational. She answered : “ I think they- were irrational.” This answer was stricken out on motion. Counsel for the petitioners then said : “ I asked whether they made any impression on" you,” and she answered, “ Yes, they did.” The question was then asked: “ What was the impression they made on yon as to whether they were rational or irrational,” to which she answered: “ She was irrational, I thought.” A motion to strike out this answer was promptly made, but denied under exception by counsel for the appellants. We think the motion should have been granted. While the question was proper in form, the answer was clearly in violation of the rule that lay witnesses are not permitted to give an opinion upon the question of mental capacity. They may only state their contemporary impressions as to the rationality or irrationality of the conversations or conduct testified to by them. (Holcomb v. Holcomb, 95 N. Y. 321 ; Paine v. Aldrich, 133 id. 547; People v. Strait, 148 id. 569; People v. Youngs, 151 id. 219 ; People v. Koerner, 154 id. 355.) It is obvious that the witness Letts intended to testify to nothing more than her impressions derived from the facts which she had stated, and it is quite probable that the learned surrogate so understood it. The exception is purely technical, and standing alone would not be sufficient to justify a reversal ( Wyse v. Wyse, 155 N. Y. 367 ), but since there must be a new trial on other grounds, we call attention to the error so that it may not be repeated.

The will was executed in July, 1899. These admissions were made prior to its execution, and if William H. Myer were the only legatee in interest, they would be competent and cogent evidence against him. But there were other legatees who were parties to this proceeding and interested in the result thereof. They were not jointly interested with William H. Myer, but on the contrary their interests were several. The question raised by these exceptions has been recently passed upon by this court in a case very similar to the one at bar, and there the ruling of the surrogate excluding evidence of the same character was sustained. (Matter of Kennedy, 167 N. Y. 163 , 177.) In that case we said: “ The general doctrine is doubtless correct that the admissions or declarations of a party to the record may be taken as against himself or another party having a joint interest with him, but this rule can have no application to a proceeding to prove a will where other parties are interested in the estate as tenants in common. In this case the admissions or declarations of the nephew could not bind the sister, and since upon proof of a will there can be but one decree, either of rejection or of probate, the declarations of one of the parties cannot, from the very nature of the case, be received as evidence without prej

' Other exceptions have been brought to 'our attention, but we do not regard them of sufficient importance to justify discussion.

The decree of the surrogate and the order of the Appellate Division should be reversed and a new trial ordered before a jury in- the Supreme Court, costs to abide the event.

Cullen, Oh. J., O’Brien, Haight, Vann and Willard Bartlett, JJ., concur ; Hisoook, J., not sitting.

Ordered -accordingly.