In re the Probate of the Alleged Last Will & Testament of Freeman

The relation of physician and patient is one of contract between the parties; the patient employing the physician to examine the patient’s condition, and if necessary to administer remedies.

It has been classed among the confidential relations, such as that of trustee and cestui que trust and the like.

Of course it is not necessary that there should be any administering of remedies. Medicus optima, medicamentum ■minimum.

But there must be an employment of the physician by the patient; except as hereinafter stated.

Thus in People v. Murphy ( 101 N. Y., 126 ), where the physician was selected by the public prosecutor and sent to ■attend^ upon the person, it was held that the relation of physician and patient was established because that person accepted his services and he rendered them in that character. There was, therefore, practically an employment of the physician by the person who was held to have become

So, too, in the case of an infant; though the employment, is made by the parent and the infant be even incapable of acting, the relation of physician and patient is established.

The case might also be suggested of one who was unconscious and for whom friends employed a physician. No-doubt, in such a case the relation of physician and patient would be established, although the patient was unable to-act for himself, and others had acted for him.

But nothing of that kind existed in this case. The deceased was conscious and capable of acting. She did not accept the services of these physicians, and they were not employed to attend her in a professional capacity.

The information which a physician is forbidden to disclose is that which he has acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity. Code Civ. Pro., sec. 834. Attendance on a patient means more than being in the same room, and acting in a professional capacity, means, acting in reference to that patient.

A physician by merely being in the company of a person and observing his appearance, might be satisfied that the person was ill with some disease, for instance, consumption; but this section would not forbid the disclosure of that opinion.

In Grattan v. Insurance Co ( 24 Hun, 43 , 92 N Y. 274 ); Renihan v. Dennin ( 103 N. Y , 573 ; 4 N. Y. State Rep., 261), there could be no doubt that the physician was called to attend the patient professionally, and that the relation of physician and patient existed. But in the present case the physicians were not called to prescribe for the deceased or to advise as to professional treatment; nor did they so prescribe or advise.

If the deceased at the time of their visit had been in great need of good medical advice, and they had given no-advice, they would not have been chargeable with malpractice or neglect of duty, because they were not under any obligation to advise or to prescribe.

Any advice or prescription would have been an improper act, because they were not the attending or consulting physicians, and they were under no obligation to her.

If they had conversed with her as to her health, then possibly she might have conceived the idea that they were consulting physicians.

And if, in such mistaken belief, she had stated anything as to her health, very possibly that might have come within the prohibition of this section.

But there is nothing of that kind. There is no reason to

think it must be said upon the papers before us, for the purposes of this appeal, that the subscribing witnesses to the will were persons authorized to practice physic and surgery, within the provisions of section 834, Code Civil Procedure. That fact was settled by the surrogate, so far as this appeal is concerned, by his settlement of the case, and his findings of fact, which respondents can not here question. I am of the opinion also, that these persons- in attending upon deceased, and making the examination they did as to her mental condition, were acting in a professional capacity, and that all the information they had as to her mental capacity, at the time they were used as witnesses on the trial, was acquired by them while making such examination of deceased as a patient, and which was necessary to enable them to act in such professional capacity. If this be true, then the prohibition of section 834 (above) applies, unless there had been a waiver on the part of the. deceased, which enabled the witnesses to'testify.

It matters not that no prescription was made or intended to be made. The examination was evidently to enable the doctors to advise as to deceased’s mental capacity to execute the will; nor does it matter that the doctors were called by the attorney and agent of deceased, instead of being called by herself personally. The relation of physicians and patient clearly existed. Grattan v. Ins. Co., 24 Hun, 43 ; People v. Murphy, 101 N.Y., 125 ; Renihan v. Dennin, 103 id., 573; 4 N. Y. St. Rep., 261 .

Moi does it matter whether the information acquired was through the medium of conversation or a physical, manual examination, or by observation merely of her appearance and symptoms. • However acquired, the information is covered by the provisions of section 834, above. Grattan v. Ins. Co., 92 N. Y., 287 , and cases there cited.

The evidence was, it seems to me, clearly within section 834, above, and was improperly admitted in proof of the mental capacity of the deceased to make the will, except upon the theory of a waiver of the privilege by deceased under the provisions of section 836, Code Civil Procedure. That section provides, so far as this case is concerned, that section 834 applies to every examination of a person therein described, as a witness, unless the provisions of that section are expressly waived by the patient. The waiver must be by the patient, and can not be by personal representatives after death of patient. Westover v. Ætna Life Ins. Co., 99 N. Y., 56 .

“ Whenever evidence comes within the purview of the statute, it is absolutely prohibited, and may be objected to by any one unless it be waived by the person for whose benefit and protection the statutes were enacted. After one has gone to his grave, the living are not permitted to im?>air his fame, and disgrace his memory, by dragging to the ight communications and disclosures made under the seal of the statute. An executor or administrator does not represent the deceased for the purpose of making such a waiver. He represents him simply in reference to rights of property, and not in reference to those rights which pertain to the person and character of the testator or intestate.”

After the death of the patient, therefore, a waiver can be shown only by showing the patient made the waiver before death. It is claimed such a waiver was made by the deceased here when she asked these doctors to become witnesses to her will and permitted them to be such. That by requesting and permitting them to become such witnesses, she waived all objection to their testifying, which could otherwise have been made under section 834 above. This question does not seem to have been passed upon by the courts of this state. The only reference to it in the books seems to be in a note to JEtenihan v. Dennin (above) as reported in 18 Abb. N. 0., 101, where the following language is used:

“ The mere fact of requesting medical men to attest the will as subscribing witnesses, and their doing so, appears to be as clear a waiver as could be made out without express words of waiver.”

In order to constitute a waiver under such circumstances, certain' things would need to appear and, unless they could be assumed or presumed, would need to be proven before the waiver would be established. She must have been in a condition of mind to act in the matter and to comprehend what she was doing. This ordinarily might be presumed, but there seems, in such a case as this, to be an inconsistency in presuming sanity, in order to give effect to her acts as a waiver, and then permit the doctors to swear to the very fact already presumed, to wit, her sanity. It is difficult to see why the sanity should be presumed to establish the waiver, any more than it should be presumed to establish the will. The same acts which constitute the

Then again it would need to appear that she understood the evidence necessary to be given by such witnesses when produced on proof of the will, that is that they would necessarily be required to speak of her mental condition, and their opinion in reference thereto founded and based upon the examination made of her before the execution of the will. While we might ordinarily presume a person had knowledge of ■the law, still we could hardly presume a person knew the law to be as above stated, because it is not necessary that the witnesses to a will should give any. evidence as to mental capacity of the testator at all. They may be examined upon the subject, and may, though not experts, express an opinion on the subject of mental capacity. Clapp v. Fullerton ( 34 N. Y., 190 -195), and it is the common practice, it may almost be said to be the uniform practice, to examine -them on the subject, but it is not a necessary part of their examination. Whitfield v. Whitfield, 19 W. D., 386. Indeed, if the subscribing witnesses are incompetent by reason of lunacy or otherwise to testify, or have forgotten the occurrences, or testify against the execution of the will, the will may nevertheless be established by other proof. (Code Civil Procedure, § 2620.) How therefore can it be said because the testatrix requested these doctors to be witnesses to her will that she necessarily waived the privilege, given under section 834, above, so as to enable them to speak as to her mental capacity. How much less can it be said that such request amounted tft an express waiver, such as is required

The statute related alone to the admission of the wills to probate, and under this statute it has always been held the proponent of a will must, in the first instance, give proof of competency to make the will. Kinsley v. Blanchard, 66 Barb., 317 ; Harper v. Harper, 1 T. & C., 351, 5.

And it has been held where the question of capacity to make a will is in doubt, where the evidence is equally balanced, the will should be denied probate. Rollwagen v. Rollwagen, 63 N. Y., 504 .

In this case Earl, J., says: “A party who offers an instrument for probate must show satisfactorily that it is the will of the testator, and upon this question he has the

This question of course does not arise very often because, as matter of fact, the subscribing witnesses are uniformly asked and state as to the mental capacity of the testator. I think the policy of the law is ,to require affirmative evidence of mental capacity, either by the opinions of the witnesses or by proof of circumstances before admitting a will to probate. In this case there was no competent evidence before the surrogate of the mental capacity of the testatrix to make a will, and, therefore, upon the proofs given, the will was improperly admitted to probate. It is also questionable whether the surrogate should not have required proof of the age of the testatrix, or at least that she was of sufficient age to be competent to make a will under the provisions of the statute.

So far as appears she was not twenty-one years or sixteen years of age. If she was not twenty-one years of age she could not devise real estate, and if not sixteen years of age she could not bequeath personal estate. 3 R. S. (7th ed.), 2283, 5.

Can age be presumed, or must it be proven? The same section of the Code relates to this question as to the mental capacity of the testator, because, unless of proper age, the testator is not in all respects competent to make a will. It must appear to the surrogate such competency exists before the will can be admitted to probate. And there seems to-be the same reason, therefore, for requiring the proponent to prove the age as the mental capacity of the testatrix in order to enable the will to be admitted to probate. This question was plainly raised, and the proponent persistently refused to make the proof. We have no doubt the proper proof as to the age could have been made, and we think it should have been in order to entitle the will to be admitted to probate.

The decree of the surrogate admitting the will to probate 1 think must be reversed, and a new trial ordered to be held before a jury in the circuit of the supreme court.