5 N.Y.S. 58 | N.Y. Sup. Ct. | 1889
Among the objections raised to the admission of the will in question to probate was the want of testamentary capacity upon the part of the testatrix. It' appears from the evidence in this case that she had been attended by various physicians for a considerable period of time prior to her decease, and that attempts were made upon both sides to avail themselves of the evidence of these physicians. The learned surrogate, applying the rule which now seems to be well settled in reference to the disclosure of information acquired by physicians in respect to their patients while attending them in a professional capacity, excluded from consideration the evidence of a physician which was offered upon the part of the contestant. The ruling of the learned surrogate was beyond question correct in this regard. It appeared that the physician in question had attended the deceased in a professional capacity, and that, although for a considerable period he had visited her as a friend, and not in a professional capacity, the evidence showed that the impressions which he gained upon these friendly visits necessarily related back to and were influenced by the knowledge which he had acquired during the time that he was attending her professionally. It is urged upon the part
The same rule excludes the testimony offered by the physician who was examined upon the part off the respondent. It appeared from the evidence that he was employed as the physician of the deceased. It is not distinctly shown when such employment commenced, but it is apparent from the evidence that such employment commenced and such services were rendered prior to the death of the deceased. This witness, it appears, had paid two visits to the deceased, in January, 1886, which, it is claimed, were not professional. He was asked this question: “How, as the result of what you saw and heard on these two occasions in January, and subsequently in the year 1886, would you say that Mrs. Darragh was in a condition to understand the nature of a will on the disposition of property, or had the ability to make a contract intelligently?” This was objected to on the ground that the witness had been shown to be the attending physician of the deceased. The objection was overruled, the contestant excepted, and the witness answered that he could not say that she was incapacitated from making a will or disposing of her property. It should have been said, perhaps, that the testatrix died in Hovember, 1886. The question asked did not restrict itself to the interviews which took place in January, but embraced all the time subsequently up to her death, and during this subsequent time the physician was undoubtedly attending the testatrix in a professional capacity. It is claimed upon the part of the respondent that the question only related to the interviews in January; but the language of the question is, “on these two occasions in January and subsequently in the year 1886,” thus clearly relating to times subsequent to Janu
Other exceptions appear in the case to the apparent exclusion of testimony which, if it had been in reality excluded, would have been error. The witness Darragh was asked as to conversations which took place between the deceased and aMrs. Duffin. These questions, upon the face of the record, appear to have been excluded, but upon an examination of the evidence they would seem to have been fully answered, and the contestants, because of this particular exclusion, have not received any harm. It is true that under the provisions of the Code a decree admitting a will to probate should not be reversed for an error in admitting or rejecting evidence, unless it appears that the contestant was necessarily prejudiced thereby; but we think that in the admission of the evidence of Dr. Conant the contestants were necessarily prejudiced, as the evidence of a physician attending the deceased would have very great influence with the court in determining any question as to her testamentary capacity and her ability to resist the influence of those surrounding her. We think, therefore, that the decree of the surrogate must be reversed, and the case remitted back to the surrogate for a new trial. All concur.