122 Wis. 460 | Wis. | 1904
1. The respondents object to the maintenance of this appeal, as they did to that in the circuit court, for the reason that appellant has not shown herself to be aggrieved by either the order or judgment appealed from, because she has shown no interest; apparently contending, first, that her interest as a legatee under a former will could only be established by the probate of that will in county court in the manner prescribed by sec. 3788, Stats. 1898; secondly, that, even if the authenticity and validity of the will might have been proved as a fact upon the trial in the .circuit court, no evidence was given. As to the second objection, it must be noted that the will itself was received in evidence, whereby the circuit court had opportunity to compare the decedent’s signatures upon that and upon the later will. We are therefore
The question, therefore, presented is whether a person named as legatee under another will, which might be valid if that under consideration were rejected, can be recognized as a party aggrieved to appeal -from the probate without first having procured the allowance of the will under which she claims by the county court in due probate proceedings. The question as to a will is, of course, differentiated from a question of interest arising under any other paper by the fact that the circuit court cannot originally adjudicate upon the validity of such prior will, that authority being exclusively vested in the county court; hence, if full and complete proof •of the due execution of the prior will were offered, and the ■circuit court thereon should conclude that it was a valid will, •still that conclusion would not establish it as such, for it must thereafter be presented to the county court, and there may fail of probate and be a mere nullity. Sec. 2294, Stats. 1898. Upon the present showing, obviously the appellant in this ■case might defeat the will of 1900, and yet it transpire when ■she attempted to prove the will of 1885 that she was wholly without adverse interest, and the courts would have been put ■to labor and the distribution of the estate in accord with the wishes of every person interested therein might have been defeated. This consideration is weighty; but upon the other ■side it must be borne in mind that if the will of 1885 is authentic and valid, and that of 1900 is not, the appellant might practically be deprived of all opportunity to present her rights upon appeal. The admission of the will of 1885 to probate involves, of course, the revocation of the probate of the will of 1900. Only in connection with such a direct attack upon the latter will could she be heard to offer proof of the former.
The policy of our statutes is that one whose interests may by reasonable probability be affected by judgment of the county court shall have the right to demand a review upon appeal in the circuit and supreme courts; That right is to be favored; and, while it is by statute confined to a “person ag-greived,” those words must bo interpreted liberally to protect the opportunity. May it not be said that one who is interested under an instrument if it be valid is aggrieved by a judgment which, by necessary implication, is conclusive upon its invalidity so as to preclude her from ever trying that question? The exact subject has perhaps never been decided in any jurisdiction where the power of originally adjudicating the validity of a will is so strictly limited to one court as in this state. But the reasons which j ustify recognition of such an appellant as ^n aggrieved party have received the sanction of some courts of high standing. Buckingham's Appeal, 57 Conn. 544, 18 Atl. 256; Morey v. Sohier, 63 N. H. 507, 3 Atl. 636; McDonald v. McDonald, 142 Ind. 55, 41 N. E. 336.
Upon due reflection we are convinced that in a predicament like this those reasons should control; although, if the objection to the later will were first offered in the county court, we should highly favor the practice which prevails in Eew York of refusing to listen to such a contestant until she had presented to that court for probate the will under which
2. Exclusion of attending physician’s testimony and opinion as to mental competency, based entirely upon information derived from decedent’s statements or physician’s observation while treating her professionally and for the purpose of such treatment:
Our decisions upon the statute (sec. 4075, Stats. 1898) giving privilege of secrecy to all information acquired by physician from patient -in attending latter professionally, necessary to enable prescription for such patient, have eliminated .from consideration very many of the refinements and distinctions with which some other courts have limited, if not emasculated, similar statutes. Thus the privilege under our statute is not confined to communications made by the patient, but extends to all information, however derived by the physician in the cpurse of professional attendance and for the purpose specified. McGowan v. Supreme Court I. O. F. 104 Wis. 173, 186, 80 N. W. 603; Green v. Nebagamain, 113 Wis. 508, 512, 89 N. W. 520; In re Downing’s Will, 118 Wis. 581, 590, 95 N. W. 876. USTeither are the words “necessary” or “prescribe” to receive any technical or unduly restricted meaning. In re Will of Bruendl, 102 Wis. 45, 47,
“The legislature has decided wisely that public policy requires such measure of restriction upon the freedom of the physician to testify or of others to demand testimony (Italics mine.)
While the decision in this case turned on other considerations, the above remark was made with deliberation and in response to full discussion. We adhere to that'view, and hold that no one, save the patient himself, can effectively consent to withdrawal of this mantle of secrecy which the statute has cast about the information which the physician needfully acquires in and for professional treatment.
Appellant contends further, however, that the statute has no application to a contest over the probate of a will, and cites quite an array of cases where courts have, on one theory or another, reached substantially that conclusion. While most of these cases relate to the testimony of attorneys as to the very transaction of preparing the will, a few of them either deal directly with physicians or admit evidence of attorneys on grounds seemingly applicable to physicians. The great majority of these proceed on the ground that the right to waive the privilege, personal to the testator -while living, passes on his death to those who succeed to his estate. This doctrine grew up in dealing with communications to attorneys with
The authorities supporting admissibility of attorneys’ testimony as to the transaction of preparing and executing a will, which do not rest upon a right of waiver of privilege in the legal representatives, do rest upon grounds wholly inapplicable to the physician’s testimony excluded by the trial court. The real ground, albeit not very clearly declared in some of them, is that the very transaction itself evinced an intention and desire on the part of the testator that the attorney should disclose what transpired, and therefore he himself had waived the statutory and common-law seal of secrecy. The clearest cases are those-where, at the testator’s request, the attorney became a subscribing witness to his will. In re Coleman’s Will, 111 N. Y. 220, 227, 19 N. E. 71; McMaster v. Scriven, 85 Wis. 162, 168, 55 N. W. 149. In such cases the thing done must be futile unless the acts and declarations constituting the execution and publication of the will be disclosed in testimony by the attorney; hence by clear implication the testator declares his wish that they be disclosed to the extent necessary. Other instances of implied waiver by the client are collected in Koeber v. Somers, 108 Wis. 497, 503, 84 N. W. 991, and Herman v. Schlesinger, 114 Wis. 382, 393, 90 N. W. 460. Obviously no such purpose can be ascribed to the disclosures made to a physician for purpose of treatment by him because at or about the same time the patient prepares and executes a will. There is no rational connection between the two things; no probability that the patient expects or wishes his physician to publish to the world acts perhaps in
The case In re Downing’s Will, 118 Wis. 581, 95 N. W. 876, urged by appellant, turned on the fact that the attorney who testified did not act in a professional capacity, but merely as a scrivener, and therefore the communications made to him were not made “in the course of his professional employ-ment.” True, reference is made in the opinion, without express disapproval, to certain cases suggesting the doctrine of waiver by personal representatives and a lapse of the duty of secrecy after death of a testator; but there was no purpose to adopt such doctrine, for the facts as determined did not at all call for its application. That case, however, applied to an attorney’s testimony, and expressly points out the obvious distinction between the privilege statutes relating respectively to physicians and attorneys and the much superior breadth and comprehensiveness of the former, and consequent inapplicability of decisions under the latter.
After considering all the arguments urged by appellant or suggested in authorities cited, we are constrained to adhere to the views heretofore maintained by this court that sec. 40Y5 is to be enforced according to its words, with no exception, save in the presence of a clear waiver of the privilege of secrecy by the patient himself; and that, after his ability to make such waiver is terminated by death, the physician’s lips are forever sealed under all circumstances. Hence, that no error was committed by excluding the evidence in this case.
By the Gourt. — Judgment affirmed.