163 Ind. 12 | Ind. | 1904
A writing purporting to be the will of Elijah M. Tinder, deceased, was duly presented for probate in the Hendricks Circuit Court, Eebruary 24, 1902. No action was taken in the matter, but on Eebruary 26, 1902, Mary E. McCurdy, one of the appellees, prior to the admission of the supposed will to probate, filed her objections thereto in the manner and form required by the statute. The grounds upon which the probate was resisted were alleged unsoundness of the mind of the said Elijah M. Tinder, that the said will was unduly executed, and that it was executed under undue influence. Process was issued for the appellant Julia A. Towles, and was served upon her. No further proceedings were taken in the cause'until October 18, 1902, when William H. Tinder, one of the defendants, filed a disclaimer, so-called. Two days afterward the other defendants, Julia A. Towles and Edward E. Tinder, filed an answer in denial. The cause was tried by the court without a jury, and a finding was made against the validity of the will. Judgment was rendered refusing the probate thereof. The appellants moved to set aside the submission of the cause and to render judgment that the will be admitted t'o probate. Their motion was overruled. They asked for a new trial, and this motion also was overuled. Error is assigned upon these decisions.
I. The specific error of law assigned as a reason for a new trial w'as the ruling of the court admitting the testimony of Dr. C. A. White, the physician of the decedent, concerning the physical and mental condition of his patient, and as to various facts relating thereto, observed and learned by the physician while treating the decedent during his last illness and on former occasions. The contest over the will was between the children of the decedent, one of whom, Edward E. Tinder, was the sole legatee and devisee named in that instrument.
The testimony objected to by the appellants related to facts discovered and information obtained by the witness while visiting and treating, or being consulted by, the decedent, as his physician. It follows from what has been said that the witness was not competent to testify concerning'these matters, unless the objection to the evidence was waived by those who stood in the place of the decedent, and were authorized to represent him, or, unless the statutory, rule does not extend to cases where the controversy is among heirs and devisees over testamentary dispositions. Eor obvious reasons, when the controversy is among heirs and devisees, the set of such heirs or devisees vdio strive to overthrow the will can not, for their own benefit, and against the wishes of the other set, who desire to sustain it, waive the objection to evidence otherwise incompetent, to the detriment of the interests of those vdio seek to establish the will.
It was held in Kern v. Kern (1900), 154 Ind. 29, that the rule in regard to confidential communications made to attorneys does not apply to testamentary dispositions where the controversy is between the heirs and devisees of the testator. The supreme court of Missouri, in Thompson v. Ish (1889), 99 Mo. 160, 12 S. W. 510, 17 Am. St. 552, held that a like exception should be made as to the testimony of physicians. The same view was taken by the supreme court of Iowa in Winters v. Winters (1897), 102 Iowa 53, 71 N. W. 184, 63 Am. St. 428. See, also, Russell v. Jackson (1851), 9 Hare 387, and Hageman, Privileged Com., §86.
This court, however, in Brackney v. Fogle (1901), 156 Ind. 535, expressly decided that the rule announced in Kern v. Kern, supra, did not apply to the testimony of physicians, and that even where the controversy was confined to the heirs and devisees of the decedent the physician of the decedent was incompetent to testify in regard to communications made to him by his patient,' or facts learned by him in the course of his business as such physician. According to that case, the evidence admitted was not competent, and the court erred in overruling appellants’ objections to it.
2. It appears from the statement of the facts of this case that, while the will of the decedent, with the formal proofs of its execution, was presented to the court February 24, 1902, no action was taken at that time, nor was the court asked by appellants to proceed further with the matter. The objections of the appellee Mary E. McCurdy to the probate of the will were filed prior to it's probate, and this was all that the statute required.
The court erred in admitting the testimony of the physician, Dr. C. A. White, as to communications made to him by the deceased, as'his patient, in the course of his professional business, and facts learned or observed by him as such physician, and the motion for a new trial should have been sustained.
Judgment reversed, with directions to the court to sustain the motion for a new trial, and for further proceedings in accordance with this opinion.
Hadley, J., did not participate in this case.