Eliza Pringle, Appellant, v. Fannie Louise Burroughs, née Temple, Individually, and as Executrix, etc., of Joseph Hamilton Bryan, Deceased, Respondent; Eliza J. Bryan and Others, Appellants, Impleaded with Others

Eliza Pringle, Appellant, v. Fannie Louise Burroughs, née Temple, Individually, and as Executrix, etc., of Joseph Hamilton Bryan, Deceased, Respondent; Eliza J. Bryan and Others, Appellants, Impleaded with Others. Physician’s testimony as to information acquired while attending a patient — what constitutes a waiver by the next of kin. ■ ' Where one of the heirs at law and next of kin of a decedent brings an,action against the other heirs at law and next of kin of the decedent and the chief beneficiary under his alleged will to set aside the probate of such will on the ground that it was not the voluntary act of the decedent, and all of the defendant heirs at law and next of kin join in the prayer of the complaint, the act of. the plaintiff in calling a physician who attended the decedent during the month in which he died to testify concerning the decedent’s condition at the time he attended him, constitutes an express waiver, under section 836 of the Code of Civil Procedure, of the provisions of section 834. of that Code, preventing a physician fiom disclosing any information acquired by him in his professional capacity. ■ Appeal by the plaintiff, Eliza Pringle, and by the defendants Eliza J. Bryan and others, from a judgment of the Supreme Court in favor of the defendant,' Fannie Louise Burroughs, née Temple, individually, and as executrix, etc., of Joseph Hamilton Bryan, deceased, entered in the office of the clerk of the county of New York on the 17th day of December, 1900, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s officé on the 5th day of January, 1901, denying the appellants’ motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 5th day of January, 1901, denying the plaintiff’s motion to amend the judgment by inserting after the word “ verdict ” the words. “ by direction of the court.” The action was brought to determine the validity of the probate of the will of Joseph. H. Bryan who died September 20, 1899, The will- was executed September 6, 18.99, and was admitted to probate on November 6, 1899. By it the testator,: after directing the payment of his debts and giving to his aunt, the plaintiff herein, an annuity of $200 for life, devised all the rest of his estate to Fannie Louise Temple (the defendant Fannie Louise Burroughs), his cousin, u to have and to hold absolutely,” expressing the wish that she attend to the wants of his two sisters. He also made her executrix of his will, and as such authorized her to sell and convey his real estate as she deemed advisable. The complaint alleges that the deceased left him surviving a vwidow and two unmarried sisters, both of whom are of unsound mind, no children or issue of deceased child, no father or mother, and no children of deceased brother or sister; that he owned certain real estate at the time of his death, and by a will executed prior to the one in question® had given to this plaintiff the sum of $5,000, and such will is the true and valid will of the deceased; that the will admitted to probate was not his will and its execution “ was not the free, unconstrained or voluntary act of said deceased,” and that at the time it was or purports to have been executed he was not “ of sound mind, memory or understanding or capable of making a will.” The defendants, other than Burroughs, who were also interested in the will, took sides with the plaintiff in their answers. It appears from the evidence that the plaintiff, who lived at the home of the deceased at the time of the trial, was seventy-seven years old; that the deceased when he died was fifty-two years of age and had been in ill-health for about two years ; that the defendant Fannie Burroughs was a cousin or second cousin of the deceased, but not of the Bryan blood, and that she used to come to the house regularly and take his mother (sister of the plaintiff) to church, and after her death came into the “ house and stayed there all the time. * * * She begán to nurse” Mr. Bryan, who was then much worse, and looked after the house and gave orders to the maids up to the time of his death some months later; that during this time a new will—the one in dispute — was made, two lawyers coming to the house for that purpose, one being the lawyer who had previously acted for the deceased. Upon the evidence adduced, the court directed the jury to find a verdict sustaining the probate of the will; and from the judgment so entered, the plaintiff and the defendants other than Fannie L. Burroughs appeal. Lewis E. Carr, for the appellants. W. W. Buckley, for the respondent. [MAJORITY — O’Brien, J.:] O’Brien, J.: Were it not for a ruling upon evidence we should have ho hesitation in affirming this judgment; for the inferences most favorable to plaintiff were insufficient to warrant any finding by the jury that the will of Joseph H. Bryan was not valid or that its execution was not his “ free, unconstrained and voluntary act.” The ruling, however, to which we will briefly refer, requires that the judgment be reversed. One of the physicians, who had attended the deceased before he died, was called as a witness by plaintiff, and Sifter testifying that he had first visited Mr. Bryan during September, 1899, the month of his death, and had obtained information while so acting professionally for him, was asked to state his condition at that time. Objection was interposed, which the trial judge sustained, and the physician was prevented from giving such testimony. It is to be noted in- passing that all the defendants other-than the chief beneficiary, Fannie Louise Burroughs [nee Temple), had joined with the plaintiff in-asking that the will should be declared invalid j and, together, they represented the heirs at law and next of kin of Joseph H. Bryan. The exclusion of the testimony sought to be elicited was because of the prohibition contained in section 834 of the Code of Civil Procedure; -and such ruling, if made prior to the amendment of 1893 embodied in section 836 of the Code, would have been right. (Renihan v. Dennin, 103 N. Y. 573; Matter of Coleman, 111 id. 220.) By that amendment, however, it is provided : “ But a physician or surgeon may, upon a trial or examination* disclose any information as to the- mental or physical condition of a patient, who is deceased which he acquired in- attending such patients professionally,, except confidential communications, and such facts as would tend to disgrace the memory of the patient, when the provisions of section eight hundred and thirty-four have been expressly waived on such trial or examination by the personal representatives of the deceased patient, or if the validity of the last will and testament of such deceased patient is in question by the executor or executors named in said will,, or the surviving husband) widow, or any heir at law or any of the next of kin, of such- deceased, or any other party in interest.” (Laws of 1893, chap. 295.) As held in Matter of Murphy (85 Hun, 575), “The purpose of the amendment evidently was to open more widely the door to the introduction of the evidence of medical attendants of a deceased patient when the validity of his will should be in question. The right of waiver was, therefore, extended to others having the relations mentioned to the deceased, and to those having the legal relation of parties in interest, and who are properly in the action or proceeding in which the question arises before the court.” It is insisted by the respondent that here there was no “ express waiver” and that the mere calling of the physician as such, was insufficient to constitute a waiver. This precise question, however, has been determined adversely to the respondent in Holcomb v. Harris (166 N. Y. 257, 263), where the court said : “It is difficult to imagine a clearer act of waiver than for the legal representatives of a deceased patient to call his former physician to the stand and ask him to disclose professional information falling within the provisions of section 834 of the Code.' * * * The rejected evidence was material, and, while regretting the necessity for a new trial, we are compelled to hold that this ruling of the trial judge presents reversible error.” We can add nothing, to this authority, which is controlling upon us, and requires that the judgment and order appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event. Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ.,. concurred. Judgment and order reversed, new trial ordered, costs to appellant to abide event.