when the terms of the writing are not clear that collateral evidence may be received to ascertain its intent. Re Longer, 108 Iowa, 34, 75 Am. St. Rep. 206, 78 N. W. 834. Otherwise, the intent will be gathered from the instrument itself."

Even if it were possible to determine from the language of the instrument in question, and the oral evidence, and the act of delivery, that it was the intention of the deceased that it should not take effect until after his death, still it would be good as a deed or conveyance under 2055, Civil Code 1913, which reads as follows: "An estate of freehold or inheritance may be made, to commence in future, by deed or conveyance, in like manner as by will."

This statute was lifted bodily from Texas (Vernon's Sayles's Civ. Stat. (Tex.) 1914, art. 1111). The courts of the latter state, under this statute, have construed to be deeds of conveyance: An instrument containing a covenant that grantor

should retain possession during his
lifetime (Carpenter v. Hannig,
Tex. Civ. App.
Tex. Civ. App. -, 34 S. W. 774;
Matthews v. Moses, 21 Tex. Civ.
App. 494, 52 S. W. 113); an instru-
ment reciting, "this deed is to take
effect at my death, and not before"
(McLain v. Garrison, 39 Tex. Civ.
App. 431, 433, 88 S. W. 485, 89 S.
W. 284).
W. 284). See also Wright v. Giles,
60 Tex. Civ. App. 550, 129 S. W.
1163; Belgarde v. Carter, Tex.

Civ. App., 146 S. W. 964; Low v.
Low, -
Low, Tex. Civ. App. -, 172 S. W.
590.

notation are not set out herein in their bearing on the specific question therein considered, although some of them are cited because of their value on the general question indicated in the above title.

The question whether the privilege of confidential communications to a physician is waived by the physician's certificate as to the cause of death of the insured is treated in the annotation in 17 A.L.R. 370.

The privilege in regard to a physician's testimony is purely statutory and is subject to change at any time, at the will of the legislature. Bozicevich v. Kenilworth Mercantile Co. (1921) 58 Utah, 458, 17 A.L.R. 346, 199 Pac. 406. Hence, the present question is one of statutory construction.

While there is a similarity in the statutory provisions on the question

in a number of the states, yet in other states provisions are quite different, and this fact accounts in part for the difference in the conclusions reached by the courts. This, however, does not entirely explain the divergent views of the courts, there being a conflict of authority even as to the proper interpretation of somewhat similar provisions.

The object of the statute making communications between physician and patient privileged being not absolutely to disqualify the physician from testifying, but to enable the patient to secure medical aid without betrayal of his confidence, the patient may waive the objection and permit the physician to testify. 28 R. C. L. 542.

The present question, however, presupposes that the patient has died without effectually waiving the privilege.

Before taking up the question as to the particular classes of persons who may waive the privilege in the event of the patient's death, assuming that it may be waived after the patient's death by someone, the inquiry arises as to whether this assumption is well founded. In case of the patient's death, does the right of waiver die with him? May the privilege be waived by anyone other than the patient himself? On this question there is a conflict of authority.

The weight of authority, under the statutes of most of the states, is that the right of waiver is not limited to the patient himself, but after his death extends to those who may properly be regarded as standing in his place or representing him. This has been true, even in the case of statutory provisions which make no mention of waiver, but are in terms of absolute prohibition of disclosure of information obtained by physicians in a professional capacity. Supporting this general proposition are the following cases:

Arizona.-SCHORNICK V. SCHORNICK (reported herewith) ante, 159.

Indiana. Masonic Mut. Ben. Asso. v. Beck (1881) 77 Ind. 209, 40 Am. Rep. 295; Penn. Mut. L. Ins. Co. v. Wiler (1885) 100 Ind. 92, 50 Am. Rep. 769; Morris v. Morris (1889) 119 Ind. 341, 21 N. E. 918; Towles v. McCurdy (1904) 163 Ind. 12, 71 N. E. 129; Heaston v. Krieg (1906) 167 Ind. 101, 119 Am. St. Rep. 475, 77 N. E. 805; Pence v. Myers (1913) 180 Ind. 282, 101 N. E. 716; Studabaker v. Faylor (1912) 52 Ind. App. 171, 98 N. E. 318.

Kansas. Fish v. Poorman (1911) 85 Kan. 237, 116 Pac. 898; Flack v. Brewster (1920) 107 Kan. 63, 190 Pac. 616.

Michigan. Fraser v. Jennison (1879) 42 Mich. 206, 3 N. W. 882; Johnson v. Fidelity & C. Co. (1915) 184 Mich. 406, L.R.A.1916A, 475, 151 N. W. 593.

Minnesota.-Olson v. Court of Honor (1907) 100 Minn. 117, 8 L.R.A. (N.S.) 521, 117 Am. St. Rep. 676, 110 N. W. 374, 10 Ann. Cas. 622 (see quotation from this case in the annotation in 15 A.L.R. 1545).

Missouri.-Groll v. Tower (1884) 85 Mo. 249, 55 Am. Rep. 358; Thompson v. Ish (1889) 99 Mo. 160, 17 Am. St. Rep. 552, 12 S. W. 510. See also Ex parte Gfeller (1903) 178 Mo. 248, 77 S. W. 552.

affirmed without opinion in (1906) 186 N. Y. 601, 79 N. E. 1117; Trieber v. New York & Q. C. R. Co. (1912) 149 App. Div. 804, 134 N. Y. Supp. 267. Utah.-Grieve v. Howard (1919) 54 Utah, 225, 180 Pac. 425, overruling Re Van Alstine (1903) 26 Utah, 193, 72 Pac. 942.

Under the Iowa statute providing that no physician should be allowed, in giving testimony, to disclose any confidential communication properly intrusted to him in his professional capacity and necessary to enable him to discharge the functions of his office, but that such prohibition should not apply to cases "where the party in whose favor the same are made waives the rights conferred," it was unsuccessfully contended in Denning v. Butcher (1894) 91 Iowa, 425, 59 N. W. 69, that the prohibition of the statute was a privilege which died with the person, and that the bar of the statute could not be removed after the testator's death, by his representatives or heirs. The court said: "There is no question that the settled practice in this state has been to receive the testimony of the attending physician touching the testator's physical and mental condition at and prior to the time of the execution of the will; and unless the reasons are obvious and urgent, and a proper construction of the statute requires it, no rule should be established which will set aside a practice long recognized as proper and necessary.

While the authorities are not in entire harmony, we think the better rule is that the prohibition of the statute may be waived, either by the testator, or, after his death, by those who stand for him, and in this case by the executor. The executor called these physicians as witnesses, and by so doing he has waived the provisions of the statute prohibiting them from giving evidence acquired in the perform ance of their duties as physicians.

. . In such cases, the statute protecting one during his lifetime from the disclosure of confidential communications hardly requires that construction, in case of his death, which will prevent the accomplish

ment of the policy of the law in upholding his testamentary disposition of his property, and deprive the court, and parties interested in maintaining the will, of evidence which must often be of the most satisfactory character. We discover no good reason why the privileges of the statute may not be thus waived by those whose interest it is to maintain the integrity of the will, thus effectuating the wishes of its maker."

The Nebraska cases cited supra were decided under a statutory provision similar to that in Iowa, above set out.

In Groll v. Tower (1884) 85 Mo. 249, 55 Am. Rep. 358, although the statute did not expressly provide for the right of waiver, but declared merely that certain persons should be incompetent to testify, among them being a physician concerning any information acquired by him from a patient while attending the latter in a professional character and necessary to enable him to prescribe for such patient, yet the court held that where the evidence of the attending physician is offered by the patient, or, as in this instance, by his representative (his widow, who sued for damages alleged to have been sustained by the defendant's negligence), the evidence was competent and admissible. The court seems to assume that the widow is the representative of the patient for this purpose, and discusses principally the question whether, under such a statute, there could be any waiver at all, either by the patient or his representative.

The same conclusion, that the patient, or, after his death, his representative, may waive the statutory privilege, is reached in Thompson v. Ish (1889) 99 Mo. 160, 17 Am. St. Rep. 552, 12 S. W. 510, in which the court said: "Notwithstanding our statute provides for no exception, still it deals with a privilege, and it must be taken as established law that the privilege may be waived by the patient; and we have held that it may be waived by the representative, and, in this, our ruling accords with that of the supreme court of Michigan under a

like statute. If the patient may waive this right or privilege for the purpose of protecting his rights in a litigated cause, we see no substantial reason why it may not be done by those who represent him after his death, for the purpose of protecting rights acquired under him."

The position that attorneys and physicians are substantially on the same ground, under the statute, with respect to privileged communications, and that the privilege may be waived by the patient, or, after his death, by his representative, is supported also by Ex parte Gfeller (1903) 178 Mo. 248, 77 S. W. 552, although, in this instance, an attorney rather than a physician was the witness.

And the Michigan statute providing in effect that no physician should be allowed to disclose any information which he acquired in attending a patient in a professional character, and which was necessary to enable him to prescribe for the patient, was held in Fraser v. Jennison (1879) 42 Mich. 206, 3 N. W. 882, to establish a rule of privilege for the protection of the patient, which he might waive, or which, after his death, might be waived by those who represented him, for the protection of the interests which they claimed under him. This conclusion was reached notwithstanding the apparently absolute terms of the statute.

The statement in Storrs v. Scougale (1882) 48 Mich. 387, 12 N. W. 502, that the privilege cannot be waived by anyone but the patient himself, seems to go beyond what was necessary for the decision in that case, which was merely to the effect that the physician himself could not waive the privilege. The Michigan statute was subsequently amended, by Statute of 1909, by adding a proviso that after the decease of the patient, in a contest on the question of admitting the will of the patient to probate, the heirs at law of such patient, whether proponents or contestants of the will, should be deemed to be personal representatives of the deceased patient for the purpose of waiving the privilege created by the statute. See

Re Oldenberg (1913) 177 Mich. 150, 142 N. W. 1076, which is set out under III. infra.

There are, however, a number of cases in which the position is taken that the right of waiver, if any, is a privilege which can be exercised by the patient alone, and cannot be exercised after his death by his heirs, personal representatives, or others purporting to stand in his place or to represent his estate (the statutory provisions involved are subsequently set out). California. Street R. Co. 47 Pac. 1019, 1 Mississippi.

Harrison v. Sutter (1897) 116 Cal. 156, Am. Neg. Rep. 403.

McCaw v. Turner (1921) 126 Miss. 260, 88 So. 705.

New York. Westover v. Ætna L. Ins. Co. (1885) 99 N. Y. 56, 52 Am. Rep. 1, 1 N. E. 104 (set out in the annotation in 15 A.L.R. 1546); Renihan v. Dennin (1886) 103 N. Y. 573, 57 Am. Rep. 770, 9 N. E. 320; Loder v. Whelpley (1888) 111 N. Y. 239, 18 N. E. 874; Re Coleman (1888) 111 N. Y. 220, 19 N. E. 71. See, contra, Staunton v. Parker (1879) 19 Hun, 55. (As to rule under later New York statute, see cases from this state, supra.)

Wisconsin. Re Hunt (1904) 122 Wis. 460, 100 N. W. 874; Casson v. Schoenfeld (1918) 166 Wis. 401, L.R.A.1918C, 162, 166 N. W. 23; McGinty v. Brotherhood of R. Trainmen (1919) 169 Wis. 366, 172 N. W. 714; Maine V. Maryland Casualty Co. (1920) 172 Wis. 350, 15 A.L.R. 1536, 178 N. W. 749.

In Harrison v. Sutter Street R. Co. (Cal.) supra, it is held that under a statute which provides that the physician may not testify as to communications "without the consent of his patient," the patient alone may waive the privilege, and that his legal representatives cannot. The court said that this construction was not unreasonable in view of the peculiar terms of the statute in that state, which seemed to be framed closely after that

in New York, and followed the decisions in the latter state construing a similar statutory provision.

And the right to waive the statutory privilege has been held to be limited to the patient himself, and not to extend after his death to those who might represent him or his estate, under the Mississippi statute providing that all communications made to a physician or surgeon by a patient under his charge, or by one seeking professional advice, are privileged, and that such physician or surgeon shall not be required to disclose the same in any legal proceedings "except at the instance of the patient." McCaw v. Turner (Miss.) supra. The court said: "The statute in plain and unambiguous language limits the right to waive the privilege to the physician's patient, and the right must be so limited by the courts, unless the manifest reason and obvious purpose of the statute would be sacrificed by adhering to a literal interpretation of its language. The manifest

reason and obvious purpose of the statute is to enable a patient to disclose his infirmities to his physician in order that the physician may prescribe for his disease, without fear that his feelings will be shocked or his reputation tarnished by their disclosure by the physician without his consent, which purpose will not only not be sacrificed by giving the words of the statute their usual and ordinary meaning, but, on the contrary, will be sacrificed unless its words are given that meaning. The statute does not limit the privilege to the life of the patient, neither does it confer upon his heirs or devisees who may quarrel over his property the right to tarnish his reputation by causing his physician to disclose his infirmities."

So, the view that the privilege is personal with the patient, and cannot be waived by his heirs and personal representatives after his death, under a statute providing that a physician cannot, "without the consent of his patient," be examined as to any information acquired in attending the patient, which was necessary to en

able him to prescribe or act for the, patient, is taken also in Auld v. Cathro (N. D.) supra, in which it was held in a case of a will contest that the heirs and special administrator could not waive the statutory prohibition, over the objection of the executor and legatee.

It was held in Boyle v. Northwestern Mut. Relief Asso. (1897) 95 Wis. 312, 70 N. W. 351, that the physician himself could not waive the privilege under a statute providing that no physician should be "compelled" to disclose any information acquired in attending a patient in a professional character, which information was necessary to enable him to prescribe for the patient as a physician, the court saying that the provision was clearly for the benefit of the patient, and for his protection, and that such information could not be disclosed by the physician without the patient's consent.

And in Re Hunt (1904) 122 Wis. 460, 100 N. W. 874, in a case of a will contest, the court held that no one except the patient himself could waive the statutory privilege as to information obtained by a physician in a professional capacity, and that testimony of the attending physician of the testatrix as to her mental capacity was properly excluded.

That the statutory privilege cannot be waived by a parent of the patient, who contests his will, see Re Mansbach (Mich.) under II. d, infra.

Such cases as Hoyt v. Hoyt (1889) 112 N. Y. 493, 20 N. E. 402, where there was a mere failure to object to the physician's testimony at the time it was offered, should be distinguished from those cases with which the present annotation is concerned on the question as to who may waive the privilege, assuming that the evidence is properly objected to. The court said that the privilege must be claimed and the proposed evidence must be seasonably objected to, and that it is too late, after the examination has been insisted upon and the evidence has been received without objection, to raise the question of competency by a motion to strike it