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out. And it was accordingly held Michigan. Fraser v. Jennison that where the contestant of a will (1879) 42 Mich. 206, 3 N. W. 882. demanded that the physicians who at- Missouri. See Groll v. Tower tended the testatrix be produced as (1884) 85 Mo, 249, 55 Am. Rep. 358 witnesses, and while were being (waiver by widow of patient), and examined by the proponent, under di- other cases from this state, cited unrection of the surrogate, no objection

der I. supra. was taken, the statutory privilege was Nebraska. Parker v. Parker waived.

(1907) 78 Neb. 535, 111 N. W. 119;

Re Gray (1911) 88 Neb. 835, 33 II. Waiver by personal representatives.

L.R.A.(N.S.) 319, 130 N. W. 746, Ann. a. In general.

Cas. 1912B, 1037. As to waiver by personal repre

New York. (Express statutory sentatives, see also Olson v. Court of provision. See cases cited infra, this Honor (1907) 100 Minn. 117, 8 L.R.A. subdivision, and under IV. infra.) (N.S.) 521, 117 Am. St. Rep. 676, 110

Utah. Grieve v. Howard (1919) N. W. 374, 10 Ann. Cas. 622, and

54 Utah, 225, 180 Pac. 423, overruling other cases cited in the annotation

Re Van Alstine (1903) 26 Utah, 193, in 15 A.L.R. 1544, in relation to ac

72 Pac. 942. tions upon insurance policies.

The California statute providing It is generally held in those states

that in actions brought to recover where the court has not construed damages on account of the death of the right of waiver as personal to the the patient caused by the negligent or patient, that the statutory prohibition wrongful act of another, the adminisor privilege may be waived by the trator or surviving spouse of the depersonal representative of the patient, ceased may consent to the testimony after his death.

of the physician who attended the Arizona.-SCHORNICK v. SCHORNICK patient, was applied in Moreno v. New (reported herewith) ante, 159 (rec

Guadalupe Min. Co. (Cal.) supra, in ognizing rule).

which it was held that the plaintiff, California. Moreno y. New Guad- who was administratrix and survivalupe Min. Co. (1917) 35 Cal. App. ing spouse, had impliedly waived the 744, 170 Pac. 1088 (express statute

statutory privilege, relating to waiver by administrator in Where the statute provided that negligence cases).

physicians are not competent witnessIndiana. Morris v. Morris (1889)

es as to matters communicated to 119 Ind. 341, 21 N. E. 918; Studabaker

them by patients in the course of v. Faylor (1912) 52 Ind. App. 171, 98

their professional business, it has N. E. 318; Sager v. Moltz (1923)

been held that an administrator c. t. Ind. App. -, 139 N. E. 687. See also

a. may waive the privilege in a proGurley v. Park (1893) 135 Ind. 440, ceeding to contest a will on the 35 N. E. 279, and Pittsburgh, C. C. ground of want of testamentary ca& St. L. R. Co. v. O'Conner (1908) pacity. Morris v. Morris (Ind.) su171 Ind. 686, 85 N. E. 969.

pra. The court said that the patient Iowa. - Denning v. Butcher (1894) or his legal representative might 91 Iowa, 425, 59 N. W. 69; Winters

waive the privilege; that the adminv. Winters (1897) 102 Iowa, 53, 63 Am.

istrator was the representative of the St. Rep. 428, 71 N. W. 184; Long v.

testator, and was seeking to maintain Garey Invest. Co. (1906)

the will, and had the right as such 110 N. W. 26; Re Walker (1910) 152 representative to call the attending Iowa, 154, 128 N. W. 386. See also physician to prove the condition of Kirsher v. Kirsher (1903) 120 Iowa, the testator's mind at the time the will 337, 94 N. W. 846.

was executed. Kansas. See Fish v. Poorman And it was said in Studabaker v. (1911) 85 Kan. 237, 116 Pac. 898, and Faylor (1912) 52 Ind. App. 171, 98 Flack v. Brewster (1920) 107 Kan. 63, N. E. 318, that it is unquestioned that 190 Pac. 616.

the administrator has the power to

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waive the privilege (of confidential (1897) 102 Iowa, 53, 63 Am. St. Rep. communications to a physician), in 428, 71 N. W. 184, Re Walker (1910) order to conserve the interests of the 152 Iowa, 154, 128 N. W. 386, and estate. The suit was one by heirs Denning v. Butcher (1894) 91 Iowa, to set aside a deed on the ground of 425, 59 N. W. 69 (see quotation from the grantor's incompetency, and the this case under I. supra.) See also administrator, in this instance, joined Kirsher v. Kirsher (1903) 120 Iowa, the heirs in waiving the privilege. 337, 94 N. W.846.

And Sager v. Moltz (1923) Ind. And in Flack V. Brewster (1920) App. —, 139 N. E. 687, also, is to the 107 Kan. 63, 190 Pac. 616, although effect that where suit is brought to the question was as to the right of contest a will, which the executor at- heirs to waive the provision of the tempts to uphold, the latter may waive statute making a physician incompethe statutory privilege of communi- tent to testify concerning communicacations between the testator and his tions made to him by his patient in a physician, and may call such physi- professional capacity, "without the cian as a witness, over the objection consent of the patient,” the court said of the heirs, who seek to set aside the that while the privilege was personal will on the ground of the testator's to the patient, and might be waived by incapacity.

him, the general rule was that after The doctrine that the legal repré- his death the privilege might be sentative of the patient, after the waived by his personal representalatter's death, may waive the privi- tives and those interested in the preslege, is recognized by dicta, also, in ervation of his estate. To a similar Gurley v. Park (1893) 135 Ind. 440, effect is Fish y. Poorman (1911) 85 35 N. E. 279, and Pittsburgh, C. C. Kan. 237, 116 Pac. 898. & St. L. R. Co. v. O'Conner (1908) 171 In Fraser V. Jennison (1879) 42 Ind. 686, 85 N. E. 969.

Mich. 206, 3 N. W. 882, although the In Long v. Garey Invest. Co. (1906) statute made no express provision for - Iowa, -, 110 N. W. 26, it was held waiver, but provided in substance that an administrator, in an action to merely that no physician should be alset aside, on the ground of mental lowed to disclose any information acincapacity, bills of sale and deeds to quired in attending a patient in a proreal estate, and to subject the prop- fessional character, which informaerty to claims of creditors filed with tion was necessary to enable him to him as administrator, might waive prescribe for the patient as a physithe privilege, under a statute which cian, the court held that proponents declared that the prohibition “shall not of a will, who were special adminis. apply to cases where the party in trators of the estate, were properly whose favor the same is made waives permitted to call as a witness the atthe rights conferred.” The court said tending physician of the testator, and that ordinarily the administrator or to show by him the latter's condition, executor represents the deceased; on the ground that the rule estabthat in most controversies he acts in lished by the statute was one of privihis stead; and that, as bearing on lege for the protection of the patient, the issue of the deceased's inability which might be waived, after his to execute the instruments in ques- death, by those who represented him. tion, the administrator so far repre- And it was held in Parker v. Parker sented the deceased that he might (1907) 78 Neb. 535, 111 N. W. 119, waive the privilege of the physician that the provisions of the statute as to testimony concerning communi- against disclosure of confidential comcations made to him as such.

munications between physicians and And the doctrine that under this patients might be waived, in a contest statute the executor, in a suit in which respecting the validity of the will of testamentary capacity is contested, the patient, by the personal repremay waive the statutory privilege, sentative of the latter after his is supported by Winters v. Winters death.

So, in Re Gray (1911) 88 Neb. 835, trine, it was held in Westover v. Ætna 33 L.R.A.(N.8.) 319, 130 N. W. 746, L. Ins. Co. (1885) 99 N. Y. 56, 52 Am. Ann. Cas. 1912B, 1037, the court held Rep. 1, 1 N. E. 104 (set out in the that in a contest regarding the pro- annotation in 15 A.L.R. 1546), that bate of a will between the person the privilege could not be waived by therein named as an executor, or a the executor or administrator. legatee, and the heirs at law of the And in Loder v. Whelpley (1888) deceased, the statutory provision for- 111 N. Y. 239, 18 N. E. 874, it was held bidding the disclosure of privileged that the attending physician

physician was communications did not prevent a incompetent to testify as to the testaphysician from testifying on behalf of tor's capacity, although he was ofeither side of the controversy to the fered as a witness by the executor, mental condition of the testatrix, al- who was the proponent of the will. though the information was obtained But the amendments of the New in his professional capacity. The York statute, beginning in 1891, procourt said that the Code provided that vide for waiver by personal reprethe patient might waive the privilege sentatives and other specified classes or protection of the statute, and ap- of persons. See Trieber v. New York proved and applied the doctrine, & Q. C. R. Co. (1912) 149 App. Div. 804, previously held in that state, that the 134 N. Y. Supp. 267, and Twaddell v. statutory right of waiver extends to Weidler (1905) 109 App. Div. 444, 96 the personal representative of a de- N. Y. Supp. 90, affirmed without opinceased person. The court said that ion in (1906) 186 N. Y. 601, 79 N. E. if heirs at law, to protect the prop- 1117, in which it was held that the erty of their ancestor from an insane testimony of a physician as to the conact, and to obtain their own rights un- dition of a person who executed a bill der the Statute of Distribution, may of sale, which it was contended was require a physician to testify to the procured from her by fraud and false condition of his patient's mind, there representation, was properly admitwas no reason why a legatee or an ted, upon the waiver of professional executor might not also call upon him, secrecy by the plaintiff, as the execufor the purpose of protecting the will trix of such person. (See also cases and a legacy under it.

from this state cited under IV. infra, But it was held in Hutchins v. and other subdivisions of the annotaHutchins (1919) 48 App. D. C. 495, tion.) that in will contest proceedings the By way of illustration of cases passexecutors in the will were not "legal ing on the question of what amounts representatives," and so entitled to to a waiver, rather than on the queswaive the privilege, within the mean- tion as to who may create a waiver, ing of a statute providing that no see also Holcomb v. Harris (1901) 166 physician should be permitted, "with- N. Y. 257, 59 N. E. 820, in which the out the consent of the person afficted, court said it was difficult to imagine or of his legal representatives," to a clearer case of waiver than for the disclose any information, confidential legal representatives of a deceased in its nature, which he had acquired patient to call his former physician in attending a patient in a profession- to the stand and ask him to disclose al capacity and which was necessary professional information. to enable him to act in that capac- Although somewhat beyond the ity.

scope of the annotation, involving the Under the earlier New York stat- effect of the failure of the adminisute (as shown by the cases from this trator to waive the privilege, atstate cited under I. supra), it was held tention is called to Brackney v. Fogle that the waiver must be by the patient (1901) 156 Ind. 535, 60 N. E. 303, in himself, the statute providing that which it is held erroneous, in a suit its provisions should apply unless to contest a will, where testimony of "expressly waived by

the the physician who attended the testapatient.And, applying this doc- trix in her last illness is offered,


but is objected to by the administrator the physician, under the New York c. t. a., and is excluded as privileged statute enumerating certain persons under statute, for the court to instruct who might waive the privilege, as the the jury that the administrator had the surviving husband, heirs at law or right to waive objection to such testi- next of kin, “or any other party in inmony and could himself call the phy- terest." The court said: “If the sician as a witness, and that his script should be refused probate, the failure to do so, or to permit him to estate of which he is the legal repretestify, might rightfully be

sentative would be materially benemented on by counsel, and that the fited. As executor of the husband's jury might consider the conduct of the estate it is his duty to collect the asadministrator in these respects, with sets of the estate, to enforce all claims all the other evidence, in determining or demands existing in favor of the the case.

decedent at the time of his death, and And although involving testimony to prosecute any action or proceeding of an attorney, attention is called to to which his decedent was a party. the general statement in Re LeProhon As the law imposes upon him the (1907) 102 Me. 455, 67 Atl. 317, 10 duty of being a party to the contested Ann. Cas. 1115, that, in the case of probate proceeding, and continuing persons deceased, it is held that the · that proceeding to its termination, he right of waiver, when the character is necessarily an interested party. He and reputation of the deceased are is also an interested party, because not involved, is lodged in the person- the estate which he represents will be al representative-that is, the exec- substantially affected by the result of utor or administrator of the estate, the proceeding.” or the heirs of the deceased; the ground upon which they are permitted

c. Proceedings for removal of adminis.

trator. to exercise the right of waiver being based upon the fact that they are

It was held in Scott v. Smith (1908)

171 Ind. 453, 85 N. E. 774, that in a interested in the protection of the es

proceeding for the removal of an adtate, and on the presumption that they would consent to the waiver of ministrator he could not waive the

privilege created by the statute and the privileged communication only for the purpose of securing that

render competent testimony of the end.

physician who attended the deceased, !

as to matters learned by him by reaThe decision in Auld v. Cathro (1910) 20 N. D. 461, 32 L.R.A.(N.S.)

son of that relation, the court saying

that while the personal representative 71, 128 N. W. 1025, Ann. Cas. 1913A, 90, that the special administrator

might, in some instances, waive the could not waive the statutory prohibi.

privilege, yet this could be done only

in those cases wherein they were tion, is based on the ground that the privilege is personal with the patient,

seeking to protect or conserve the in

terests of the estate; that in this case and cannot be waived after his death.

the administrator was seeking to use See this case under I. supra.

the testimony merely to resist the ap. b. Waiver by representative of spouse of

plication to remove him as adminispatient.

trator, and for such a purpose he did It was held in Re Mele (1916) 94

not enjoy the right of waiver, Misc. 555, 157 N. Y. Supp. 669, that d. Representative seeking to overthrow where the husband of the testatrix will or transfer of property. filed objection to the probate of her Some cases have made a disalleged will, and before the matter tinction, as regards the representacame on for hearing the husband tion of the deceased patient by his died, and the executor of his estate personal representatives for purposes was made a party to the proceeding, of waiver, between cases where the such executor was "a party in inter- representative is seeking to uphold the est,” entitled to waive the privilege of purported will or transfer of property of the patient, and cases where he formation obtained by an attending is seeking to defeat or set aside the physican. See Re Oldenberg (Mich.) same. This distinction seems to be under III. infra, decided under later based upon the assumption that the statute, and construing this decision. will or transfer of property is valid,- But in an action brought by a speat least, prima facie,-and therefore cial administrator of a deceased that the party seeking to annul the grantor to set aside a deed made by same is opposing rather than properly her on the ground of mental incapacrepresenting or standing in the place ity, fraud, and undue influence, the of the patient. But the very point court in Grieve v. Howard (1919) 54 in controversy seems thus to be as- Utah, 225, 180 Pac. 423, overruling sumed (see Winters v. Winters (Iowa) Re Van Alstine (1903) 26 Utah, 193, under III. infra); and it cannot be 72 Pac. 942, held that the plaintiff, said that the distinction is one which as the personal representative of the is supported by the weight of author- patient, could waive the privilege, ity. The principle would apparently under a statute providing that a phybe involved in cases generally of sician cannot, "without the consent heirs who were contesting the pa- of his patient," be examined as tient's will. See III. infra, for cases information acquired in attending the involving the right of heirs to waive patient, which was necessary to enthe privilege, where they contest wills able him to prescribe or act for the or transfers of property of the pa- patient. The court said: “In view of tient, since deceased.

the state of the law as we find it, and Under the Indiana statute, making our own convictions of what is most physicians incompetent to testify to reasonable and just, we are of the matters concerning their patients opinion that under our statute the which they learned by reason of their personal representative of a deceased professional relation, it was held in person has the same right to waive Heaston v. Krieg (1906) 167 Ind. 101, the privilege given by the statute, 119 Am. St. Rep. 475, 77 N. E. 805, after the death of the patient, as the that in an action to contest a will and patient would have had if living. probate a subsequent one, the testa- Some of the cases above cited go still tor's physician was incompetent to further, and hold that even the heirs testify as to matters learned in his pro- or devisees of the deceased may waive fessional capacity as to the testator's the privilege, especially where there mental condition, and that the executor is no personal representative. We of the first will could not waive the are not unmindful of the fact that in privilege existing for the purpose of many of the cases referred to the overthrowing that will. The court reason is given that such a rule is said that a waiver must have its necessary in order to uphold the will basis in the right of the decedent, and or other act of the deceased. Viewed in such a case as this it can only be from that standpoint, it would seem invoked by the executor who is seek- that plaintiff does not fall within the ing to support what, prima facie at rule, for the reason that he is seeking least, was he valid act of his testa- by this action to set aside the deed tor. See Winters v. Winters (Iowa) executed by the deceased, instead of under III. infra, criticizing Indiana trying to uphold it. But it must also decisions.

be borne in mind that whether or And it was held in Re Mansbach not the execution of the deed in ques(1907) 150 Mich. 348, 114 N. W. 65,

tion was an intelligent, conscious, that the mother of the deceased, who voluntary act of the deceased was the contested his will on the ground of very question to be determined, and testamentary incapacity was not his therefore to assume that plaintiff is representative, but stood in the suit taking a position adverse to the dein the attitude of an adverse party, ceased, or to those rightfully claiming and, therefore, had no right to waive under her, is to assume as true a the statutory privilege respecting in seriously controverted fact. We feel

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