compelled, therefore, to hold that the plaintiff, as the personal representative of the deceased, charged with the duty of protecting her estate, had the right to waive the privilege granted by the statute, and that the attending physician, under the circumstances of this case, was a competent witness, and would have been permitted to answer the questions." III. Waiver by heirs, devisees, or next of kin. Under the statutes of many of the states the heirs of the patient may waive the protection of the statute as to the privileged nature of information obtained by an attending physician of the patient. Arizona.-SCHORNICK V. SCHORNICK (reported herewith) ante, 159. Colorado. Re Shapter (1906) 35 Colo, 578, 6 L.R.A. (N.S.) 575, 117 Am. St. Rep. 216, 85 Pac. 688. -- Indiana. Studabaker v. Faylor (1912) 52 Ind. App. 171, 98 N. E. 318. But see cases from this state, infra. Iowa.-Winters v. Winters (1897) 102 Iowa, 53, 63 Am. St. Rep. 428, 71 N. W. 184; Barry v. Walker (1910) 152 Iowa, 154, 128 N. W. 386. See also Kirsher v. Kirsher (1903) 120 Iowa, 337, 94 N. W. 846, and Long v. Garey Invest. Co. (1906) Iowa, —, 110 N. W. 26. Kansas. Fish v. Poorman (1911) 85 Kan. 237, 116 Pac. 898; Bruington. v. Wagoner (1917) 100 Kan. 10, 164 Pac. 1057, rehearing denied in (1917) 100 Kan. 439, 164 Pac. 1060; Flack v. Brewster (1920) 107 Kan. 63, 190 Pac. 616; Craig v. Craig (1923) 112 Kan. 472, 212 Pac. 72. Michigan. - Re Oldenberg (1913) 177 Mich. 150, 142 N. W. 1076 (express statute permitting waiver by heirs). Missouri. Thompson v. Ish (1889) 99 Mo. 160, 17 Am. St. Rep. 552, 12 S. W. 510. Nebraska. Re Gray (1911) 88 Neb. 835, 33 L.R.A. (N.S.) 319, 130 N. W. 746, Ann. Cas. 1912B, 1037. New York. Staunton v. Parker (1879) 19 Hun, 55. Later statute expressly provided for waiver by certain classes of persons, including heirs. See New York cases under IV. infra, 31 A.L.R.-12. and other subdivisions of the annota tion. The reported case (SCHORNICK V. SCHORNICK, ante, 159) is in accord with the weight of authority in holding that the heir of the patient might waive the privilege. The further point made in the case that the heir had this right of waiver notwithstanding the fact that he was the attending physician and that the patient was his father does not appear to have arisen in any other case. In Staunton v. Parker (N. Y.) supra, it was held, under the statutory provision relating to privilege of information obtained by a physician unless expressly waived by the patient, that, in a will contest, the privilege might be waived by the heirs of the testator who were contesting the codicil because of want of testamentary capacity. The court said that, the patient being deceased, the provisions of the statute could only be waived by his representative; that the heirs appeared to be the only representatives of the deceased; that they succeeded to his rights, and were competent to waive the provisions of the statute. The decision seems to be contra to the rule in this state, under the earlier statute, that no one but the patient himself could waive the privilege. See I. supra. It was held in Winters v. Winters (1897) 102 Iowa, 53, 63 Am. St. Rep. 428, 71 N. W. 184 (a will contest case), that an heir might waive the privilege under a statute providing that certain persons, including physicians, should not be allowed, in giving testimony, to disclose any confidential communication properly intrusted to them in their professional capacity, and necessary and proper to enable them to discharge the functions of their office, but that the prohibition should not apply to cases "where the party in whose favor the same are made waives the rights conferred." The Indiana cases (see decisions from this state, cited infra) excluding such testimony when offered by an heir, and admitting it when offered by an administrator c. t. a., or an executor, were criticized, it being said: "The particular vice in the reasoning in these cases, in making the distinction between the heir at law and the devisee, is the assumption that the paper in dispute is the will of the deceased. The statutes are for the benefit of the patient while living, and of his estate when dead. The very purpose of the contest is to determine whether the deceased in fact made a will, who shall be his representative, and who is entitled to his estate. If he did not have testamentary capacity, then the paper was not his will, and it is not the policy of the law to maintain such an instrument. It is undoubtedly the policy of the law to uphold the testamentary disposition of property, but not until it is ascertained whether such a disposition has been made. The same presumptions are indulged in favor of the validity of the will as of other written instruments. The paramount purpose, in the first instance, should be to ascertain whether the instrument presented is in fact the will of the deceased. And no one can be said to represent the deceased in that contest, for he could only be interested in having the truth ascertained, and his estate can only be protected by establishing or defeating the instrument as the truth so ascertained may require. The testimony of the attending physician is usually reliable, and often controlling, and to place it at the disposal of one party to such a proceeding, and withhold it from the other, would be manifestly partial and unjust. Such testimony, ordinarily, relates to the capacity of the deceased, and could rarely be perverted to the injury of character. Should it ever be necessary, the court might well, in its discretion, prevent blackening the memory of the dead. . . It is not very material to the result whether we say the heir or devisee may, in the interest of the estate of the deceased, waive the privilege, or that the statute does not apply to a case where the proceedings are not adverse to the estate, and the interest of the deceasd as well as his estate could only be the determination of the truth. In either event we hold that in a dispute between the devisee or legal representative and the heir at law, all claiming under the deceased, the attending physician may be called as a witness by either party." The above case, to the effect that a physician is a competent witness as to the physical and mental condition of his patient, whether called by an executor of the will or by an heir who is contesting it, was approved and followed in Barry v. Walker (1910) 152 Iowa, 154, 128 N. W. 386. And see also Kirsher v. Kirsher (1903) 120 Iowa, 337, 94 N. W. 846, following, without discussion of the question, the Winters Case. In Fish v. Poorman (1911) 85 Kan. 237, 116 Pac. 898, it was held that the heirs at law of the patient might waive the privilege of the statute, so that the physician could testify as to her physical and mental condition at the time of a conveyance by her, which they were attacking on the ground of mental incompetency and undue influence. To the same effect, holding that not only the patient himself may waive the provisions of the statute making a physician incompetent to testify to any knowledge obtained in his professional capacity from his patient, but that, after the patient's death, the privilege may be waived by his heirs at law, is Bruington v. Wagoner (1917) 100 Kan. 10, 164 Pac. 1057, rehearing denied in (1917) 100 Kan. 439, 164 Pac. 1060. The statute made a physician or surgeon incompetent to testify concerning any communication made to him by his patient with reference to any physical disease, etc., or concerning any knowledge obtained by personal examination of such patient, "without the consent of the patient." The action was to set aside transfers of the decedent's property on the ground of mental incapacity. So, in Flack v. Brewster (1920) 107 Kan. 63, 190 Pac. 616, where an action was brought by heirs of a deceased grantor, contesting the validity of a deed executed by the grantor to her sister shortly before her death, on the ground of the unsoundness of her mind at the time the deed was executed, the court held that the heirs might waive the statutory privilege making a physician incompetent to testify as to com munications made to him by his patient in a professional capacity, "without the consent of the patient," it being said: "It has been held that the prohibition of the statute is founded on public policy, and unless it has been expressly waived by the patient the testimony of the physician can never be revealed; that a waiver may not be made by an executor or administrator; that any party to an action can object to evidence coming within the prohibition unless the patient, the person for whose protection the statute was enacted, has waived the privilege; and that when the patient is dead the matter is forever closed. In our state a more liberal view has been taken as to the matter of waiver. For instance, it has been held that, as the statute provides that the patient himself may consent to the testimony of the physician, no question of public policy is involved. The prohibition imposed on the physician is the privilege of the patient, and not of the physician, nor yet of the public, and therefore a patient may make a valid contract waiving the privilege afforded him in the statutory prohibition. While the privilege is personal to the patient and may be waived by him, the general rule is that after his death the privilege may be waived by his legal representative and those interested in the preservation of his estate. The plaintiffs herein, who are suing as the heirs of the deceased, effectually waived the privilege by offering the evidence. They were interested in preserving the estate of the deceased, which would have been largely diminished if effect had been given to the invalid instrument. The defendant, however, is defending as grantee, and not as heir or devisee, and in this litigation she stands in the attitude of a stranger to the estate. Although she is a sister of the deceased, she is not asserting any claim by reason of heirship or relationship to the deceased, and has no greater right to invoke the privilege than would an outsider, if the deed had been made to him. Restrictions on the full development of the facts and the ascertainment of the truth of a controversy are strictly con strued, and, the privilege being personal in its nature, it should not be extended by implication, especially after the death of the one for whose benefit it was given." And in Craig v. Craig (1923) 112 Kan. 472, 212 Pac. 72, it was held that the objection to the testimony of a physician in regard to statements made by his patient was one which might be waived by the heirs of the latter, in a contest with strangers to the estate. And the court said that even in a case between heirs at law, where some consented and others objected to waiving the privilege, it had been intimated by that court that it would probably hold "against any interpretation of rules of evidence which limits judicial inquiry in the ascertainment of truth." The contest in this instance was between the executor and the heir, who opposed probate of the will. In Re Oldenberg (1913) 177 Mich. 150, 142 N. W. 1076, the court held that any heir at law, proposing or contesting the probate of a will, is, for the purpose of waiving the statutory privilege as to information obtained by an attending physician, a personal representative of the deceased patient, where the statute provided in effect that no physician should be allowed to disclose any information acquired by him in a professional character, but 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 his will, shall be deemed to be personal representatives of such deceased patient for the purpose of waiving the privilege hereinbefore created." This rule, it will be observed, was applied in a case where the contest was between the heirs, it being assumed that the heirs were both contestants and proponents of the will, and the conclusion being nevertheless reached that any heir might waive the privilege in such a case. Prior to the amendment of the Statute in 1909, which added the proviso above indicated relating to waiver by the heirs after decease of the patient, the court had held, as stated in Re Oldenberg (Mich.) supra, that, in a will contest between a legatee and a contesting heir at law, the latter is not the representative of the deceased, and is an adverse party, with no right to waive the statutory privilege. This was the effect of the decision in Re Mansbach (Mich.), set out under II. d, supra, as construed in the Oldenberg Case. In Thompson v. Ish (1889) 99 Mo. 160, 17 Am. St. Rep. 552, 12 S. W. 510, the court, in a will contest in which testamentary capacity was in issue, laid down the rule that when the dispute is between the devisee and heirs at law, all claiming under the deceased, either the devisee or heirs may call the attending physician as a witness. The statute provided in effect that a physician should be incompetent to testify concerning any information acquired from a patient while attending him in a professional capacity, without expressly making any provision for waiver. The court considered as analogous the rule applicable in cases of confidential communications between client and attorney, citing authority to the effect that such communications must not be revealed in cases where the rights and interests of a client, or those claiming under him, come in conflict with the rights and interests of third persons, but that this rule does not apply to cases of testamentary disposition of property by the client, the disclosure in such cases not affecting any right or interest of the client, and therefore not being within the reason of the rule. And the doctrine that when the dispute is between the devisee and heirs at law, all claiming under the deceased, either the devisee or heirs may call the attending physician as a witness, is impliedly approved in Re Shapter (1906) 35 Colo. 578, 6 L.R.A. (N.S.) 575, 117 Am. St. Rep. 216, 85 Pac. 688, in which the court said that the purpose of the statute (which is not set out) in regard to privileged communications made to a physician is to protect the patient. And it was held that the physician of a testator was not incompetent to testify, in a proceed ing to probate his will, as to facts ascertained in his attendance upon the patient in a professional capacity. See also Re LeProhon (Me.) under II. a, supra, where the question was as to the right to waive the privilege with respect to testimony of an attorney, but the broad generalization is made that privileged communications may be waived by the personal representative or heirs. On the other hand, there are decisions denying the right of the heirs of the patient to waive the privilege. See Re Mansbach (Mich.) supra. Under a statute providing that a physician "cannot, without the consent of his patient," be examined as to information obtained while attending in a professional capacity, which was necessary to enable him to prescribe, it has been held that an heir attacking the testamentary capacity of a decedent cannot waive the privilege existing between decedent and his attending physician. Re Flint (1893) 100 Cal. 391, 34 Pac. 863. It may be noted that this court, in a later decision, took its stand with those cases which hold that the right of waiver is personal with the patient, and that there can be no waiver after the death of the patient. See Harrison v. Sutter Street R. Co. (Cal.) under I. supra. The court said: "In this case we have no personal representative, and the contest arises between the devisee and the heir. All of the courts concede the privilege does not lapse with death; hence, it is coupled with the evidence when offered at the trial. Who has the power to waive it? Can the heir waive it, as against the objection of the devisee? That is the thing done in this case, and we think the action of the court cannot be sustained. It cannot be said that the heir is representing the deceased, for the heir is attempting to overthrow the will, and offers this evidence of the attending physician, over which the privilege rests, for the very purpose of attacking the mental soundness of the patient. Such is not the representative of the deceased referred to in the various decisions of the courts. This provision of law rests upon a sound public policy. Its object and purpose is to enable the patient to make a full statement of his physical infirmities to his physician, with the knowledge that the law recognizes the communications as confidential, and guards against the possibility of his feelings being shocked or his reputation tarnished by their subsequent disclosure. To him, the considerations are even more weighty that the privilege remain inviolate after he has gone to his grave, for his good name is left behind, deprived of his protecting care. His rights are not buried in the grave, and heirs and devisees quarreling among themselves over a division of his patrimony, in justice to his memory, should not be allowed to waive the privilege." And under the authority of the above case, it was held in Re Nelson (1901) 132 Cal. 182, 64 Pac. 294, that contestants of a will could not, over the objection of the opponents of the will, produce as a witness the attending physician of the testator to show testamentary capacity. In a contest over a patient's will, it has been held that the heirs or devisees who seek to overthrow the will cannot waive the privilege which existed between the attending physician and his patient, under a statute providing that physicians are not competent witnesses as to matters communicated to them by patients in the course of their professional business, or advice given in such cases. Towles v. McCurdy (1904) 163 Ind. 12, 71 N. E. 129; Heuston v. Simpson (1888) 115 Ind. 62, 7 Am. St. Rep. 409, 17 N. E. 261. The court took the position in the Towles Case that the privilege could be waived only by those who stood in the place of the decedent; and that, when the controversy was among the heirs and devisees, the heirs or devisees who strove to overthrow the will could not, for their own benefit and against the wishes of the heirs or devisees who desired to sustain it, waive the objection to evidence otherwise incompetent, to the detriment of the interest of those who sought to establish the will. But in Studabaker v. Faylor (1912) 52 Ind. App. 171, 98 N. E. 318, the court said it was generally conceded that heirs may waive the privilege; and it was held in this case that, where suit was brought by heirs of a grantor to set aside a conveyance on the ground that at the time the deed was made the grantor was insane, the heirs had waived the privilege of confidential communications between the grantor and her physician, so as to permit the latter to testify as to information gained by him as a physician while treating the grantor. The doctrine that the right of waiver is limited to the patient himself was applied in McCaw v. Turner (1921) 126 Miss. 260, 88 So. 705, in which, under a statute providing in effect that all communications made to a physician by a patient under his charge are privileged, and that such physician should not be required to disclose the same in any legal proceedings, "except at the instance of the patient," it was held that the prohibition of the statute could not be waived by the patient's heirs. To the same effect is Auld v. Cathro (1910) 20 N. D. 461, 32 L.R.A. (N.S.) 71, 128 N. W. 1025, Ann. Cas. 1913A, 90. See this case under I. supra. IV. Necessity of parties uniting in Under the provision of the New York statute that a physician might disclose information obtained in a professional capacity when the statutory prohibition was waived by the personal representatives of the deceased patient, or, if the validity of the will of the patient was in question, by the executor or the surviving husband, widow, or heir, or next of kin of the deceased, or any other party in interest, it has been held that it is not essential to the waiver that all the persons coming within the relations mentioned in the statute should unite in creating it. Re Murphy (1895) 85 Hun, 575, 33 N. Y. Supp. 198. In this case, which was a will contest, it was held that the heirs and next of kin might waive the provisions of the statute against the admissibility of evidence of a physician based on information obtained in a professional capacity, although the evidence offered |