The ruling of the surrogate admitting that portion of the inquisition finding Preston incompetent for more than a year prior to the time it was'taken, was erroneous.
Section 2335 of the Code of Civil Procedure expressly limited and confined the inquiry as to the competency of Preston to the time of the liéaring," which was December 6, 7 and 8, 1904. It is immaterial that the petition upon which the proceeding was instituted omitted the word “ lunacy,” and alleged incompetency arising from old age, loss of memory and understanding as its basis, as the word “ lunacy ” as used in section 2335 of the Code, under the provisions of section 7 of the Statutory Construction Law (Laws of 1892, chap. 677), evidences all phases of alleged incompetency, except idiocy, including imbecility arising from old age and loss of memory or understanding. (Matter of Schrodt, 32 Misc. Rep. 540 ; Matter of Clark, 57 App. Div. 5.)
The evidence of Dr. Loper was also incompetent under the provisions of section 834 of the Code of Civil Procedure. Under this section it has been held that a physician cannot testify as to the previous condition of á person, whose knowledge was acquired while attending such person (Barker v. Canard Steamship Co., 91 Hun, 495 ; affd. without opinion in 157 N. Y. 693); and that information of the existence of an ailment, although not the subject *736of the physician’s attendance or treatment, acquired through examination of the patient in 'attending him in a professional- capacity, is privileged (Nelson v. Village of Oneida,156 N. Y. 219); and that -upon the prohate of a will the testimony of a physician who attended Upon the testator in a. professional capacity is not Competent upon the question of mental capacity. (Matter of Coleman, 111 U. Y-. 220.)
■ The objections to the evidence were sufficiently definite* and there is no suggestion of any waiver under which .the evidence objected to was made competent. The ruling of the learned surrqgate that the burden of proof was by the inquisition shifted tó proponent,, was also erroneous. At common law and under our statutes the presumption is that every man is compos mentis at the time, of performance of the act challenged.; the burden of proving 'that he was non compos mentis rests from beginning to end of the inquiry upon the party who alleges an unnatural condition of mind existing in the testator. “ Tie who sets Up the- fapt that the testator was non ' compos mentis, must prove it.” (Delafield v. Parish, N. Y. 9.)
' >In his opinion the learned surrogate says: “ This inquisition was concurred in by the commissioner and was' confirmed by an order of the Supreme Court dated December 31st, 1904," in and by which a ■committee of the person and estate of the deceased was' duly appointed. The finding of this jury, concurred in by the Commissioner in the proceedings de lunático inguirendo, is not .only presumptive evidence of the testamentary incapacity of the decedent, but is' conclusive upon .the subject, until Overcome by satisfactory evidence. (Matter of Widmayer, 74 App. Div. 336, citing Matter of Coe, 47 App. Div. .177 ; Matter of Clarke, 57 App. Div. 5 ; Underhill on Wills, Sec. 99.) And on the authority of Wads worth against Sharpsteen,8 N. Y. 395, ‘ the cases do not make any distinction where the act is overreached by the inquisition, whether it was committed before or after the time that the inquisitionwas found. There can'he no difference in principle between the two cases.’ This, then, .is the situation., A jury having found that the.decedent was incompetent to take charge of his property and 'manage his affairs, and it appearing that tlie alleged will was made intermediate - such finding and the. institution of the proceedings de lunático, inguirendo, a legal presumption exists which.is binding upon the Surrogate, until overcome by proof, that the decedent w.as incom?' *737petent to make a will at the time that this'will purports to have, been made. (Matter of Widmayer, supra.) * * *' I-think proponents have signally failed to ■ meet the' presumption against the" competency of this testator following tire inquisition and- its confirmation.”
Wadsworth v. Sharpsteen (supra), cited as an - authority, was-decided twenty-one years before the section of the Code in question was enacted, and he quotes from the dissenting opinion.
Neither in that case or in Matter of Widmayer or Matter of Coe, also cited, was the question involved in this proceeding*' considered or determined. The’ act of the incompetent challenged in each case was done after the inquisition, arid- not several months before, as in the case at bar. The cases relied on do notSupportthe views of - the learned surrogate; nor does Hughes v. Jones (116 N. Y. 67), cited by the respondents, in which the commission.was-issued October 18, and inquisition tiled November 13-, 1871, more than 'two years before the amendatory statute first prohibiting -retrospective findings was enacted, and at a time when such findings were authorized by the existing law. . ■
The opinion next asserts: “Nor is this all. Certain direct, positive and wholly reliable testimony has been offered in this proceeding as to the mental condition of this decedent that had no- place before the jury in this inquiry. In the lunacy proceedings the lips of the one man whose opportunities to observe were the best, and whose deductions from observed facts Were the- most- reliable" aird trustworthy,, were fast sealed. Dr. Arthur 0. Loper then testified upon a hypothetical state of facts only, just as some other physician did. But now the seal of professional privilege is brolien and he testifies from hnowledge gained in his capacity as a physician in constant attendance upon the decedent xop to the fall of 1903 that the decedent ivas then incompetent, and was so on March 26th, 1904.” It is obvious from his opinion that the learned surrogate regarded himself concluded by the findings .contained in the inquisition. The only evidence outside of that afforded by the inquisition and order of confirmation, which he seems to have taken into consideration^ -was the incompetent evidence of Dr. Loper, which he holds fortifies and strengthens the presumption he concluded lie was bound'by. Eliminating the incompetent evidence and giving careful consid*738eration to that remaining, I am not clear but that the weight of evidence was in favor of the proponent and that the will should Rave been admitted to probate. It follows, therefore, that the decree .must be reversed, both upon questions of law and fact, costs to abide the event, payable out of the estáte, and the following ques- ■ tions of fact sent to a jury for determination : ¡
■ '.First. Was the alleged testator competent to make a last will and testament at the time the will proposed for probate is alleged to have been executed ?
. Second:- Was such will, if executed,.the free and voluntary act of the decedent? •
Third:- Was the will offered for probate signed and duly executed by decedent? ,
Hirschberg, P: J., Woodward, Jenks and Miller, JJ., concurred. . -
Decree of the Surrogate’s Court of Suffolk county reversed upon question's of law and fact, and questions ordered to- be submitted to a jury for determination, costs to abide the event, payable out of the estate. • -