(dissenting):
I think it must be said upon the papers before 'us, for the purposes of this appeal, that the subscribing witnesses to the will were jpersons authorized to practice physio cmd surgery, within the provisions of section 834, Code of Civil Procedure. That fact was settled by the surrogate, so far as this appeal is concerned, by his settlement of the case, and his findings of fact, which respondents can not here question. I am of the opinion, also, that these persons in attending upon deceased, and making the examination they did as to her mental condition, were acting in a professional capacity, and that all the information they had as to her mental capacity, at the time they were used as witnesses on the trial, was acquired by them while making such examination' of deceased as a patient, and which was necessary to enable them to act in such professional capacity.. If this be true, then the prohibition of section 834 (above) applies, unless there had been a waiver on the part of deceased, which ■ enabled the witnesses to testify.
*464It matters not that no prescription was made or intended to be made. The examination was evidently to enable the doctors to' advise as to deceased’s mental capacity to execute the will; nor does it matter that the doctors were called by the attorney and agent of deceased, instead of being called by herself personally. The relation of physician and patient clearly existed. (Grattan v. Ins. Co., 24 Hun, 43; People v. Murphy, 101 N. Y., 126; Renihan v. Dennin, 103 id., 573.) Nor does it matter whether the information acquired was through the medium of conversation or a physical, manual examination, or by observation merely of her appearance and symptoms. However acquired, the information is covered by the provisions of section 834, above. {Grattan v. Ins. Co., 92, N. Y., 287, and cases there cited.) The evidence was, it seems to me, clearly within section 834 (above) and was improperly admitted in proof of the mental capacity of the deceased to make the will, except upon the theory of a waiver of the privilege by deceased under the provisions of section 834 Code Civil Procedure. That section provides, so far as this case is concerned, that section 834 aj>plies to every examination of a person therein described, as a witness, unless the provisions of that section are expressl/y warned by the patient. The waiver must be by the patient, and cannot be by personal representatives after death of the patient. (Westover v. Ætna Life Ins. Co., 99 N. Y., 56.) In view of this decision it would seem difficult to establish an express waiver by a patient after the patient is deceased. The waiver could be made by no one except the patient, if not by the personal representatives of the patient, for the purpose of aiding in the recovery of insurance upon the life of the patient. Eaul, J., in this case, says: “ Whenever the evidence comes within the purview of the statutes, it is absolutely prohibited, and may be objected to by any one unless it be waived by the person for whose benefit and protection the statutes were enacted. After one has gone to his grave, the living are not permitted to impair his fame, and disgrace his memory, by dragging to the light communications and disclosures made under the seal of the statutes. An executor or administrator does not represent the deceased for the purpose of making such a waiver. He represents him simply in reference to rights of property, and not in reference to those rights which pertain to the person and character of the testator.”
*465After the death of the patient, therefore, a waiver can be shown only by showing that the patient made the waiver before death. It is claimed that such a waiver was made by the deceased here when she asked these doctors to become witnesses to her will, and permitted them to be such. That by requesting and permitting them to become such witnesses she waived all objection to their testifying, which could otherwise have been made under section 834 above. This question does not seem to have been passed upon by the courts of this State. The only reference to it in the books seems to be in a note to Renihan v. Dennin, (above, as reported in 18 Abbott’s New Cases, 101), where the following language is used; “ The mere fact of requesting medical mentó attest the will as subscribing witnesses, and their doing so, appears to be as clear á waiver as could be made out without express words of waiver.”
In order to constitute a waiver under such circumstances, certain things would need to appear, and unless they could be assumed or presumed, would need to be proven before the waiver would be established. She must have been in a condition of mind to act in the matter and to comprehend what she was doing. This ordinarily might be presumed, but there seems in such a case as this, to be ah inconsistency in presuming sanity, in order to give effect to her acts as a waiver, and then permit the doctors to swear to the very fact already presumed, to wit, her sanity. It is difficult to see why the sanity should be presumed to establish the waiver any more than it should be presumed to establish the will. The same acts which constitute the making of the will are sought to be made use of to establish a waiver, so as to allow the proof of the will. Then it should appear that she was aware that these men were doctors, and that they had made a professional examination of her for the purpose of ascertaining her condition of mind, and whether she was sane or not. Can these things be presumed % There seems to have been no proof of these things. Even if from the evidence it may be spelled out that she knew they were doctors, there is nothing to show that she was aware any examination as to her sanity was being made or had been made when she requested them, and permitted them to be witnesses to her will. Can it be said the privilege did not exist, unless she knew the examination was being made ? We cannot assent to such a proposition, and certainly she could not be regarded as waiving a *466privilege which, she did not know existed. To illustrate, suppose a patient is examined as to physical infirmities when temporarily unconscious from the effect of disease or narcotics, and does not know of the examination at all. Could she be -said to have no privilege, or by any subsequent acts to have waived the privilege under section 834, which she did not know existed ? Clearly she could not. ■
Then, again, it would need to appear that she understood tne evidence necessary to be given by such witnesses when produced on proof of the will; that is, that they would necessarily be required .to speak of her mental condition, and their opinion in reference thereto founded and based upon the examination made of her before .the execution of the will. "While we might ordinarily presume that a person had knowledge of the law, still we could hardly presume that.a person knew the law to be as above stated, because it is not necessary that the witnessés to a will should give any evidence as to mental capacity of the testator at all. They may be examined upon the,'Subject, and may, though not experts, express an opinion on the subject of mental capacity. (Clapp v. Fullerton, 34 N. Y., 190-195.) And it is the common practice, it may almost be said to be the .uniform practice, to examine them on the subject, but it is not a necessary part of their examination. (Whitfield v. Whitfield, 19 W. D., 386.) Indeed, if the subscribing witnesses are incompetent ■by reason of lunacy, or otherwise, to testify, or have forgotten the .occurrences, or testify against the execution of the will, the will may, nevertheless, be established by other proof. (Code Civil Pro., § 2620.) How, therefore, can it be said, because the testatrix requested these doctors to be witnesses to her w 11, that she necessarily waived the privilege given under section 834, above, so as to enable them to speak as to her mental capacity % How much less can it be said that such request amounted to an express waiver, such as is required by section 836, above, in order to make such witnesses competent to speak of mental capacity ? At most it would amount to no more than an implied waiver. Webster defines express as “directly stated, not implied or left to inference; distinctly and pointedly given; made unambiguous by special intention; clear, plain.” I am of opinion that, upon the evidence in this matter, no express waiver was established so as to make the subscribing wit*467nesses competent to testify as to the mental capacity of the testatrix to make the will. They were competent to testify as to the formal execution of the will, and it is claimed by the respondents, the formal execution of the will having been established, it was unnecessary for the proponents to give any evidence of mental capacity of the testatrix to make a will; that the contestants had the burden of proof of showing incapacity, and ‘as they gave no evidence at all the surrogate might and should presume the existence of mental capacity, and admit the will to probate. I think this will not answer. The Code of Civil Procedure provides (§ 2623): “ If it appearsJ;o the surrogate that the will was duly executed, and that the testator, at the time of executing it, was in all respects competent to make a will, and not under restraint, it must be admitted to probate,” etc. It seems the competency of the testator must be made to appear to the surrogate. Such a provision would hardly be complied with if nothing was shown at all, and the surrogate was left to presume it from the absence of any evidence upon the subject. The cases cited by respondents were none of them matters of proving wills for the purpose of admitting them to probate. Weed v. Insurance Company (35 Supr. Ct, 386), and Coffey v.Insurance Company (44 How. Pr., 481), were actions to recover life insurance where the questions of suicide and insanity were involved. Jackson v. Van Dusen (5 Johns., 144) was an action of ej’ectment. In these cases it was correctly, held sanity was to be presumed as the natural condition of the mind. The statute, however, above referred to did not cover those cases, nor assume to control the trial of actions. The statute relates alone to the admission of wills to probate, and under this statute it has always been held that the proponent of a will must in the first instance give proof of competency to make the will. (Kinsley v. Blanchard, 66 Barb., 317; Harper v. Harper, 1 T. & C., 351, 355.) And it has been held where the question of capacity to make a will is in doubt, where the evidence is equally balanced, the will should be denied probate. (Rollwagen v. Rollwagen, 63 N. Y., 504.) In this case Earl, J., says : “A party who offers an instrument for probate as a will must show satisfactorily that it is the will of the alleged testator, and upon this question he has the burden of proof. If he fails to satisfy the court that the instrument speaks the language and contains the will of the *468testator, probate must be refused. The laws in reference to the distribution of the estates of persons dying intestate, are founded upon principles of public policy and justice, and must regulate the transmission of property unless a person before death has, in the mode prescribed by law, himself provided how his property, after his death, shall be disposed of.” This question, of course, does not arise very often, because, as a matter of fact, the subscribing witnesses are uniformly asked and state as to the mental capacity of the testator. I think the policy of the law is to require affirmative evidence of mental capacity, either by the opinions of witnesses or by proof of circumstances, before admitting a will to probate. In this case there was no competent evidence before the surrogate of the mental capacity of the testatrix to make a will, and, therefore, upon the proofs given, the will was improperly admitted to probate. It is also questionable whether the surrogate should not have required proof of the age of the testatrix, or at least that she was of sufficient age to be competent to make a will under the provisions of the statute. So far as appears she was not twenty-one years or sixteen years of age. If she was not twenty-one years of age she could not devise real estate, and if not sixteen years of age she. could not bequeath personal estate. (3 R. S. [Ith ed.] 2283-2285.) Can age be presumed or must it be proven ? The same section of the Code relates to this question as to the mental capacity of the testator, because, unless of proper age, the testator is not in all respects competent to malee a will. It must appear to the surrogate that such competency exists before the will can be admitted to probate. And there seems to be the same reason, therefore, for requiring the proponent to prove the age as the mental capacity of the testatrix, in order to enable the will to be admitted to probate. This question was plainly raised, and the proponent persistently refused to make the proof. "We have no doubt that the proper proof as to age could have been made, and we think it should have been in order to entitle the will to be admitted to probate.
The decree of the surrogate admitting the will to probate, I think, should be reversed, and a new trial ordered, to-be held before a jury in the circuit of the Supreme Court.
Decree of the surrogate affirmed, with costs.