DISSENTING OPINION
By SHERICK, J.It is with considerable chagrin that I find myself unable to exhibit deference towards my colleagues in the judgment entered, except in respect to the conclusion that proof of the issue of mental capacity was not established by a preponderance of the evidence. The judgment is not sustainable upon that issue.
It is my reluctant purpose to state the reasons within me as to why the judgment of the trial court should not be disturbed. This court disproves thereof upon two grounds: First, in that there is no direct substantive proof of undue influence and, second, because of the rejection of competent testimony offered by the proponent of the will. The latter reason is here first considered.
This court’s majority take the view that the trial court’s rejection of the testimony of Doctors McShane and Scheetz, who attended the testator after the execution of the will, as to his mental capacity, was prejudicially erroneous. That judgment is founded upon authority of Bahl v Bahl, 90 Oh St 129. I do not concur in that the Bahl case is authority for the principal applied. In the report of that case, (Page 139), the fact appears that the physician testifying as to mental condition was an attesting witness to a codicil to the will. In the case at bar neither McShane nor Scheetz were attesting witnesses to the will.
In Swetland v Miles, 101 Oh St 501, those supporting the will offered the scrivener of the will, who was an attorney, for the purpose of relating certain communications made by the testator to him. This evidence was excluded because of the statutory inhibition contained in §11494 GC. Judge Wanamaker, expressing the unanimous conclusion of that court said, after discussing the two exceptions to the rule:
*636“Now it is urged that this court should read into the statute another exception, to-wit, ‘that if the client be dead, her personal representatives or heirs should waive the right for her’.”
“This squarely involves so-called judge-made amendments to legislative acts that are otherwise clear and unmistakable as to meaning. In reason there is much force in the logic of plaintiff in error as to the relevancy of this testimony; but the statute, which is clear and explicit, expressly says that the attorney shall not testify.”
Two later decisions of our Supreme Court are of interest not only for what is said therein, but for the further fact that the Bahl case, supra, is not mentioned. Concerning this right of an attorney testifying it is said in Collins v Collins, 110 Oh St 105, at page 132:
“The question was again before the court for consideration in Knepper v Knepper, 103 Oh St 529, 134 NE 476, wherein the doctrine of Swetland v Miles was adhered to; but an exception was recognized where the attorney is one of the attesting witnesses, it being held that—■
‘When a testator procures his attorney as a subscribing witness to his will he by that act expressly consents that the attorney may testify as fully as any other subscribing witness touching the capacity of the testator or any other fact affecting the validity of the will’.”
Sec 11494 GC places physicians in respect to their patients in the same category with attorneys in respect to their clients as to communications made as being privileged.'
In Ausdenmoore v Holzbach, 89 Oh St 381, the court defines the word “communication” as it is used in §11494 GC, and holds that it “may be not only by word of mouth, but also by exhibiting the body or any part thereof to the physician for his opinion, examination or diagnosis, and that that sort of communication is quite as clearly within the statute as a communication by word of mouth.” Hence it is apparent that a physician’s opinion arrived at by observation of his patient is clearly a privileged communication within the statute, concerning which he may not testify unless one or both of the exceptions to the rule are present. The Ausdenmoore case finds approval in the recent case of Industrial Commission v Belay, 127 Oh St 584.
Two further thoughts: It appeals to me that the rejected testimony was rightly excluded for' the reason that the testator’s mental condition when near unto death is of little moment. The real question was what was his mental condition at or near the time of the will's execution. Second, the members of this court are in accord that the issue of mental capacity was not established by a preponderance of the evidence. Such being true, this medical evidence was but further cumulative proof of the negative of that issue. If its exclusion was erroneous it was hardly prejudicial. It is my notion that the trial court did not err in the rejection of this evidence.
It is proven in this case that the testator was an old man afflicted by some of the ills that flesh is heir to; that he was childish; that he was forgetful and at times would get lost in close proximity to his own home, and would frequently not know his intimate friends or knowing them would not speak to them, even when they were present as guests in his own home. These matters being true, the comment appearing in 41 O. Jur., 355, §146, is appropo:
“No precise quantity of influence can be said to be necessary and sufficient in all cases, as the amount necessarily varies with the circumstances of each case, and especially does it vary accordingly as the strength or weakness of mind of each testator varies, the amount of influence necessary to dominate a mind impaired by age, disease, or dissipation being obviously less that that required to control a strong mind. Thus, soundness and unsoundness of the testator’s mind is an important fact to be considered in determining the question of undue influence. It has been said that a person who was of advanced age, with the natural decay following therefrom, would justify a belief that she might be easily influenced in the execution of her will. Therefore, questions of undue influence are to be submitted to the jury with greater readiness when a testator is shown to have been in a state of physical feebleness or mental weakness when the will was executed.”
It is true that kindness in and of itself is never a ground upon which to predicate undue influence. But kindness may bo purposely self-inflicted upon a potential receiver to the point that it completely monopolizes and dominates the other. The evidence in each particular case must establish or disprove that fact which is one peculiarly within the province of the jury.
It is in evidence that the deceased and his blood relatives were upon the best of terms; that the beneficiary by self appoint*637ment took complete charge oí the decedent; that she excluded his relatives and friends from his home, closed the door in their faces and made the members of V-is family feel that they were not wanted; that when she was present she would not permit even his brothers to be alone with him; that three disinterested witnesses say that the deceased spoke of her as the boss and which Mrs. Olney concedes is true; that she exercised management in his affair's and paid bills and was deferred to, although it is maintained by her that Schurr was able to and did look after his own business; that she caused a companion to return his will to the scrivenor when he became ill; that the testator related to one Isa May Carter, who had been a child in his home, that Mrs. Olney was acting the “hog” with respect to his property, trying to get it all, that he did not know what to do; that he wanted to make a will in favor of the girl who had been a child in his home when he had already made a will; that he could not contend with Mrs. Olney; that he desired to have a Mrs. Hornbeck come into his home and care for him; that Mrs. Olney dominated the funeral, engaged an undertaker without consulting his relatives, and after the funeral was full of glee and bragged to her friend that she was smart and had done well and that she had better hang out a shingle and make it a business of taking care of old men.
If the contestants’ version of this evidence was found credible by the jury, then MErs. Olney’s kindness was self-inflicted. Such a conclusion from these facts, to my notion, is not an unreasonable inference.
This court in the recent case of Helmig, Exr. v Kramer, 48 Oh Ap 71 (76), (17 Abs 41), Judge Hornbeck speaking, points out that:
“In the very nature of things such a claim as undue influence is not ordinarily susceptible of direct proof. It frequently comes from the circumstances and is based upon proper inferences.”
I cannot agree with my associates in that there is no direct substantive evidence in this record supporting the claim of undue influence. The testimony of Isa May Carter relates certain circumstances as to the recipient’s conduct, which if believed by the jury, as they do doubt were as evidenced by the verdict, are proof of an independent fact upon which a very reasonable inference that Mrs. Olney expressed unholy glee upon the accomplishment of the purpose of her prior machinations at an unseemly time and when ordinarily she should have no knowledge of the will’s contents.
It 'is reasoned that the testator’s declaration are not substantive upon the issue of undue influence. I have no quarrel with the rule stated in 79 A.L.R. 1449, or Van Demark v Tompkins, 121 Oh St 129, but would suggest that such were admissible and competent upon the issue of mental capacity. The proponents of the will did not attempt to limit their application to the issue of mental capacity. It has always been my understanding that proof of an issue may be made by evidence, relevant to the issue, but which may be incompetent in character, such as hearsay evidence, if the same is not objected to or otherwise excluded by the trial court. This court is not importuned to assist the plaintiff in error in the trial of her case. That is to take out of the mind of the jurors that which was permitted to go to them in proof of the issues presented without limitation. I do not understand it to be a court’s duty to aid one litigant at the expense of his adversary. The declarations of the testator, with respect to the issue of undue influence were purely hearsay, unobjected to or limited in their application and are substantive proof of the issues made. May I further point out that nc motion was made to expunge this testimony from the record, or motion made for independent judgment upon the issue of mental capacity. The motion for an instructed verdict was general and not specific.
The author on Wills, 41 O. Jur., §353, states the Ohio rule on the inadmissibility of the testator’s declarations as substantive proof of the fact of undue influence. He, however, concludes with this statement:
“But where no request is made of the court to limit the purpose for which such evidence is admitted, its admission is not prejudicial error.”
This is the holding in Swin v Knepper, 1 Abs 703. It is but recognition of the well-established rule that in competent but relevant evidence, if unobjeefced to, is substantive proof of the issues made.
To my notion the verdict and the judgment entered thereon may only be attacked upon the theory that such .is against the manifest weight of the evidence. It is my conclusion that that attack has been unsuccessful and the judgment should have, therefore, been affirmed.