(dissenting).
I dissent. I do not agree with the conclusion of the majority that the evidence is sufficient to sustain the verdict of the jury.
It is well settled in this state that on an appeal from a judgment notwithstanding the verdict the question before this court is whether the evidence is sufficient to sustain the verdict. In re Hendricks’ Estate, 110 N.W.2d 417 (N.D.1961); Stormon v. Weiss, 65 N.W.2d 475 (N.D.1954); Keller v. Reichert, 49 N.D. 74, 189 N.W. 690 (1922).
The first family established the execution of the will by the two subscribing witnesses, Mr. Depuy and Mr. McEnroe, who were the only persons present at the time, who testified that the testator, Louis Lembke, executed the will. Mr. DePuy testified that he had sufficient mental capacity to make a will, to know the disposition he was making of his property and the beneficiaries thereof, and that “the testator was entirely competent, fully understood everything that transpired and what he was doing with reference to his property.”
The burden was on the first family to establish the execution of the will in the manner prescribed by statute. This burden was met by the testimony of the subscribing witnesses. The second family challenge the validity of the will upon the ground of the lack of competency of the testator to make a will. They had the burden to sustain this challenge by competent evidence that at the time the will was made Mr. Lembke did not have testamentary capacity. Stormon v. Weiss, supra.
It is the settled law in this state that where a will is contested on the grounds that the testator did not have sufficient mental capacity to make a will the con*850testant has the burden of establishing by competent evidence that at the time the will was made the testator did not have testamentary capacity. Stormon v. Weiss, supra.
We have also said that there is a presumption that a testator was sane at the time of the execution of his will until the contrary appears by competent proof. Kingdon v. Sybrant, 158 N.W.2d 863 (N.D.1968).
The question as to the mental competency of the testator to make a will should be determined as of the time of the execution of the will.
“The critical inquiry in determining testator’s mental capacity to execute a will is directed to his condition of mind at the very time he signed the will and evidence of his previous or subsequent conduct is admissible only so far as it may throw light on his mental condition at the precise moment that the will was signed.” Stormon v. Weiss, N.D., 65 N.W.2d 475, 608.
Bender v. Bender, 72 N.W.2d 220, 223 (N.D.1955).
The second family have not met their burden of establishing by competent evidence that at the precise moment the will was signed the testator did not have testamentary capacity. The second family have not overcome the fundamental principle that sanity and testamentary capacity are presumed.
The court should not have permitted Dr. Meredith to testify as to the competency of Louis Lembke to make a will under subsection 3 of § 31-01-06, North Dakota Century Code. Without the testimony of Dr. Meredith the evidence may be insufficient to sustain the verdict, and if so the motion of the first family for judgment notwithstanding the verdict should have been granted by the trial court, except that there was other testimony relating to the testamentary capacity of the testator, and as we cannot speculate on what testimony the jury based its verdict a new trial should be granted.
The first family objected to the testimony of Dr. Meredith on the grounds that his testimony was inadmissible. They contend that his testimony consisted of information acquired by Dr. Meredith while attending the testator, Louis Lembke, as his physician, and, therefore, such testimony was privileged and should have been excluded under the provisions of § 31-01-06(3), N.D. C.C., as amended by chapter 230, § 1 of the 1965 Session Laws, which reads as follows:
A person cannot be examined as a witness in the following cases:
***** *
3. A physician or surgeon, without the consent of his patient, cannot be examined as to any information acquired in attending the patient or as to any communication made by the patient to him in the course of professional employment;
The original statute read as follows:
A person cannot be examined as a witness in the following cases:
***** *
3. A physician or surgeon, without the consent of his patient, cannot be examined as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient;
North Dakota Century Code § 31-01-06 (3) (Parent Volume).
Although the amended statute has not been before this court, the original statute has been fruitful of some litigation. Questions as to the construction and effect of the original statute had arisen in several cases before the enactment of chapter 230, § 1, Session Laws 1965.
In State v. Werner, 16 N.D. 83, 112 N.W. 60 (1907), we held that the statements made by the defendant to the physician in the presence of a third person, who was competent to testify thereto, were not privileged *851under the statute and the physician could be examined as to the conversation.
In Auld v. Cathro, 20 N.D. 461, 128 N.W. 1025, 32 L.R.A.,N.S., 71 (1910), it was held that all information acquired by the physician from a patient in attending- the patient professionally comes within the privilege, regardless whether or not such information was necessary to enable the physician to prescribe or act for the patient, and that such evidence was inadmissible as “the privilege is personal with the patient, that it applies in testamentary matters, and cannot be waived by the heirs and personal representatives.”
In Booren v. McWilliams, 26 N.D. 558, 145 N.W. 410 (1914), the statement or communication made to the physician after the patient’s confinement, was held not within the privilege as this information was not necessary to enable the physician to prescribe or act for her. The court indicated that the privilege extended only to those communications necessary to enable the physician to prescribe for the patient.
In State v. Moore, 52 N.D. 633, 204 N.W. 341 (1924), the information acquired by the physician in examining a prisoner in the custody of the sheriff, such examination having been requested by the sheriff, was held to be privileged.
In Meyer v. Russell, 55 N.D. 546, 214 N.W. 857 (1927), any information which the physician acquired while treating the patient, even though such communication or information was not necessary to enable the physician to prescribe or act for the patient, was held to be privileged, and only the patient could waive the privilege.
In McDonnell v. Monteith, 59 N.D. 750, 231 N.W. 854 (1930), the plaintiff, by examining his physician as his witness as to his diagnosis and treatment of the injury to his arm and the result of such treatment, waived the privilege.
In Stormon v. Weiss, 65 N.W.2d 475 (N.D.1954), the attending physician who subscribed to the will as a witness at the request of the testatrix was permitted to testify “the same as any other subscribing witness,” the court saying that the testatrix waived the restrictions on the competency of the physician to testify as a witness by her request that the physician witness her will and who did subscribe to the will as a witness.
This review of these cases discloses that this court in construing the original statute generally has held that any information given or communication made to a physician by the patient or acquired by the physician in attending the patient was privileged, and the testimony of the physician relating to such information or communication was properly excluded, and that the privilege was personal with the patient and could be waived only by him during his lifetime, and after his death the right to waive terminated and could not be exercised by others. In the following cases the physician was permitted to testify, as the court was of the opinion that the information was not privileged because of the peculiar circumstances in each case or had been waived by the patient: In State v. Werner, where the statements of the defendant to the physician were made in the presence of a third person, who would have been competent to testify to the statement; in Booren v. McWilliams, where the information was acquired after the time it was necessary for the physician to treat the plaintiff; in McDonnell v. Monteith, where the plaintiff waived the privilege by calling the physician as his witness and examining him as to the nature of his injuries; and in Stormon v. Weiss, where the testatrix waived the privilege by requesting the attending physician to witness her will, and who did subscribe to the will as a witness, the physician was permitted to testify as a subscribing witness, the court indicating that the physician would not have been competent to testify if he had not been a subscribing witness.
There is no complaint that these former decisions were not carefully considered or that the conclusions were arrived at without *852the full expression of reason. Only one inference can be drawn from a review of the former decisions announced by this court, and that inference is that they were arrived at after deliberate, thorough deliberation. The decisions heretofore rendered by this court were reasoned conclusions backed by authority and considered with care. No cogent reason has been presented sustaining the first family’s conclusion that the former decisions were erroneous.
This court, in Auld v. Cathro, thoroughly considered the contention that the rule permitting the personal representative or heirs or legatees or those who succeeded to the estate in will matters to waive the privilege as it related to testimony of the attorneys as to the very transaction of preparing the will be made applicable in the case of physicians, and after such thorough and deliberate consideration declined to accord the rule as to attorneys to physicians, and quoted from In re Hunt’s Will, 122 Wis. 460, 100 N.W. 874:
Whether this last idea may be correct as to communications to attorneys with reference to property transactions, it certainly is not true with reference to the sheltering of information acquired by attending physicians. The purpose of that statute is personal. It is to protect the patient himself from disgrace or chagrin. Its effect on property rights or estate is only incidental. [Citations omitted.] Such reasons do not cease upon the death of the patient.
Auld v. Cathro, 20 N.D. 461, 128 N.W. 1025, 1030, 32 L.R.A.,N.S., 71 (1910).
It is a settled rule of statutory construction that when a statute or a clause or provision thereof has been construed by a court of last resort, and the same is substantially reenacted, the legislature may be regarded as adopting such construction. 50 Am.Jur. Statutes, § 442 (1944).
The rule is well settled that “where a statute which has been construed by the courts of last resort has been reenacted in the same, or substantially the same, terms the legislature is presumed to have been familiar with its construction and to have adopted it as a part of the law, unless a contrary intent clearly appears, or a different construction is expressly provided for.” 59 C.J. pp. 1061, 1963.
State ex rel. Johnson v. Broderick, 75 N.D. 340, 27 N.W.2d 849, 866 (1947).
The amended statute does not indicate that a contrary intent or a different construction is expressly provided for in the amendment. On the contrary, the phrase “without the consent of the patient” has been carried into the amended statute without change.
The legislature, at the time of the adoption of the 1965 amendment, presumably was familiar with the prior judicial construction placed upon § 31-01-06(3) ’ in Auld v. Cathro and intended that the statute should be likewise construed subsequent to the amendment. Lapland v. Stearns, 79 N.D. 62, 54 N.W.2d 748 (1952); State v. Broderick, supra.
That the legislature amended § 31-01-06 (3) without any change in the phrase “without the consent of the patient” clearly indicates the intention of the legislature to adopt the construction placed by this court upon that phrase in Auld v. Cathro as to who may waive the privilege, and particularly so when the legislature in the same amendment adopted the construction in Auld v. Cathro as to what communications were confidential.
The interpretation, in Auld v. Cathro by our court has been adhered to in several subsequent cases, including the recent case of Stormon v. Weiss, 65 N.W.2d 475, wherein a physician was permitted to testify, as a subscribing witness, a.cer death, when the testatrix requested the physician to witness her will, and the physician did subscribe the will, this court held that the testatrix thereby waived the restriction on the competency of the physician as a witness. The court therein indicated that otherwise the attending physician would not have been a competent witness to testify.
*853And in Meyer v. Russell, 55 N.D. 546, 214 N.W. 857 (1927), the exclusion by the trial court of the testimony of the attending physician of the deceased grantor regarding her competency to execute a deed was approved by this court.
There is nothing in the amended statute to indicate that the legislature intended any different meaning to the phrase “without the consent of the patient” than as construed by this court in Auld v. Cathro as to who may waive the privilege, and this court subsequently, in Meyer v. Russell, and in Stormon v. Weiss, adhered to the principle that only the patient himself may waive the privilege, and that it cannot be waived by others.
In support of the rule that the privilege cannot be waived by others we quoted with approval in Auld v. Cathro, supra, 128 N.W. at p. 1029, from In re Hunt’s Will, 122 Wis. 460, 100 N.W. 874:
“Further, and more important to the present controversy, we have held that the privilege is created for the protection of the patient, and is personal to him; and have in the plainest terms repudiated the doctrine supported by some authority elsewhere that others can in any degree waive the privilege. * * * ”
We have said many times that this court cannot legislate; we cannot change statutory law by judicial decision. If there are any changes to be made in the statute, that is a matter to be left to the legislature, as it is for the legislature to determine policy, not for the courts.
As said by Mr. Justice Strutz in Fetzer v. Minot Park District, 138 N.W.2d 601, 604 (N.D.1965):
The courts cannot legislate, regardless of how much we might desire to do so. Therefore, regardless of how worthy a claim against a municipal corporation might be, we cannot assume the functions of the Legislative Assembly. Our power is limited to passing on laws enacted by the Legislature, and, if the Legislature fails to act, we cannot change the law by judicial decision. The question here presented is one that should be addressed to the Legislative Assembly, and not to the courts. As was said by the Honorable A. M. Christianson, in his concurring opinion to Anderson v. Board of Education of City of Fargo, 49 N.D. 181, 190 N.W. 807:
“If the rule is wrong, the Legislature has ample power to change it. It is the duty of the courts to enforce the law as it exists.”
In Portland Credit Union v. Hauge, 169 N.W.2d 106 (N.D.1969), Mr. Justice Strutz, speaking for this Court, said at Syllabus 2:
The construction of a statute by the courts supported by long acquiescence on the part of the Legislative Assembly, or by the failure of the Legislature to amend the law, is evidence that such construction is in accordance with legislative intent.
Mr. Justice Strutz cited in support thereof Kline v. Landeis, 147 N.W.2d 897, 902 (N.D.1966), where Mr. Justice Erickstad, speaking for this Court said:
The legislature, in failing to amend the statute in light of the court’s construction, has acquiesced in that construction, and thus has indicated that the construction is in accord with legislative intent.
See also, Public Service Commission v. City of Williston, 160 N.W.2d 534 (N.D. 1968) ; Regent Co-op. Equity Exch. v. Johnston’s Fuel Liners, 122 N.W.2d 151 (N.D. 1963); Lapland v. Stearns, 79 N.D. 62, 54 N.W.2d 748 (1952); State ex rel. Johnson v. Broderick, 75 N.D. 340, 27 N.W.2d 849 (1947); Taylor v. McCarty, 68 S.D. 510, 4 N.W.2d 816 (1942); In re Gooder’s Estate, 68 S.D. 415, 3 N.W.2d 478 (1942).
The South Dakota Supreme Court in a recent case said that the statute providing for the physician-patient privilege is to be liberally construed in favor of the patient and concluded that any changes in the statute should be made by the legislature, and not by judicial decision.
*854We realize that the privilege statute and its liberal construction have been severely criticized by eminent legal writers. See Wigmore, Evidence, McNaughton Rev. 2380(a) and McCormick on Evidence, § 108. Their views are urged and relied on by the defendants. However, with us these are matters of legislative mandate. See Marfia v. Great Northern Ry. Co., 124 Minn. 466, 145 N.W. 385. Accordingly we are not free to mold our law to their views.
Hogue v. Massa, 80 S.D. 319, 123 N.W. 2d 131, 135, 5 A.L.R.3d 1236 (1963).
And the South Dakota Supreme Court has said that where a judicial interpretation of a statute has been adopted by the legislature through reenactment of the statute, the supreme court could not reconsider its construction. Taylor v. McCarty, 68 S.D. 510, 4 N.W.2d 816 (1942).
The general rule is that nothing may be read into a statute which is not within the manifest intention of the legislature as gathered from the act itself, and that a statute should not be construed any more broadly or given any greater effect than its terms require. Where the language of the statute is clear in limiting its application to a particular class of cases and leaves no room for doubt as to the intention of the legislature, there is no authority to transcend or add to the statute which may not be enlarged, stretched, or expanded, or extended to cognate or related cases not falling within its provisions. 50 Am. Jur. Statutes § 229 (1944).
Here, I repeat, the legislature has amended § 31-01-06(3), N.D.C.C., having in mind the previous decisions of this court on not only what information may be privileged, but also as to who may waive the privilege after the death of the patient, and the legislature has seen fit not to enlarge the statutory provision that the privilege may he waived only by the patient to permit others to waive the privilege in certain cases.
While we should not be as robots in our deliberations and in the application of the rules of law in each case, nevertheless we ought not to pick and choose such rules as may fit our whim and fancy, even at the risk of being categorized as doing our work by a computer when we adhere to prior construction of statutes. We ought not to exercise that judicial license whereby the rules are changed during the course of the litigation without notice, to the end that neither the litigants, nor the lawyers, nor even the judges of our courts, know what rules ought to be applied from day to day. Surely there ought to be some stability in the rules upon which we could depend. We should not depart from the settled construction of the language of a statute in the absence of cogent reasons for making the change.
The majority give as their reason for departing from the settled construction of the statute “that justice will be more apt to result from such waiver, because it will aid in reaching the truth as to the existence of testamentary capacity.”
If such be the reason for permitting others to waive the privilege after the death of the patient, would not the same reason be sufficient to permit others to waive the privilege during the lifetime of the patient — if seeking the truth be the purpose of the testimony — and thereby emasculate the statute. If the principle of seeking the truth is to govern the admissibility of evidence could it be carried so far as to supersede the constitutional and statutory provisions relating to self-incrimination and illegal search and seizure? Of course, such principle cannot prevail over these constitutional and statutory provisions, and ought not to prevail here against the plain words of the statute.
The majority, in further support of their decision to overrule Auld v. Cathro, state that in at least two instances last year this Court found it necessary to overrule prior decisions of this Court, and refer to Iverson v. Lancaster, 158 N.W.2d 507 (N.D. *8551968), overruling Hunder v. Rindlaub, 61 N.D. 389, 237 N.W. 915, 931; and in Melland v. Johanneson, 160 N.W.2d 107 (N.D.1968), overruling Lindberg v. Benson, 70 N.W.2d 42 (N.D.1955). The court went on to say this was done, however, only after very careful consideration of the common law in the first instance, and of constitutional law in the second instance. That we have heretofore reversed former decisions is not a cogent reason for overruling Auld v. Cathro.
Upon a review of the Iverson case, after an analysis of several cases, we said:
As our analysis of the trend of the law may have indicated, we are now convinced tht it is timely and proper, in light of the adoption of N.D.R.Civ.P. 43 (b) that our decision in Hunder v. Rind-laub be overruled.
It is interesting to note that our decision in Iverson to overrule Hunder v. Rindlaub is supported by Rule 43(b), which rule was not in effect at the time Hunder v. Rindlaub was decided by this court. The ruling in Hunder v. Rindlaub was based on § 7870, Compiled Laws of 1913, which statute has now been superseded by Rule 43 (b) of the North Dakota Rules of Civil Procedure.
It is not necessary to go into an analysis of the differences between § 7870 and Rule 43(b), except to state that under Rule 43 (b) a party may call an adverse party and “interrogate him by leading questions and contradict and impeach him,” whereas § 7870 uses general language to the effect that the examination may be made “as if under cross-examination.”
In Iverson v. Lancaster we quoted from State ex rel. Miles v. Brainin, 224 Md. 156, 167 A.2d 117, 120, 88 A.L.R.2d 1178 (1961), where the Maryland statute was similar to our Rule 43(b), and we said, quoting the Maryland court:
That this is the case is further buttressed by the striking similarity between the provisions of our statute and Rule 43(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. Under that rule, in cases involving pretrial depositions, the federal cases require the deponent to answer questions involving expert testimony. See Russo v. Merck & Co., D.C.R.I.1957, 21 F.R.D. 237 and Broadway & Ninety-Sixth Street Realty Company v. Loew’s, Inc., D.C.S.D.N.Y.1958, 21 F.R.D. 347.
It is apparent, therefore, that the decision in Iverson v. Lancaster overruling Hunder v. Rindlaub was founded on Rule 43(b) under the construction of that Rule by the federal courts. I have carefully read Iverson v. Lancaster and I can find therein no reference to the application of the common law to that decision of our court.
While in Melland we did flatly reverse the Lindberg case by holding that a classification within a class was discriminatory and therefore the initiated measure must fall as being in contravention of §§ 11 and 20 of the North Dakota Constitution and § 1 of the Fourteenth Amendment to the United States Constitution as a denial of equal protection of the laws, we must remember that in the Lindberg case the initiated measure was upheld as constitutional by a 3 to 2 decision, wherein the dissenting judges argued that the constitutional measure was unconstitutional for largely the same reasons we set forth in Melland in holding the initiated measure unconstitutional. And to support our opinion in Mel-land we referred to chapter 54-44, North Dakota Century Code, establishing the Department of Accounts and Purchases providing for competitive bids for purchases made by the State through the Department of Accounts and Purchases, wherein we said :
These newer statutes serve, not only to further protect the public interest, but, in the instant case, to obviate the reasoning which may have previously supported this court in sustaining the highly discriminatory classifications which we *856have today found unreasonable and thus invidious.
Melland v. Johanneson, 160 N.W.2d 107, 116 (N.D.1968).
In each of the cases cited as examples of instances when we have reversed former decisions of this court we have in support of such reversal referred to some statutory change. And we might say generally that because this court has heretofore reversed itself on several occasions is not sound reason for the reversal of a former decision as in this case there is no precedent upon which we can found such reversal.
I agree with the opinion of this court in In re Graf’s Estate that an attorney is competent to testify as to confidential communications after the client’s death in litigation in will matters between parties all of whom claim under the client, as that was an exception to the rule of law recognized at common law, but I am unable to agree that that case supports the second family’s position in this case where we are concerned with confidential communications between physician and patient. The privilege as to communication between physician and patient was created by statute, and was not known at common law.
At common law there was no privilege as to communications between physician and patient, and this rule still prevails where not changed by statute * * *. The privilege exists only in accordance with, and to the extent allowed by, statute. Such statutory privilege is one which the legislature may modify, limit, or abolish in whole or in part, but the courts may not do so, except as power may be conferred on them by the legislature.
97 C.J.S. Witnesses §§ 293, 824-825 (1957).
The authorities are not in accord on the question whether the physician-patient privilege may be waived by a personal representative or by the heirs of a decedent in will matters. There is some difference in the authority even where the statutes are similar, and some of the divergent views may be explained by a difference in the statutes of the various states. The cases on the question of waiver of the privilege after the patient’s death are discussed in the annotations in 31 A.L.R. 167, 126 A. L.R. 380, and, more recently, in 97 A.L.R. 2d 394. A review of the cases in those annotations discloses that the cases are in hopeless conflict on the question of waiver, probably because of the difference in the statutes providing for exceptions to the rule permitting either the personal representative, or the heirs, or the beneficiaries of life insurance policies, to waive the privilege in certain cases. Whether there is a majority, or a modern, or an enlightened rule is a matter of conjecture upon which we ought not to render our decisions.
I would set aside the judgment and remand this case for a new trial. There was other evidence relating to the testamentary capacity of the testator and we cannot tell which testimony the jury considered in reaching its verdict.