In re Estate of Flint

California Supreme Court Dec 2, 1893 No. No. 15291Published

Before: Garoutte

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Holding. The court held that a physician's testimony regarding a patient's mental condition is privileged and cannot be waived by an heir in a will contest, and that evidence of remote, isolated conduct is inadmissible to prove undue influence. Additionally, the court ruled that evidence regarding the value of a testator's estate is admissible to show mental capacity and the absence of undue influence.

Issues

Whether an heir may waive the physician-patient privilege regarding a deceased testator's mental condition in a will contest.
Whether evidence of a testator's prior illicit relations is admissible to prove undue influence nine years later.
Whether evidence of the value of a testator's estate is admissible to demonstrate mental capacity and lack of undue influence.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The testimony of the doctor that he prescribed for his patient for mental trouble should not have gone to the jury.”

“The amount and condition of the testator’s estate is always an element to be taken into consideration in determining the mental capacity of the testator, and the influences which actuated his mind in disposing of his property.”

Synopsis

Contest of Will—Insanity of Testator—Evidence—Testimony of Attending Physician.—In a proceeding to contest a will for alleged unsoundness of mind of the testator at the time of its execution, testimony of the attending physician of the testator that he prescribed for him for mental trouble is not admissible in evidence.

Id.—-Heirs Cannot Waive Privileged Communications.—An heir of a decedent, who contests the probate of a will with a devisee, is not the representative of the deceased, and cannot waive the privilege attaching to communications from the deceased to his physician.

Id.—Object of Code Provision.—The object of section 1881 of the Code of Civil Procedure, which provides that communications made by a patient to his physician or surgeon are privileged, 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.

Id.—Experts.—Hypothetical Question—Opinion of Attending Physician.—Upon an issue as to the unsoundness of mind of a testator at the time of making his will, testimony of his attending physician, in answer to a hypothetical question as to his opinion, as an expert, of the patient’s mental soundness, based upon a state of facts describing the deceased’s physical condition, as testified to by the doctor himself, is properly admitted in evidence; and the fact that the condition of the patient, as described in the question, was personally known to the witness, is immaterial.

Id.—Undue Influence—Improper Evidence—Action of Wife Before Marriage.—In a contest over the probate of a will, upon the ground of undue influence upon the part of the devisee in procuring the execution of the will, the admission of evidence upon the part of the contestant to prove that the devisee, who was the wife of the decedent, at a time prior to her marriage to him, when he was not divorced from his first wife, accompanied the decedent upon a camping excursion, and was introduced as his wife, is prejudicial error, where it appears that the will was executed nine years after such event, and three years subsequent to his marriage to the devisee, and the isolated event proved does not appear to be connected with the execution of the will by any chain of subsequent events.

Id.—Evidence in Support of Will—Amount and Condition of Estate. Evidence respecting the amount and condition of the estate is admissible in favor of the supporters of a will, in a contest over its probate, upon issues as to' undue influence and mental unsoundness of the testator, for the purpose of showing a fair and reasonable allotment of his property to the parties entitled to his bounty, as indicating mental soundness, and a mind entirely free from all improper influences.

Garoutte, J. A judgment was entered denying probate to a certain instrument claimed to be the last will and testament of William C. Flint, deceased, upon the ground that at the time said instrument was signed the testator was not of sound and disposing mind, and also. that said deceased was unduly influenced in the making thereof. The appellant, Annie Flint, wife of the deceased, made a motion for a new trial, which was denied, and this appeal is prosecuted from the order denying such motion. f

The appeal is based upon certain rulings of the court in the admission and rejection of evidence offered during the progress of the trial. Complaint is also made of certain instructions of law which were given to the jury. The bill of exceptions is a model in its manner of preparation, containing sufficient evidence to fully yet succinctly point the objections made, and being such as is contemplated by the statute, but forming the exception to the general rule of those placed before us.

Dr. McLean, having stated that he was the attending physician of the deceased for several days prior to his death, was allowed to testify, under the objection of appellant, that during his visitations he prescribed for him for mental trouble.

Subdivision 4 of section 1881 of the Code of Civil Procedure provides:

“A licensed physician or surgeon cannot, without the consent of his patient, be examined in a civil action as to any information acquired in attending the patient [395]which was necessary to enable him to prescribe or act for the patient.”

Under this provision the testimony of the doctor that he prescribed for his patient for mental trouble should not have gone to the jury. It came clearly within the scope of the foregoing provision, and it is evident that the patient was not present at the trial to give his consent to its admission. The authorities are uniform upon this question in all those states possessing statutory enactments in any way similar to the one we have quoted. (See Briggs v. Briggs, 20 Mich. 34; Streeter v. City of Breckenridge, 23 Mo. App. 244; Freel v. Market St. Ry. Co., 97 Cal. 40.)

Counsel for respondent concedes the force of the above authorities, and also concedes that the evidence was objectionable- under the provision of our statute, but insists that the privilege may be waived not only by the patient but by his heirs and legal representatives. The child of the deceased is here the contestant of the will, and by offering the evidence of the physician waived othe privilege, provided that under the law of this state the power vested in her to make such waiver. The question of waiver of the privilege by the personal representative or heir of the deceased is a new one in this state, but the statute of New York bearing upon this matter is similar to the provision of our Code of Civil Procedure, and the decisions of the courts of that state furnish us ample light in the form of precedent. The Code of Civil Procedure of New York, section 836, provides that the privilege is present unless “ expressly waived by the patient.” The California provision contains the words “without the consent of his patient.” It will thus be seen that the provisions are in effect the same.

In re Estate of Flint

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