New York County NyArchives Court.....Darragh, Catherine, Matter Of Probate 1889
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/ny/nyfiles.htm
************************************************
File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 2, 2008, 2:14 pm

Source: Reports Of Cases - New York
Written: 1889

First Department, May Term, 1889.

*In the Matter of the Probate of the Last Will and Testament of CATHARINE 
DARRAGH, Deceased.

Physician — competency of, to testify as to the testamentary capacity of a 
decedent — what information obtained by him may not be used.

Upon the hearing before a surrogate, upon an application to admit to probate the 
will of Catharine Darragh, deceased, objections were raised upon the ground of a 
want of testamentary capacity upon the part of the testatrix. It appeared that 
the physician, who had at one time attended the deceased in a professional 
capacity, had thereafter for a considerable period visited her as a friend and 
not in a professional capacity, and the evidence showed that the impressions 
which he gained upon these friendly visits necessarily related back to, and were 
influenced by, the knowledge which he had acquired during the time that he was 
attending her professionally.

Held, that it was not necessary to establish that the knowledge which he had 
acquired in respect to his patient, while he was attending her professionally, 
was necessary to enable him to prescribe for her; that it was only necessary, in 
order to preclude him from testifying, to show that he had obtained the 
information during the course of his professional visits.

The intention of the prohibition was to protect all communications made by a 
patient to her physician, which the patient supposed, or had reason to believe, 
were protected by the provisions of the law.

* Decided March Term, 1889.

A physician, who had been employed by and rendered services to the deceased 
prior to her death, which occurred in November, 1886, paid two visits to her in 
January, 1886, which, it was claimed, were not professional visits.

He was then asked, and allowed to answer, against the objections of the 
contestant, this question: "Now, as the result of what you saw and heard on 
these two occasions, in January, and subsequently in the year 1886, would you 
say that Mrs. Darragh was in a condition to understand the nature of a will or 
the disposition of property, or had the ability to make a contract 
intelligently?"

Held, as the question was not restricted to the interviews which took place in 
January, but embraced all the time subsequent thereto up to the time of her 
death, and as, during this subsequent time, the physician was undoubtedly 
attending the testatrix in a professional capacity, that it was error to receive 
this testimony.

Appeal from a decree made by the Surrogate's Court of the county of New York, 
admitting the last will and testament of Catharine Darragh, deceased, to 
probate, which was entered in the office of the clerk of the said Surrogate's 
Court on the 14th day of May, 1888.

Alexander Thain, for the appellant. 
James P. Campbell, for the executors, respondents. 
W. N. R. Alcott, guardian ad litem.

Van Brunt, P. J.:

Among the objections raised to the admission of the will in question to probate 
was the want of testamentary capacity upon the part of the testatrix.

It appears from the evidence in this case that she had been attended by various 
physicians for a considerable period of time prior to her decease, and that 
attempts were made upon both sides to avail themselves of the evidence of these 
physicians. The learned surrogate applying the rule, which now seems to be well 
settled, in reference to the disclosure of information acquired by physicians in 
respect to their patients while attending them in a professional capacity, 
excluded from consideration the evidence of a physician which was offered upon 
the part of the contestant. The ruling of the learned surrogate was, beyond 
question, correct in this regard. It appeared that the physician in question had 
attended the deceased in a professional capacity, and that, although for a 
considerable period, he had visited her as a friend, and not in a professional 
capacity, the evidence showed that the impressions which he gained upon these 
friendly visits necessarily related back to and were influenced by the knowledge 
which he had acquired during the time that he was attending her professionally.

It is urged, upon the part of the appellant, that it was not shown that the 
knowledge which he had acquired in respect to his patient by the physician, 
while he was attending her, was necessary to enable him to prescribe for her. 
But it seems to us, in view of the rule laid down by the Court of Appeals in 
construing the statute prohibiting the disclosure by physicians of the 
information they have received in respect to the condition of their patients, 
that it was not necessary that this should be established, and all that it was 
necessary to establish in order to preclude the physician from testifying was 
that he had obtained the information during the course of his professional 
employment. And this is the only reasonable construction to be placed upon the 
statute, because, otherwise, it is placing it within the physician's power to 
violate the statute at will. 

The information which the physician receives by his eyes, by his ears and by his 
touch, is in the course of his professional employment, and it may or may not be 
necessary for the purpose of prescribing; and this necessity may only be 
disclosed by the very fact of the imparting of the information, and, therefore, 
although information of this character may be communicated, supposedly, under 
the safeguards thrown around such communications by the law, yet it may turn out 
that such disclosure was not necessary to enable the physician to act in a 
professional capacity; but this could only be ascertained after the disclosure 
had been made. It is so difficult to draw the line that it is certainly best to 
err upon the side of safety, and shut the door against all disclosures of 
information acquired by a physician in attending a patient in a professional 
capacity, without requiring absolute proof that such information was necessary 
to enable him to act in that capacity.

The intention evidently was to protect all communications made by a patient to 
his physician which the patient supposed, or had reason to believe, were 
protected by the provisions of the law. This seems to be the construction of 
this section adopted by the highest court, and that it is the one which accords 
best with the evident policy of the law is manifested by the restriction which 
it has thrown around the disclosures to attorneys and priests. Therefore, in the 
case at bar, this physician being unable to separate the knowledge which he had 
acquired as a physician, or while attending her in a professional capacity, from 
the knowledge which he acquired when paying her a friendly visit, it is clear 
that his testimony was properly rejected.

The same rule excludes the testimony offered by the physician who was examined 
upon the part of the respondent. It appeared from the evidence that he was 
employed as the physician of the deceased. It is not distinctly shown when such 
employment commenced, but it is apparent from the evidence that such employment 
commenced and such services were rendered prior to the death of the deceased. 
This witness it appears had paid two visits to the deceased in January, 1886, 
which it is claimed were not professional. He was asked this question: "Now, as 
the result of what you saw and heard on these two occasions in January, and 
subsequently in the year 1886, would you say that Mrs. Darragh was in a 
condition to understand the nature of a will or the disposition of property or 
had the ability to make a contract intelligently? This was objected to on the 
ground that the witness had been shown to be the attending physician of the 
deceased ; the objection was overruled, the contestant excepted, and the witness 
answered that he could not say that she was incapacitated from making a will or 
disposing of her property. It should have been said, perhaps, that the testatrix 
died in November, 1886.

The question asked did not restrict itself to the interviews which took place in 
January, but embraced all the time subsequently up to her death, and during this 
subsequent time the physician was undoubtedly attending the testatrix in a 
professional capacity. It is claimed, upon the part of the respondent, that the 
question only related to the interviews in January, but the language of the 
question is: "On these two occasions in January, and subsequently in the year 
1886," thus clearly relating to times subsequent to January and within the 
prohibition of the law. It was error to receive this testimony, and it was error 
to consider this testimony. Upon reading the opinion of the learned surrogate it 
would appear that his attention had not been properly called to the peculiar 
nature of this testimony so that it might be rejected by him, all the evidence 
having been taken by a referee. This seems to have been a fatal error. We cannot 
determine as to whether the learned surrogate considered this evidence or not. 
It was important; it bore directly upon the issues between these parties and was 
of precisely the same nature as that which had been excluded when offered on the 
part of the contestants; and it is for this reason that we think that the 
attention of the surrogate could not have been called to this exception, 
otherwise he would have made the same ruling in respect thereto that he had made 
in respect to the evidence of the previous physician.

Other exceptions appear in the case to the apparent exclusion of testimony 
which, if it had been in reality excluded, would have been error. The witness 
Darragh was asked as to conversations which took place between the deceased and 
a Mrs. Duffin. These questions, upon the face of the record, appear to have been 
excluded, but, upon an examination of the evidence, they would seem to have been 
fully answered, and the contestants, because of this particular exclusion, have 
not received any harm.

It is true that, under the provisions of the Code, a decree admitting a will to 
probate should not be reversed for an error in admitting or rejecting evidence, 
unless it appears that the contestant was necessarily prejudiced thereby. But we 
think that, in the admission of the evidence of Dr. Conant, the contestants were 
necessarily prejudiced, as the evidence of a physician attending the deceased 
would have very great influence with the court in determining any question as to 
her testamentary capacity and her ability to resist the influence of those 
surrounding her.

We think, therefore, that the decree of the surrogate must be reversed and the 
case remitted back to the surrogate for a new trial.

Brady and Daniels, JJ., concurred.

Decree of surrogate reversed and the case remitted back to the surrogate for a 
new trial.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

File at: http://files.usgwarchives.net/ny/newyork/court/darragh822gwl.txt
This file has been created by a form at http://www.genrecords.org/nyfiles/

File size: 11.6 Kb