In re Bruendl's Will

• Decision Date: 31 January 1899
• Citation: 102 Wis. 45,78 N.W. 169
• Parties: IN RE BRUENDL'S WILL.
• Court: Wisconsin Supreme Court

102 Wis. 45

78 N.W. 169

IN RE BRUENDL'S WILL.

Supreme Court of Wisconsin.

Jan. 31, 1899.

Appeal from circuit court, Ozaukee county; John J. Dick, Judge.

A petition of Elizabeth Aberwald for probate of the will of Maria Bruendl, deceased, was contested by Mathias Bruendl and another, and, from a judgment admitting the will to probate, contestants appeal. Reversed.

(1) The proposed will of the deceased was contested on the ground of mental incompetency and of undue influence. The case was tried to the circuit court of Ozaukee county, sitting with a jury. A verdict of the jury in favor of competency, and against undue influence, was rendered, and a finding by the court was made to the same effect, and the will admitted to probate. The contestants offered the testimony of two physicians, partners, one of whom had been the attending physician of the deceased, and to whom her son-in-law applied to make an examination of her mental condition about four months before the date of the will, to ascertain as to her mental competency to care for her own property, with a view to applying to the county court for release from guardianship, under which she had been placed with her own consent. She submitted herself to the examination for this purpose. The court, after ascertaining that the knowledge of these physicians was thus obtained, excluded their testimony as privileged, under the provisions of section 4075, Rev. St. 1898, which constituted the first error assigned.

(2) Among the bequests was one of $400 to a church. The proponents offered as a witness, to prove mental competency by interviews and conversations with the deceased, the pastor of that church, who was vice president of its corporation. He was objected to as a party in interest, and incompetent to testify to personal transactions, under section 4069. The objection was overruled, which constitutes the second assignment of error. The contestants also assign error for refusing certain instructions and for admitting the will to probate.Edgar L. Wood, for appellants.

H. B. Schwin, for respondent.

DODGE, J. (after stating the facts).

1. Section 4075, Rev. St. 1898, is for the benefit and protection of the patient, and its prohibitions can be waived in her lifetime only by the patient, and not by the physician. Boyle v. Association, 95 Wis. 312, 70 N. W. 351. The purpose of the statute, as pointed out by Mr. Justice Pinney, in that case, is to facilitate and make safe full and confidential disclosure by patient to physician of all facts, circumstances, and symptoms, untrammeled by apprehension of their subsequent enforced disclosure and publication on the witness stand, to the end that the physician may form a correct opinion, and be enabled safely and efficaciously to treat his patient. The legislature has decided, wisely, that public policy requires such measure of restriction upon the freedom of the physician to testify or of others to demand testimony. But as it rested with the legislature to discover the necessity for, and to effectively impose, such restrictions, which are in derogation of the common law, it is for the courts only to enforce such as have been imposed, and not others, which the legislature has omitted. The seal placed on the lips of the physician only relates to “information necessary to enable him to prescribe for such patient as a physician.” The tendency of all courts has been, and should be, towards liberal construction of these words to effectuate the purpose of the statute. Thus, it has been held that the word “necessary” should not be so restricted as to permit testimony of statements or information, in good faith asked for or given to enable intelligent treatment, although it may appear that the physician might have diagnosed the disease and prescribed for it without certain of the information, so that it was not strictly necessary. Sloan v. Railroad Co., 45 N. Y. 125;Grattan v. Insurance Co., 80 N. Y. 281;Renihan v. Dennin, 103 N....