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By section 829 it is sought to guard against the danger, sometimes very real, of dishonest claims asserted against decedents' estates, by excluding communications made by a decedent to an interested person. This restriction. not infrequently works intolerable hardship in preventing the establishment of a meritorious claim. Furthermore, it has been enforced with the most rigorous literalness, and has been the occasion of a labyrinth of subtle decisions. A long experience leads me to believe that the evils guarded against do not justify the retention of the rule. In the early development of our jurisprudence the testimony of all interested witnesses was excluded; but experience gradually led to the conclusion that the restriction should be relaxed and more reliance should be placed upon the efficacy of our process of investigating truth. Cross-examination, for instance, has been found to be well calculated to uncover a fraudulent scheme concocted by an interested party; and where that has failed the scrutiny to which the testimony of a witness is subjected by the court and by the jury, has proven efficacious in discovering the truth, to say nothing of the power of circumstantial evidence to discredit the mere oral statement of an interested witness.

Section 834 prohibits a doctor from disclosing "any information which he acquired in attending a patient, in a professional capacity, and which was necessary to enable him to act in that capacity," thus in a will contest excluding facts which may be of the most important character. The theory of the section is that information obtained by a doctor is of a confidential character. the patient is incompetent, however, he is disabled from imposing such professional secrecy; while if he is competent, it ought to be presumed that he would wish to

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have his physician free to prove that fact. But the section itself is rendered almost absurd in practice by the provisions of section 836 by which the restrictions may be waived by the executors "or the surviving husband, widow or any heir-at-law or any next of kin, of such deceased, or any other party in interest." Thus, it may happen, and does frequently happen, that a contestant seeking to defeat the purposes of the testator, is able by a waiver to qualify a physician to testify, for the purpose of defeating the expressed wishes of the testator. In a case I recently tried a contestant who had been on the worst possible terms with the testator, was able to waive the restriction of section 834, and obtained the evidence of a prejudiced and hostile attending physician, who admitted that he was keenly interested. Section 835 prohibits a lawyer from disclosing a communication made by his client to him in the course of his professional employment. By section 836, the attorney, if he is a subscribing witness, may testify as to the preparation and execution of the will. But the restriction of section 835 still prevents a lawyer who is not such a witness, from testifying as to the instructions which he received from the testator. Like section 834, it is based upon the confidential character of the professional relation; but it is absurd to imply that the client would wish to have the ban of secrecy so operate as to prevent the establishment of the will which he had employed the lawyer to draw.

The institution of private property is the keystone of the foundation upon which the social, economic, and political structure of Anglo-Saxon civilization is erected. A necessary incident of that institution is the right

47 Matter of Spang (Jan. 21-Mar. 4, 1920, N. Y. Surro.); 197 App. Div. 310.

of an owner of property to transmit it by deed or will to whomsoever he pleases. For many generations this right has been jealously conserved by our courts. But under modern conditions the tendency has increased to subject to meticulous scrutiny the will of a man whose capacity to make a contract or a deed or to perform any other business act, would not be questioned while he was alive, and in the examination of his life history which this involves, our rules of evidence do not permit him to enjoy the vicarious privilege of presenting his side of the case through his natural confidantes,—his beneficiaries,, his spiritual adviser, his legal adviser and his physician. Verily it cannot be said of him that "he being dead yet speaketh." Even the aid of legal skill of the highest order cannot give him the consolation that his memory will not be marred by an unseemly disclosure of his foibles and weaknesses. As Lord Brougham said of ex-chancellors, after Lord Campbell had begun to write their lives, so modern testators may say, that death becomes for them "armed with a new terror"; and if they could speak they would probably in chorus invoke judges and juries as Hamlet did Horatio:

"Horatio, I am dead;

Thou livest; report me and my cause aright
To the unsatisfied."

III

ADDRESS BEFORE COMMITTEE ON LAW ENFORCEMENT OF THE AMERICAN BAR ASSOCIATION*

Mr. Chairman, and Gentlemen of the Committee:

I have appeared today in the place of the President of the Association of the Bar of the City of New York, who, unfortunately, was unable to be here because he was called, by duties of another character, to Boston. Last evening he asked me to extend to the Committee a welcome; and, more than that, to express to the Committee our gratification that we are able to be in some way useful in aiding in the important public duty which the Committee is performing.

The recent activity of the American Bar Association has been very significant and very useful, if in no other way, in presenting an example of devotion to that public duty to the entire community which rests upon all members of our honorable profession. The bar of America is becoming so large that some affirmative effort on the part of its various local organizations is necessary to keep alive its best traditions. And the function of the American Bar Association in giving solidarity to professional opinion and in establishing ideals for the guidance of the bar throughout the country is one which is not only noble

Made at meeting held June 1, 1922, at the Association of the Bar of the City of New York.

but is bound to produce practical results. There is need of stimulation of professional interest. An encouraging sign of the growth of that interest was the recent gathering in Washington to discuss the question of legal education—a subject dry and uninteresting for the general public. Between three and four hundred members of the American bar attended and it was the most representative body in point of standing of the participants and of territorial representation that has ever taken place; and it assembled under the initiative of the American Bar Association. Committees of that Association in the performance of their duties gather at their meetings from all parts of the country. And you gentlemen now come from places widely separated to deal with the important subject which is before you. In tendering you the hospitality of this house, I commend you for your public spirit.

I am unfortunately called into a participation in this meeting without having had an opportunity to prepare material or suggestions with that deliberation and care appropriate to the occasion. But the subjects which you are to consider have much interested me in connection with activities in which I have participated in other bar associations; and in 1914 one of the committees of this Association made a report dealing with a number of matters relating to the administration of the criminal law; the subject with which you are chiefly concerned. Some of those matters related to local conditions. When you shall have finished your deliberations, you will be able better than I to say which of them are pertinent to your consideration, and I will, therefore, mention them in order to make one or two comments:

The first proposal was in relation to the defendant in

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