KF Cornell University Law Library The Moak Collection PURCHASED FOR The^5chooI of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDGE DOUGLASS BOARDMAN FrRST DEAN OF THE SCHOOL By his Wife and Oaughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KF 755.A7R31 Leading American cases and notes upon th 3 1924 018 846 406 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018846406 LEADING AMEEICAN CASES AND NOTES UPON THE LAW OF WILLS EMBRACING TESTAMENTARY CAPACITY, UNDUE INFLUENCE, THE ADMISSION OF ORAL TESTIMONY IN AID OF THE CONSTRUCTION OF WILLS, THE EXECUTION OF WILLS, &c. BY ISAAC F. EEDFIELD, LL.D. BEING A SUPPLEMENT TO THE ATJTHOR'S WORK ON WILLS, AND ARRANGED IN A SIMILAR MANNER. BOSTON: LITTLE, BROWN, AND COMPANY. 1874. o- Entered according to- Act of Congress, in the year 1874, by ISAAC F. KEDFIELD, In the office of the Librarian of Congress, at Washington. CAMBRIDGE : PRESS OP JOHN WILSON AND SON. PREFACE. In addition to what is said in our brief Introduction, we may here add, that this volume has been prepared in the same manner and for the same reasons so fully stated in our leading American Cases upon the Law of Eailways. The notes of the points decided have all been prepared by the author, with the view of presenting, in few words, the pre- cise points of law declared in the opinions. The notes at the end of the cases, and especially those at the end of the several subdivisions of the work, are designed to give the exact present state of the law upon the questions discussed ; and enough of the important cases bearing upon these sub- jects are cited to render the progress and development of the law upon those points intelligible, without repeating fully what will be found more in detail in our former volumes upon the subject. We have no occasion further to discuss the value of this kind of law-books. We believe that our own attempt to supply a convenient supplement of American cases, to aid in presenting the law of particular topics, arranged in the same manner as treatises upon those subjects, is entirely novel, and it has been the result of convictions based upon long study and practice. It would not be surprising if others should feel less assured of its utility than the author. IV PREFACE. But, judging from the sale, and the use of the former volumes in court, and the repeated assurances we have received from many very eminent working members of the profession, we are encouraged to publish another volume, in the belief that it will prove as useful as any thing else we could do in that way. I. F. R. Boston, Nov. 30, 1874. SUMMARY OF CONTENTS. PART I — TESTAMENTARY CAPACITY. PAGE I. PKOCED0RE AND BURDEN OF PeOOP 4 II. Execution of Wills bt Deaf and DtrmB Persons, as ALSO BT THE BlIND 33 in. Form op giving Testimont bt Experts, and the Pur- pose and Effect op such Testimony 40 Supplementary Cases upon some op the preceding Points, and especially as to the Form of Ques- tions to Experts and other "Witnesses, when al- lowed TO express Opinions 53 IV. Value of the Opinions of Unprofessional Witnesses IN Regard to Testamentary Capacity and the Ground upon which it is Admissible 89 V. The Degree of Testamentary Capacity requisite to make a Will 158 VI. Partial Insanity, or Monomania 218 VII. Senile Dementia ; its Effect upon Testamentary Capacity 258 VIII. The Effect of Drunkenness upon Testamentary Capacity 311 IX. Lucid Intervals 347 X. Effect op Religious Opinions upon Testamentary Capacity 362 Effects of Modern Spiritualism upon Testamentary Capacity 365 VI SUMMARY OP CONTENTS. PART II. — FRAUD AND UNDUE INFLUENCE IN THE PROCUREMENT OF WILLS. I. The Burden op Proof 393 II. Evidence admissible to prove Fraud or Undue In- fluence 397 III. Wills procured through the Influence op Unlavt- FUL Relations cannot be maintained 439 IV. Effect of Will being written or dictated bt Principal Beneficiary 451 V. Declarations of the Testator, how far admissible 486 VI. How FAK the Character of the Will is Evidence OF ITS being procured by Improper Influence . . 501 VII. Effect of Will being written or dictated by one SUSTAINING AN Influential Relation to the Tes- tator, AS by a Clergyman, Guardian, Parent, or ANY OTHER RELATION OF SUPERIORITY 506 VIII. Effect op Testator being under Guardianship, and THE Will containing Bequests to the Guardian . 515 IX. The Effect of inducing the Testator to destroy his Will by Undue Influence 518 X. Fraud or Undue Influence in procuring Part of the Will, and how far it will avoid the Whole Will 521 PART III. —ADMISSION OF ORAL TESTIMONY TO EXPLAIN OR AID IN THE CONSTRUCTION OF WILLS. I. The Extent to which such Testimony is admissible ON General Principles 527 II. Admissible to place the Court in the Position of THE Testator 539 III. Admissible to define the State of a Specific Be- quest, IN order to enable the Court to apply the Words of the Will to the Subject-matter . . 552 IV. Definition of Latent Ambiguity, which may be solved BY Proof op Intention 583 SUMMARY OF CONTENTS. vii PART IV. —THE EXTENT TO WHICH EQUITY WILL EN- FORCE STIPULATIONS MADE TO INDUCE ANY ONE TO OMIT MAKING A WILL OR A BEQUEST IN FAVOR OF THE COMPLAINANT 607 PART v. — THE EXECUTION OF WILLS AND TESTA- MENTARY GIFTS. I. Signing by the Testatok 613 II. What constitutes Request to Witnesses to attest Execution 627 III. Proof of Due Execution by Testator. Effect of Attestation Clause 634 IV. Witnesses must write their Namp.s or Mabks at the Time op Attestation 638 V. Effect of Attestation Clause 651 VI. Requisite Proof of Due Execution 655 VII. Nuncupative Wills 678 VIII. Gifts Mortis Causa 700 PART VL — SELECTION OF LATER CASES UPON SOME OF THE I'OREGOING TOPICS. I. Burden of Pkoof ; Testamentary Capacity ; Undue Influence 723 II. Undue Influence 730 III. Testamentary Capacity ; The Unequal Provisions of THE Will ; Insane Delusion, its Character and the Evidence of its Existence 751 IV. Partial Insanity extending only to a Portion of THE Will is no Reason for avoiding the Whole. Unprofessional Witnesses may express Opinions after stating Facts. Experts may give Opinions upon Hypothetical Cases or upon the Facts proved 755 ANALYSIS OF CONTENTS. PART I. TESTAMENTARY CAPACITY. I. PROCEDURE AND BURDEN OF PROOF. 1. Brooks V. Barrett, 1 Pickering's Bepoi-ts, 94. 1828. p. 5-8. According to the practice in Massachusetts, in appeals from probate, either allowing or disallowing the will, it is to be heard in the appellate court, in the same manner as if first presented for probate in that court. Being proved by the subscribing witnesses, both as to the execution and the sanity of the testator, the will is to be allowed and set up, unless the party objecting disprove the facts thus established. The burden of proof is thus shifted from the executor to the contestants. But the executor will be entitled to go forward and have the open and close in the argument. If the proof in favor of insanity only makes the case doubtful, the general pre- sumption in favor of sanity must prevail. The effect of suicide near the time of executing the will, as tending to prove insanity. 2. Baxter v. Ahhott, 7 Gray's Reports, 71. 1856. p. 8-13. In the trial of causes in regard to the validity of wills, where insanity is urged in defence, the general presumption of sanity will prevail, unless there is some proof to the contrary. But still the general burden of proof of mental competency of the testator to execute the will remains upon the executors, and is not changed by the general presumption of sanity. [If this does not involve a solecism, we cannot well conceive one.] In the trial of questions of insanity, ordinary practising physicians, who have had opportunity to know the habits and mental peculiarities of the testator, are competent to give opinions, as experts, upon the testator's mental con- dition. If it was a new question, I should be disposed to allow every witness to give his opinion upon questions of insanity, subject to cross-examination upon the X ANALYSIS OP CONTENTS. reasons upon which it is based, his degree of intelligence, and his means of observation. — Thomas, J. It may be shown, upon trials in regard to insanity, that the ancestral relatives, direct or collateral, of the person were subject to insanity, or that any of them were, in fact, insane. The attestation of a will is no evidence that the witness regarded the testator as sane at the time. 3. Thornton v. Thornton, 39 Vermont Reports, 122. 1866. S. C. 6 Ameri- can Law Register, New Series, 341. p. 13-27. The executor, or whoever offers a will for probate, must call and examine all the subscribing witnesses, within the reach of process, and competent to give testimony. If any of the witnesses give testimony adverse to the plaintiff, he may show that such witness had made statements out of court in conflict with his testimony, for the purpose of detracting from the weight of such testimony. The testimony of the subscribing witnesses to a will is not entitled to special regard, on that account merely. The draft of a, former unexecuted will is evidence in regard to the present will having been executed freely and understandingly. Evidence that the will contains one or more legacies, which would not have been thought of but for the promptings of others, does not necessarily prove inca- pacity or want of freedom. It may be proper testimony for the consideration of the jury upon these points. The court, in the trial of the question of undue influence in procuring a will, is not bound to instruct the jury that any particular portion of the testimony, if believed by them, will or will not justify a verdict against the validity of the will. All that is required is that the jury be properly instructed as to what will amount to undue influence in such cases. Note. p. 28-32. Procedure and Burden of Proof. Jackson v. Van Dusen, 6 Johnson's Reports, 144; Pettes v. Bingham, 10 New Hampshire Reports, 616; Turner v. Cheesman, 16 New Jersey Equity Reports, 243. II. EXECUTION OF WILLS BY DEAF AND DUMB PERSONS, AS ALSO BY THE BLIND. 1. Weir V. Fitzgerald, 2 Bradford's Surrogate Reports, 68. 1851. p. 33-35. Note. p. 86, 37. Brower v. Fisher, 4 Johnson's Chancery Reports, 441. 2. Wampler v. Wampler, 9 Maryland Reports, 540. 1856. p. 37-40. Where the testator is blind, it is not important that his will should be read to him in the hearing of the witnesses. It is sufiicient if he acknowledge the paper as his will, and there be evidence from any source that he knew its contents. ANALYSIS OF CONTENTS. XI It is not necessary to avoid a will, on the ground of undue influence, to prove it to have been fraudulently obtained. It will be sufficient if it were not the voluntary act of the testator. The fact that the testator consulted others in regard to the value and distribu- tion of his estate, and adopted their advice, is not necessarily evidence of undue influence, but may often tend to show both capacity and freedom. III. THE FORM OF GIVING TESTIMONY BY EXPERTS, AND THE PURPOSE AND EFFECT OF SUCH TESTIMONY. I. Commonwealth v. Rogers, 1 Metcalfs Reports, 500, 504. 1844. '] p. 40-42. The experts may be asked : — " If the symptoms and indications testified to by other witnesses are proved, and if the jury are satisfied of the truth of them, whether in their opinion the party was insane, and what was the nature and character of the insanity ; what state of mind did they indicate, and what would you expect would be the conduct of such a person, in any supposed circumstances ? " It [the testimony of experts] is designed to aid the judgment of the jury in regard to the influence and effect of certain facts, which lie out of the obser- vation and experience of persons in general." Effect of the testimony of experts. " And such opinions, when they come from persons of great experience, and in whose correctness and sobriety of judg- ment just confidence can be had, are of great weight, and deserve the respectful consideration of a jury. But the opinion of a medical man of small expe- rience, or of one who has crude and visionary notions, or who has some favorite theory to support, is entitled to very little consideration. The value of such testimony will depend mainly upon the experience, fidelity, and impartiality of the witness who gives it." 2. United States v. McGlue, United States Circuit Court, 1 Curtis, 1, 9. 1851. p. 42-44. Manner of giving testimony by experts. " They are not allowed to give their opinions upon the case," but only upon such facts as are assumed by counsel, or testified to by the witnesses. " It is not the province of an expert to draw inferences of fact from the evidence, but simply to declare his opinion upon a known or hypothetical state of facts." Object of the testimony. To aid the jury in making correct inferences from the facts proved, and to enable them to reach a wise and just conclusion. These opinions of the expert are entitled to a fair and just consideration by the jury, but they are not absolutely binding, when opposed to their own con- victions of truth. 3. Heald v. TTiing, 45 Maine Reports, 392. 1858. p. 44-49. Ground of opinion of experts. An expert cannot be allowed to give his opinion in regard to sanity, when it is based partly upon representations made to him XU ANALYSIS OP CONTENTS, by persons not under oath. His opinion , to be received as testimony in a court of justice, must be based, either upon his own observation of the person, or ■what is testified in court by other witnesses ; and, in either case, the facts upon which his opinion rests must be distinctly stated. He is also allowed to state the grounds of bis opinion, or the reasons which induce him to adopt a particular conclusion. The weight of the opinions of experts depends upon the character, learning, and experience of the witnesses, and its eifect in satisfying the mind of the jury. Note. p. 49-61. The form of giving testimony by experts. 4. Woodbury v. Obear, 7 Gray's Reports, 467. 1856. p. 52. An expert who has been present during the trial, and heard all the testimony, cannot be asked, " Suppose the facts stated by the several witnesses to be true, was the testator laboring under an insane delusion, or was he of unsound mind ? " But he may be asked his opinion upon any state of facts which the counsel claims to be proved by all or any part of the testimony. Peculiar opinions of the testator, as that he believed in ghosts and supernatural influences, may show feebleness of mind, and consequent exposure to undue influence. Supplementary Cases upon Points already alluded to. Harrison v. Rowan, 3 Washington's Circuit Court Reports, 580. 1820. p. 53-58. 1. " A witness may be asked what opinion he formed of the sanity of the testator, at or about the time of the will being made, but not what he said to third persons upon the subject.'' 2. " It was irregular for the plaintiiF in the first instance to give evidence of sanity. All that he has to do is to prove the due execution of the will, according to the form prescribed by the statute. Incapacity or fraud is the defence set up on the other side, which the plaintiff is then called upon to repel. Nevertheless, it would be too rigid to preclude the examination of his witnesses on that subject, because he had irregularly asked some questions respecting it in the first instance.'' 3. It is not necessary to show that the will was read to the testator. The law presumes he knew its contents from his execution of it. But where he was blind, or incapable of reading, and there is evidence tending to show that he might easily have been deceived or imposed upon by those about him, it is incumbent upon those claiming under the will to prove satisfactorily that the testator understood the contents of the will. 4. The testator should be shown to have had a sound disposing mind and mem- ory ; that is, that he was capable of making his will, with an understanding, of what he was doing. 6. The subject extensively illustrated. 6. The evidence of the attesting witnesses is of great weight. ANALYSIS OP CONTENTS. Xlll Stevens v. Vandeve, 4 Washington's Circuit Court Reports, 262. 1822. p. 59-64. A man whose memory is totally extinguished cannot be said to possess under- standing to any degree whatever, or for any purpose. But the memory of the testator may be very much impaired, so that he has not sufficient strength of memory and vigor of intellect to digest all the parts of a contract, and still he may be competent to direct the distribution of his property by will. The question is not so much as to the degree of memory possessed by the testator, as. Had he a disposing memory P Was he capable of recollecting the prop- erty he was about to bequeath, the manner of distributing it, and the objects of his bounty? In short, were his mind and memory sufficiently sound, to enable him to know and to understand the business in which he was engaged at the time lie executed his will." The point of time to be looked at is that of the execution of the instrument. The testator maj' have been incapable of executing a will, at any time before ' or after ; but that is not important, except as it tends to show incompetency at the time of the execution. The testimony of the attesting witnesses is most important, since they attest not only the due execution, but the competency of the testator, at the time of execution. Next to the attesting witnesses, the testimony of those present at the execution of the will, will be regarded as most reliable, other things being equal. Testimony as to declarations made by the attesting witnesses, in conflict with their testimony, should be viewed with distrust, and carefully scrutinized, in order to be assured that it was made seriously, clearly understood, and cor- rectly remembered and reported. The opportunities for its being misunder- stood or imperfectly reported ai-e such as to require great caution in acting upon it.. What amounts to signing the will by the testator, through the agency or assist- ance of another, carefully considered, and discussed in detail. The burden of proving insanity rests upon the contestants, until it is once estab- lished ; then the burden shifts, and the proponent must prove sanity restored at the time of making the will. The mode of weighing conflicting evidence discussed. Examination of many Questions discussed more or less in the pre- ceding Cases, especially in Regard to the Form op Questions to Experts and other Witnesses, when allowed to express Opinions. p. 64-67. Beauhien v. Cicotte, 12 Michigan Reports, 459. 1864. p. 67-89. Where a witness is under cross-examination as to the minute particulars of what passed in a former transaction, in regard to which he had before testified, it is not improper to inquire whether he did not, on the former occasion, testify to the occurrence of a particular fact. XIV ANALYSIS OF CONTENTS. In order to fix the exact time of a transaction by the testimony of a witness, it is not improper to call the witness's attention to his language in giving testimony on a former occasion, or even to read in his hearing the minutes of testimony taken by counsel on that occasion. Where a will, in favor of a particular party, is attempted to be impeached, upon the ground that it was obtained through the weakness of mind of the testator, and the undue iniluence of the beneficiary, it is competent to give in evidence the declarations of the testator in regard to his aversion to such person, and the necessity of his yielding to her demands, to obtain peace, made about the time of executing the will. After one of the subscribing witnesses has testified to the valid execution of the will by the testator, and his capacity to execute the same, and has denied say- ing upon a particular occasion that if the family followed it up they would break the will, for it was not worth a snap of his fingers, it is competent to show by other witnesses that he did so state, especially when the witness was the attending physician of the testator at the time the will was executed. Such testimony tends directly to detract from the weight of the testimony of the witness. The complaints made by the testator's wife, who was the principal legatee under the will, against the provisions made, in a former will, for the family of the testator, and her abuse of them, and the testator's declarations that his family had not importuned him to make such provisions, are competent evidence to show the relations of the family and the testator's position and state of mind. Capacity requisite to execute a will implies that the testator understands what he is doing, to whom he gives his property, and in what proportions, and whom he is depriving of it. The object of the trial is to give the jury perfect knowledge of the testator's mental condition. This was formerly done by personal inspection, or by the testimony of witnesses to facts, and opinions founded upon such facts, and other facts incapable of description. But unprofessional witnesses long acquainted with the testator have been allowed to give an opinion founded upon their knowledge and observation, and then detail such facts on cross-examination. [It should rest in the discretion of the court when the facts are stated, since it comes to the same result finally.] Unprofessional witnesses, not subscribing witnesses to the will, may express opin- ions in regard to the conduct, appearance, and capacity of the testator, and how far they indicated a sound mind. There is no good reason for any dis- tinction in this respect between the subscribing witnesses and any others. ~ Witnesses may state in detail the capacity of the testator to transact business of any or all kinds, but the answers should be, as far as practicable, directed to the particular kind of business, or the transaction under consideration. In the English courts of every kind all witnesses may testify to their knowledge, observation, and opinions, in regard to the sanity and mental capacity of the testator. Professional witnesses may express opinions from the testimony of others; but, in America, all witnesses are required to state the basis of their opinions, as far as it is practicable. There is no sound reason why witnesses should be denied the right to express opinions upon the very points before the jury j but the decisions in this coun- ANALYSIS OP CONTENTS. XV try do not seem to go that length. But in any sound view the question should be so framed as to require the opinion of the witness in the nearest allowable conformity to the very point before the jury. If it is not allowable, as some of the cases hold, to take the opinion of the wit- nesses, professional or otherwise, upon the point of the testator's capacity to comprehend the very will under consideration, it is clearly competent to take it in regard to one of precisely the same character ; and the nearer, the more satisfactory. The witnesses may give opinions upon any measure of capacity in the testator calculated to aid the jury in their deliberations and conclusions. It is essential that the opinions which juries receive should enlighten them upon the very point in controversy, if possible, for otherwise their verdict must be conjectural, or the result of indefinite analogies. IV. THE VALUE OF THE OPINIONS OF UNPROFESSIONAL WIT- NESSES IN REGARD TO TESTAMENTARY CAPACITY AND THE GROUND UPON WHICH IT IS ADMISSIBLE. 1. Brooke, v. Towmhend, 7 Gill's Reports, Id, 21. 1848. p. 89-93. How far unprofessional witnesses may express opinions upon sanity. An unpro- fessional witness, long familiarly acquainted with the testator, after giving an account of his conduct and appearance, may be asked his opinion of the tes- tator's capacity and state of mind. The answer to this question is not to be regarded as mere opinion., it is knowledge, derived by the witness from obser- vation and experience, and is but stating, in brief, the effect upon his own mind of the conduct and conversation of the testator. [It is more valuable than the testimony of experts unacquainted with the testator.] Note. p. 93. Value of the opinions of unprofessional witnesses. 2. Dunham's Appeal, 27 Connecticut Reports, 192, 197. 1858. p. 93-104. The ground upon which unprofessional witnesses may give opinions. Where the witness has had opportunity for observing the conduct and conversation of the testator, for any time, longer or shorter, his opinion of his mental soundness and capacity is matter of knowledge rather than of speculation and com- parison. But. such a witness, professing no special experience or skill upon the subject, cannot be required to express his opinion upon a hypothetical case put to him by counsel upon cross-examination. How far partial insanity destroys testamentary capacity. Any extent of mental perversion, which does not involve the general structure of the mind, will not invalidate the will of such person, unless it is in some sense the offspring of or aflfected by such perversion. [The discussion of the learned judge presents the important questions involved in a very perspicuous and satisfactory light.] XVI ANALYSIS OP CONTENTS. 3. Glapp V. Fullerton, 34 New York EepwH, 190, 194. 1866. p. 105-110. The opinions of unprofessional witnesses are admissible to the extent of charac- terizing the acts and declarations to which they testify, as being done or made by the testator, as having been, or appearing to them, to have been, either rational or irrational. But they are not allowed to express an opinion upon the general question how far the testator was, in fact, rational or not at the time of executing the will, or at any other particular time. As in appeals from probate, tried before the surrogate's court, the Supreme Court sits as a court of equity, its judgment will not be reversed on the ground of the admission of incompetent evidence, where the Court of Appeals can see clearly that such evidence had no important bearing in the decision of the case, and that other evidence was given fully justifying the judgment. The fact that the testator believed one of his daughters was illegitimate, upon slight and unsatisfactory evidence operating upon a sensitive and ill-balanced mind, provided there was no insane delusion controlling his mind, will not avoid the will. Discussion of the difference between prejudice and suspicion, and insane delusion. 4. Stackhouse v. Horton, 15 New Jersey Chancery Re-ports, 202. 1854. p. 110-129. Opinion of witnesses. The abstract opinion of any witness, medical or of any other profession, is not of any importance, as evidence. It must be brought to the test of the facts upon which it is founded, and its weight thus deter- mined by the court. It is not a mere unsoundness of mind, or a memory impaired, that constitute that mental incapacity which will deny testamentary capability. If the prejudice of a testator, in regard to any of the natural objects of his bounty, amount to nothing more than misconception or misjudgmenl, and involve no insane delusion, which is entirely outside the domain of reason and judgment, it will not defeat the testamentary act. Where there are not only some plausible grounds for the opinions entertained by the testator, but much reason to doubt whether they are not entirely just and sound, it would be absurd to pronounce them insane delusions, however much professional witnesses may so characterize them. Influence to become so undue as to defeat a will induced by it " must amount to fraud. Nothing less can vitiate the instrument." One friend has the right, when asked to do so, to advise another, in regard to her will, " and it is not to be presumed that he deceived her, or took an undue advantage of his friendly position." 5. Turner v. Cheesman, 15 New Jersey Equity Reports, 243. 1857. p. 130-137. The mere fact that one is a subscribing witness to a will does not entitle hiri opin- ion of the competency of the testator to execute the same to any more weight than that of any other witness. ANALYSIS OP CONTENTS. XVU And if it happens, as is not uncommon, that he is selected at the moment, merely, for the purpose of meeting the legal requirements, his opinion upon the tes- tator's state of mind can be of but very little weight. The weight of the evidence from the opinion of the subscribing witnesses depends upon the same considerations which affect the weight of the opinion of other witnesses upon the question of the testator's competency. " Whether a subscribing witness or not, we must look at the intelligence of the man, and the means he enjoyed of forming the opinion which he advances, and give weight to his opinion accordingly." One who knew the testator intimately for many years before, and especially near the time of the execution of the testamentary act, if he was a close observer and possessed of discriminating and impartial judgment, must be regarded as competent to afford great aid in determining the testator's competency, by his opinion, in connection with the facts upon which it is based. Undue influence. That degree of influence which is sufBcient to deprive the tes- tator of his free agency — and which he is unable to resist — will invalidate the testamentary act thus induced, not only in reference to the person or per- sons by whose instrumentality it was procured, b,ut as to all others intended to I be benefited by such undue influence. 6. Scrihner v. Orane, 2 Paige's Reports, 147. 1830. p. 137-157. No one should subscribe his name, as witness to a will, without satisfying himself of the fact that the testator understands what he is doing. The testimony of a subscribing witness to the will, who did not do this, is of no value upon that point. His attestation "certifies to his knowledge of the mental capacity of the testator, and that the will was executed by him freely and understandingly, with a full knowledge of its contents.'' Note. p. 139-167. Dissenting opinion of Mr. Justice Doe, in State v. Pike, 61 N. H. Reports, 105 ; s. c. 11 Am. Law Register, n. 8. 233. V. THE DEGREE OP MENTAL CAPACITY REQUISITE TO EXECUTE A VALID WILL. 1. DelafieU v. Parish, 25 New York Reports, 9, 22. 1862. p. 158-171, The testator must have sufficient mind and memory to be able to understand that he is making his will, and how he is doing it, and its effect, both upon his property and upon those who would receive it, after his decease, without leav- ing a will. 2. Converse v. Converse, 21 Vermont Reports, 168. 1849. p. 171-173. In order to execute a valid will, one must have sufficient active memory to recall his family and his property, and to form some rational judgment in regard to 6 XVIU ANALYSIS OP CONTENTS. the deserts of the one and the disposition of the other, with reference to such deserts. Note. p. 173. , 3. Comsloch V. Hadlyme, 8 Connecticut Reports, 254. 1830. p. 174-181. Those who propound the will for probate must assume the burden of showing that it was duly executed by the testator, and that he at the time was capable of doing the act in an understanding manner ; and this party must open and close the case, both in proof and argument. The executor is a competent witness in favor of the will. The declarations of the testator, made about the time of the execution of the will, unless made at the very time, so as to form a part of the res gestw, are not competent testimony to the facts claimed to constitute undue influence. In regard to testamentary capacity, the question is, whether the testator had a sound, disposing mind and memory, sufficient to know and understand the business in which he was engaged. Parol evidence is not admissible to show that the scrivener, by misapprehension or mistake, did not make the will to give legacies to some persons intended to have them, either for the purpose of impeaching the will or restoring the lega- cies, no proof of fraud or imposition being offered in connection with the omission of such legacies. 4. Moore v. Moore, 2 Bradford's Surrogate Reports, 261. 1853. p. 182-193. Testamentary capacity is consistent, especially in very aged persons, with a great degree of, mental infirmity, and some degree of mental perversion or aberra- tion, at times, provided there is satisfactory proof that the testator, at the time of the execution of his will, really did comprehend its import and scope, and was not under the control of any improper or undue influence, or of any deception or delusion. 5. Kinne v. Kinne, 9 Connecticut Reports, 102. 1831. p. 194^198. The opinions of witnesses in regard to one's competency to do business are en- titled to little regard, unless supported by good reasons, founded on facts which warrant them. If one had, at the time of making h'S will, an understanding of the nature of the business, a recollection of the property he meant to dispose of, and of the persons to whom he meant to convey it, and the manner in which he meant to distribute it, he was possessed of testamentary capacity. All that is required is, that he should have understood the elements of which his will was composed. In passing upon testamentary capacity, care should be exercised that singularity be not confounded with insanity, and that a weakened intellect be not mis- taken for one that is lost. ANALYSIS OF CONTENTS. XIX 6. Cordrey v. Cordrey, 1 Houston's Delaware Reports, 269. 1856. p. 198, 199. The formal execution of the will being established, the presumption of law is in favor of the capacity of the testator to execute it. All that the law requires, to enable the testator to execute a valid will, is, that he be capable of exer- cising thought, reflection, and judgment. If he knew what he was about, and had memory and judgment, it is sufficient. The inquiry is not whether the testator had perfect mind and memory, but whether he had sufficient thought, judgment, and reflection to comprehend the act. A knowledge of what he was about, and how he was disposing of his property, and the purpose so to do it, are all the law requires to consti- tute testamentary capacity. , Undue influence, in the case of one of testable capacity, must be such as to take away his free will ; such as he is too weak to resist. Mere solicitation, although it may result in modifying the will, is not sufficient to avoid it [until it amounted to practical compulsion, in order to buy peace]. 7. Morris v. Stakes, 21 Georgia Reports, 552. 1857. p. 200-206. The sayings of a single legatee, although the principal one, in regard to the mode of obtaining a will, are not admissible to defeat the entire will, unless a con- spiracy or combination among all the legatees to obtain the will by unlawful means be first shown. But guch testimony is admissible to defeat particular legacy of that party, on the ground that it was procured by fraudulent means. And the jury may, by the same verdict, establish the remainder of the will. The declarations of the party who procured the will to be executed, in connection with his acts in procuring it, whether himself a legatee or not, may be shown as part of the res gestce, and tending to defeat the entire will. If the testator was not wholly destitute of understanding and judgment at the time of executing his will, it may be upheld. As to the degree of influence which the law regards sufficient to defeat a will, it must destroy the testator's free agency. In the language of Mr. Williams, " There must be proof that the act was obtained by force and coercion; by importunity which could not be resisted ; that it was done merely for the sake of peace ; that the motive was tantamount to force and fear." Where a guardian obtains a will from his ward in his own favor, by such acts of kindness and indulgence towards him as would be perfectly allowable between those in independent relations, it will, nevertheless, defeat, the testament so obtained, as between guardian and ward. Here there should be the most satisfactory evidence that no improper influence was brought to bear upon the testator to induce him to make the will in favor of his guardian. 8. Duffield V. Morris, 2 Harrington's Delaware Reports, 375. 1838. / p. 206-218. The formal execution of the will being proved, the burden of showing either mental incapacity or undue influence rests upon the contestants. XX ANALYSIS OP CONTENTS. Sanity is always to be presumed, until the contrary be shown. The mind, although weakened, is to be held sound for the purpose of making a will, until there is a total loss of understanding, or idiocy, or the existence of delusion. So long as one is compos mentis, he may make his will, if not exposed to any undue influence. Insane delusions are such as no sane person ever entertains, or ever could enter- tain. Partial insanity will defeat a will in any way produced or affected by it. Testamentary capacity implies that the testator knew what he was doing, and how he was doing it. In doubtful cases, the dispositions of the will afford great aid in determining the capacity of the testator. Suicide is no ground of presuming insanity, but it may be considered, in connec- tion with other testimony, as tending to show mental perversion. If insanity be shown to exist before the making of the will, its continuance is presumed, and it is necessary to show a lucid interval at the time of its execu- tion, which is difficult of proof, and must be clearly shown. Drunkenness may destroy testamentary capacity for the time, or, if long contin- ued, may destroy it permanently, by producing imbecility or insanity. Undue influence to defeat the will must destroy free agency ; must amount to force or fraud. Note. p. 214-218. Testamentary capacity. VI. PARTIAL INSANITY, OR MONOMANIA. 1. Boyd V. Eby, 8 Watts's Pennsylvania Reports, 66, 70. 1839. p. 218-222. The testamentary capacity implies enough sound understanding to comprehend the transaction in its ordinary relations. Lucid intervals require such restoration of the sound mind as to enable the tes- tator " soundly to judge of the act." 2. Seamen's Friend Society-v. ITopper,ZZ New Tork Reports, 619, 620-637. 1865. p. 223-238. What amounts to mental unsoundness. It must be something more than "per- verse opinions" or "unreasonable prejudices." The opinion of unprofes- sional witnesses, with only a short or slight acquaintance with the party, is of little value " upon questions of insanity." If the witnesses, though not pro- fessional, " have had a long and intimate acquaintance with the person . . . and are persons of intelligence, and detail the facts upon which their opinions are founded, the testimony is often extremely useful." If one believes in the existence of facts which have no real existence, and refuses to disbelieve them, upon the clearest proof of their being false, and persist- ently conducts upon the assumption of their truth, he is, to that extent, " under ANALYSIS OF CONTENTS. XXI morbid delusion," and " delusion in that sense is insanity." And a will which is the result of such delusion, or is, or may be, affected by it, cannot be sup- ported. Note. p. 238. 3. Lucas V. Parsons, 27 Georgia Reports, 593, 615. 1859. p. 238-251. An entire change in character and conduct is the best evidence of insanity. One under commission of lunacy is presumptively incompetent to execute a valid will. If restored to his reason he may do so ; but the burden of showing it rests upon the proponents, and it requires the clearest proof of actual restoration to reason. There should also be the most satisfactory proof that the will, made while the tes- tator was under commission of lunacy, was made freely and without any influ- ence designed to induce the testator to make an unjust or improper will. If the testator, while in the care of those benefited by the will, and while in a state of great weakness of mind, make an entire change in his testamentary intentions and dispositions, "the law must have strong proof of both volition and capacity." Note. p. 261. Entire change of character, plenary evidence of insanity. 4. Trumbull v. Gibbons, 2 Zabriskie's New Jersey Reports, 117, 155. 1849. p. 251-258. Partial insanity, or monomania, will render a will void which is produced by it. Influence acquired by kind offices, or even by persuasion, unconnected with fraud or contrivance, will not avoid a will affected by it. But such acts may be so practised, through the prejudices of the testator, in pro- ducing an unjust will, as to avoid it. Note. p. 266-268. Partial insanity. Vn. SENILE DEMENTIA, ITS EFEECT UPON TESTAMENTAET CAPACITY. 1. Van Alst v. Hunter, 5 Johnson's Chancery Reports, 148, 158. 1821. p. 258-262. Neither old age, sickness, or debility disqualify one for making a will, if sufficient mental capacity still remain. The character of the will, when natural, just, and reasonable, must have weight in determining the comprehension and capacity of the testator, where he is shown clearly to have dictated it. The absence of all pretence of influence or fraud in procuring it is worthy of great consideration. So, too, where the witnesses impute no single act of folly to the testator, it tends greatly to show he still retained considerable mind. Note. p. 262. Senile dementia. XXU ANALYSIS OP CONTENTS. 2, Potts V. House, 6 Georgia Reports, 324, 336. 1849. p. 262-285. 4. The opinions of unprofessional witnesses are admissible in connection with the facts testified to by them upon questions of testamentary capacity. H. The degree of capacity requisite, in persons of extreme old age, to make a valid will discussed and defined. 12. The tei-ms non compos mentis imply a total want of mind, and such persons cannot make valid wills, however just and reasonable in themselves. 13. Partial insanity upon the particular subject of the will, or with reference to the particular legatee, will invalidate the will. 14. If the testator had testamentary capacity, his will must stand, however un- reasonable. 15. Undue influence in procuring a will implies moral coercion and the depriva- tion of free agency. Note. p. 285. 3. Gollins V. Townley, 21 N'ew Jersey Equity Reports, 353. 1871. p. 285-287. The mere fact that the testatrix was ninety-eight years old at the time of making her will, is no ground for presuming testamentary incapacity. Neither will undue influence be presumed, in such a case, when the will is in favor of a daughter with whom the testatrix had lived for many years ; but under these circumstances the other children have the right to require that it be clearly proved that the will was understandingly made, and that it was her testamentary act. When a contest upon the validity of a will is unreasonably protracted, the court will not award the contestants costs out of the estate, and may even decree costs against them. 4. Olarh v. Fisher, 1 Paige's Reports, 171. 1828. p. 287-293. Competency to execute a will requires the testator to be of sound and disposing mind and memory, so as to make the disposition of his property with sense and judgment, in reference to the situation and amount of such property, and to the relative claims of the different persons who are or might b.e the objects of his bounty. The mere opinion of witnesses upon such questions is, at the best, and in con- nection even with such facts as the witness is able to state as the ground of such opinion, eminently unsatisfactory. Its weight depends upon the intelli- gence of the witnesses, and their capacity to form correct opinions, as well as their means of information, the freedom of their minds from prejudice, and the nature of the facts testified to in support of those opinions. Incompetency for a considerable time to execute a will being established, the burden of showing its removal is thrown upon the executor. In doubtful cases, the reasonableness or not of the provisions of the will is enti- tled to great consideration. ANALYSIS OF CONTENTS. XXIU If advantage is taken of the testator's weak state of mind to obtain an unjust will, which he would not freely have made, it cannot be maintained. Note. p. 292, 293. 5. Harrel v. Harrel, 1 Duvall's Kentucky Reports, 203. 1864. p. 293-296. Where the dispositions of a will are grossly unequal, and there is no satisfactory explanation why they should be so, the law requires clear evidence that it was the free and deliberate offspring of a rational, self-poised, and clearly dis- posing mind. Where, in such a case, the testator was more than seventy years of age, and laboring under an inflammatory disease, which at the time rendered him coma- tose and flighty, until fully aroused from his torpor, and which terminated fatally two days after ; and there was evidence of great importunity during the period of eight years on the part of the wife to induce such a will, and the constant resistance of the testator, accompanied with the declaration that the law made the fairest disposition of the estate of deceased persons, and that he would die intestate, — the court refused to uphold the will, declaring such course the only one consistent with sound policy, and the proper vindication of the testamentary power. 6. Munday v. Taylor, 7 Bush's Kentucky Reports, 491. 1870. p. 296, 297. The mere fact of the unreasonableness of the testamentary provisions is not evi- • dence of want of testamentary capacity, where nothing is shown tending to establish either weakness of mind or undue influence ; but, in connection with other evidence of such facts, the character of the will must often have a very important bearing. But any explanation, contained either in the will or the existing facts and circum- stances of the case, must have its just weight in rendering reasonable any por- tion of the will which otherwise would not appear so. 7. Boss V. Ghristman, 1 Iredell's Law Reports, 209. 1840. p. 297-299. If there is evidence of fraud and imposition in procuring the will, it is competent for the triers to consider the provisions of the same in connection with such evidence, with a view to determine the question of the probable existence of such fraud or imposition. But where capacity, formal execution, and volition all appear, no tribunal can pronounce against a will because of its disapprobation, however strong, of the dispositions made by the testator. Note. p. 298, 299. Evidence of undue influence. XXlV ANALYSIS OP CONTENTS. 8. Sechrest v. Edwards, 4 Metcalfe's Kentucky Reports, 163. 1862. p. 299-311. If the witnesses and the testator all execute and attest the will at the same time, or the testator's name being written before, he acknowledge the instrument to be his will, in the presence of the witnesses, at the time of their attestation, it will be sufficient. If a will be duly executed by the testator, the law presumes he did it under- standingly. Although the testator was more than eighty-three years of age, and his mental capacity to some extent impaired by old age and physical infirmities, yet if he is capable of understanding business, and doing it prudently and sensibly, computing interest correctly without figures, and talks sensibly and rationally upon all business transactions, and manages his farm himself and all his affairs with judgment and success, he must be regarded as possessing testa- mentary capacity. Where the testator is advanced in years, and his mind and memory considerably impaired, yet if he steadfastly resists the importunity of the expected bene- ficiaries under his will, until convinced that a particular course is proper, and then disposes of his property by will in a just and proper manner, in conformity with the provisions of a will made many years before, except as circumstances have become changed, and without any evidence being shown of extraneous influence, it cannot be said the will was procured by undue influence. Lawful influence, such as arises from legitimate domestic or social relations, must be allowed to produce its natural results, even upon last wills and testaments. And there can be no presumption of its unlawful exercise, merely from the fact of its existence and possible operation upon the testator's mind; and even where it produces the natural results of inequalities in the testamentary dispositions, there is no ground of impeachment of the will on that account. It is only where such influence is exerted over the very act of testamentary disposition, so as to prevent it being truly the act of the testator, that the law condemns it. Note. p. 308-311. Infirmities of old age and consequent exposure to undue influence. VIII. THE EFFECT OF DRUNKENNESS ON TESTAMENTARY CAPACITY. I. Gardner v. Gardner, 22 Wendell's Reports, 526. 1839 p. 311-320. " If the testator was unfit to make a codicil, he was equally unfit to forgive the debt." Where drunkenness has resulted in a confirmed derangement of the mind, inde- pendent of the immediate influence of drink, it may be properly regarded the same as general insanity produced by any other cause ; and in such case it ANALYSIS OP CONTENTS. XXV might be proper to require proof of restoration to sanity or a lucid interval, in order to execute a valid gift or will. But mere drunken fits, however frequent or long-continued, do not deprive the person of a disposing mind, whenever he ceases to be under the influence of the stimulus, or is so far restored to his senses as to know what he is about. He may then execute a valid will or gift. The natural and reasonable intiuence of the position of a wife towards her hus- band, resulting from fidelity, trust, and affection, with kind acts and for- bearance, is not to be regarded as unlawful or undue, unless intentionally resorted to for the purpose of producing an unjust disposition of the husband's estate. It must amount either to deception, or else to force and coercion, in either case destroying free agency. 2. Barrett v. Buxton, 2 Aiken's Vermont Reports, 167. 1826. p. 320-325. Drunkenness, which so far obscures the mind and memory as to render the person incapable of doing business understandingly, disqualifies one from making a valid contract, or doing any other valid act requiring judgment and discretion. But any slight degree of intoxication, caused by drink, which only slightly obscures the reason, will not have this effect. 3. Peck V. Cary, 27 New York Reports, 9. 1863. p. 326-347. Drunkenness, to incapacitate one to execute his will, must produce, at the time of execution, a degree of excitement depriving the person of such clear men- tal perception as to be able properly to understand the transaction. Com- monly, after the effect of the stimulus subsides, he will be entirely' competent to execute his will. The character of the instrument will be some guide to the state of the testator's " mind, in executing it. But in order to justify the conclusion of want of tes- tamentary capacity, it must be something more than unreasonable : it must be so violent a departure from what is just and reasonable as not to admit of satisfactory explanation short of referring it to disordered intellect. Effect of will being drawn by one in confidential relations with testator, upon its validity, discussed. What amounts to request by testator to witnesses to subscribe will. Effect of attestation clause in regard to important facts not within the recollec- tion of the witnesses, and how far it may be allowed to supply such defect. Note. p. 345, 346. Use of diffusible stimulants. Delirium of Disease, p. 346, 847. IX. LUCID INTERVALS. 1. Gomhault v. The Public Administrator, 4 Bradford's Surrogate Re- ports in the Gity of New York, 226. 1857. p. 347-362. Testamentary dispositions made near the time of undoubted mental perversion should be inspected with the closest scrutiny, especially where the progress of the disease was slow and insidious. XXvi ANALYSIS OF CONTENTS. Wills made during lucid intervals are valid ; but the proof of intelligent action must be clear and satisfactory. To this end the nature of the instrument and the character of the dispositions will often be of essential aid. Such a will ought not to be established, unless the provisions of it seem just and reason- able, and harmonize with the known, and formerly avowed, purposes of the testator, and with the state of his affections otherwise expressed. Note. p. 360-362. Taylor's Medical Jurisprudence and other comments on lucid intervals. X. EFFECT OF RELIGIOUS OPINIONS UPON TESTAMENTARY CAPACITY. Gass V. Gass, 3 ffumphrey's Tennessee Reports, 278. 1842. p. 362-367. Mere error or absurdity in regard to religious opinions, entertained by the testa- tor, will not be regarded as sufficient evidence of mental perversion to avoid a will. Where the testator believed that there were degrees in heaven ; that whatever circle of life a man lived in on the earth would be enjoyed by him in heaven ; that his pre-eminence there depended materially upon the amount of property he acquired here, and the charitable purposes to which he might have appro- priated it, — it was not regarded as evidence of insane delusion so as to hinder his making a valid will. But where the testator entertained the belief that the doipg some great charita- ble deed would advance him to a high state in heaven, it would be for the jury to decide whether this was an insane delusion, and whether the testator made his will under its influence ; and, if they so find, the will could not be maintained. It is impossible for any human tribunal to determine how far merely theoretical beliefs in regard to the future life are founded in delusion, since there is no mode of testing their accuracy. Effects of Modern Spiritualism upon Testamentary Capacity. p. 365-367. Robinson v. Adams, Supreme Judicial Court of Maine. {Not reported.) 1874. p. 367-390. Declarations of the testatrix are admissible to show the state of mind, either as to sanity or the state of her feelings towards those naturally entitled to her bounty, and they may be upon any subject inquired into in the course of the trial. Any witness examined in regard to the sanity of the testatrix may be asked whether he saw any thing peculiar in her conduct or conversation. How far he may express a general opinion in regard to sanity, Quasre. Where testamentary capacity and freedom in making the will is attempted to be impeached, on the ground of the testatrix's belief in spiritual communication with her deceased husband in regard to the provisions of her will, and also ANALYSIS OP CONTENTS. XXvii that her son-in-law possessed supernatural power to influence his wife, and that he was himself under the power of devils, thus inducing her to tie up her estate so that he should never have any benefit of it, the jury must determine how far these beliefs are founded in insane delusion or exercise undue influ- ence upon the testatrix in regard to her will, they being properly instructed as to what constitutes insane delusion or undue influence. Note. p. 384-390. Extended commentary upon the mode in which courts of law or equity feel compelled to treat assumed spiritual manifestations. P A E T II. FRAUD OR UNDUE INFLUENCE IN THE PROCUREMENT OF WILLS. I. BURDEN OF PROOF. Baldwin v. Parker, 99 Massachusetts Reports, 79. 1868. p. 393-397. II. EVIDENCE ADMISSIBLE TO PROVE FRAUD OR UNDUE INFLU- ENCE. 1. Shailer v. Bumstead, 99 Massachusetts Reports, 112. 1870. p. 397-409. In the trial of questions in regard to wills,- claimed to have been obtained by fraud or undue influence, the declarations of the testator, made either before or after the execution of the instrument, but so near the time as to afford ground of inference that the same state of mind existed as at the time of the execution, are receivable in evidence, as tending to show the mental capacity and condition of the testator at the time of the execution. But such declarations are not evidence to show the fact of fraud or undue influ- ence in obtaining the will, but only to show a state of mind peculiarly sus- ceptible to the influence of extraneous agencies. How far such declarations, from their terms and character, and the nearness of the time of their utterance to that of the execution of the will, may be said to have any fair and just tendency to show incapacity in the testator to resist the influence of attempts to draw him into the devices of those who are at- tempting to obtain an unjust control of his freedom of action in the matter; must be left to the discretion of the court presiding over the trial. It is impos- sible to give any definition, which would be found applicable in the majority of cases even. Declarations made after the execution of a will claimed to have been obtained by fraud or undue influence, where they import satisfaction with the provisions of the will, when the testator is not under any such influence, may be received. XXviii ANALYSIS OP CONTENTS. as tending to show that the instrument conformed to the unbiassed wishes and feelings of the testator. So also declarations of dissatisfaction with the will, made at any time after its execution, may be received, as tending to rebut any effect the mere continuance of the will in being, with the knowledge of the testator, might have in showing satisfaction with the same on his part. Declarations tending to show ignorance in the testator of the contents of the will may be received. [But should they not be such as show ignorance in fact of such contents, and not merely professed ignorance ?] The declarations of the executor, or of legatees under the will, are not admissi- ble to show its invalidity, since such persons are not, in the strict and techni- cal sense, parties to the suit, either sole or jointly with others. 2. Oomstock V. Hadlyme, 8 Connecticut Reports, 254. 1830. (See ante, p. 174.) 3. Miller v. Miller, 3 Sergeant ^ Rawh's Pennsylvania Reports, 267. ' 1817. p. 410-412. One has the right, by fair argument and persuasion, to induce another to make a will in his favor. Influence and persuasion may be fairly used ; but a will procured by circumvention will be set aside ; but when procured by honest means, by acts of kindness, attention, and even by importunate persuasion which delicate minds would shrink from, it would not be set aside upon this ground alone. 4. Taylor Y. Wilburn, 20 Missouri Reports,, 306. 1855. p. 412, 413. Where a will is attempted to be invalidated by proving that it was obtained by undue influence, the burden of proof rests upon the contestants. Where a will is attempted to be avoided by reason of the insanity of the testator, it is sufficient to show that the testator was of sound mind at the time he made the will, in order to meet the defence. But where the defence against probate rests upon the allegation that the will was obtained by undue influence, it will not be sufficient answer to it to show that no undue efforts were made by any one to influence the testator at the very time of the execution of the will. It must appear that no such influence, acquired by any one at any former time, was then Operating upon the testa- tor, and compelling him to execute such a will as he would not otherwise have made. The influence of a wife over her husband while in an infirm state of health and a weak state of mind, both of long continuance, is likely to be gradually acquired, and permanent in its character; and where an unjust will is the offspring of such influence, however silent or subtle its character, it cannot be maintained. ANALYSIS OF CONTENTS. XXIX 5. Marshall v. Flinn. 4 Jones' North Carolina Law Reports, 199. 1856. p. 413-416. All that is required to constitute testamentary capacity is, that the testator, at • the time of making his will, knew what he was doing, and to whom he was giving his property, and that they would be entitled to it, provided the forms of law were complied with. The only influence in procuring a will which the law condemns, or which destroys the validity of a will, is a fraudulent influence controlling the mind of the tes- tator so as to induce him to make a will which he otherwise would not have made. If a son has acquired such authority over a father as to direct him how to make his will, and exerts his power to produce a will in which he' is the principal legatee, it is undue influence, and the will cannot be supported. But proof that he may have exerted such influence, from bis position and relation to the testator, being both his son and supporter, will not be suflicient to inval- idate the will. 6. McMahon v. Ryan, 20 Pennsylvania State Reports, 329. 1853. p. 417. Undue influence in the procurement of a will must be a present, constraining, and operative power upon the mind of the testator, in the very act of making the testament. Influence, however improper, if long past and gone, and not shown to be in any way operative in producing the will, is no ground of its impeachment. 7. Eekert v. Flowry, 43 Pennsylvania State Reports, 46. 1862. p. 418-420. That is undue influence which amounts to constraint, which substitutes the will of another for that of the testator. It may be either by threats or fraud. It must be a present influence, acting upon the mind of the testator at the time of making his will. It must be something entirely distinct from mere weakness of mind. Ordinarily, undue influence arises from some interested motive, either for the benefit of the person attempting to exert such influence, or of some other in whom he feels an interest. And the absence of all such, or any other motive, raises a presumption against its existence. Where there is no legal evidence tending to show undue influence, it is error in the court to submit the Question to the jury. 8. Davis V. Calvert, 5 Gill 3^ Johnson's Maryland Reports, 269, 299-313. 1833. p. 420-434. The Maryland statute defines testamentary capacity as being that which will enable the testator to execute "a valid deed or contract." And this must XXX ANALYSIS OP CONTENTS. exist at the time of executing the will. But evidence of the testator's capacity, both before and after that time, may be given, from which the jury may infer his state of mind at the time of executing the will. The character of the provisions of the will may be considered as evidence of the testator's state of mind at the time of its execution. But it is not entitled to much consideration, except in extreme cases, or where there is other evidence^ of weakness of mind or undue influence. All the surrounding circumstances as to the testator's property and family may be shown in connection with the provisions of the will, to enable the triers to form a just opinion of their reasonableness. Honest and moderate intercession or persuasion, or flattery, unaccompanied by fraud or deceit, or not connected with fear or deception, will not invalidate a will. But influence and importunity may be carried to such an extent, even short of fraud, as to defeat the will thereby obtained. The testator should enjoy full liberty and freedom, and have the power to with- stand all contradiction and control. Undue influence, so long as it continues to operate, will avoid a will which is the result of it. No will can be upheld when it is induced by fraud. And all circumstances tend- ing to show fraud, in connection with other testimony, should be received de bene esse. Extended comments upon the evidence and its tendency and force. Comments upon the charge to the jury and its application to the testimony. Note. p. 432-434. Undue influence. Small v. Small, 4 Greenleaf's Maine Reports, 222. 9. Mliotfs Will, 2 J. J. MarshaWs Kentucky Reports, 340. 1829. p. 434-439. One may be capable of making his will, although advanced in life and greatly enfeebled both in body and mind, so long as he remains capable of taking an understanding survey of all his estate, and of dictating its disposition in a con- nected and intelligible manner, according to his wishes, without being prompted or swayed by direct intermeddling from officious or designing relatives or pre- tended friends. And the mere fact that the testator relied almost exclusively upon the assistance and advice of his son in all business matters, and might easily have been influ- enced by him, is not sufficient to invalidate the will. It must be shown, either from positive testimony, or the unjust and unreasonable provisions of the will, or from some other satisfactory proof, that such influence was, in fact, unduly exercised in procuring an unjust disposition of the estate. Note. p. 438-489. Feebleness and undue influence. Harrison's Will, 1 B. Monroe, 361. 1841. jiNALTSIS OP CONTENTS. XXXI 111. WILLS PROCURED THROUGH THE INFLUENCE OF UNLAWFUL RELATIONS CANNOT BE MAINTAINED. 1. Dean v. Negley, 41 Pennsylvania State Reports, 312. 1861. Same Case, 1 American Law Register, New Series, 283. p. 439-442. While the law recognizes the natural and ordinary, influence of the lawful rela- tions of life in procuring the benefactions of others sustaining correlative relations to them, either by will or inter vivos, it does not regard a will pro- duced by the influence of illicit relations as valid. Where an unlawful relation existed between the testator and those who are bene- fited by his will, the law presumes such provisions of the will to result from the influence of such unlawful relation, and pronounces the will, therefore, to be presumptively unlawful ; but the question must be decided by the jury. Note. p. 442. Effect of unlawful relations. 2. Monroe v. Barclay, 17 Ohio Reports, New Series, 302. 1867. p. 442-450. Undue influence or fraud, to invalidate a will, must be shown to have had some effect upon the testator in producing the very act of the will. It must impose some restraint upon him, whereby he is unable to exercise his free will in dis- posing of his property. How far the influence of an unlawful relation between the testator and another destroyed the freedom of the will of the former, is a question of fact to be determined by the jury. To constitute undue influence in procuring a will, it must overcome the free agency of the testator. Note. p. 460. Effect of unlawful relations. IV. EFFECT OF WILL BEING WRITTEN OR DICTATED BY PRIN- CIPAL BENEFICIARY. 1. Tyler v. Gardiner, 35 New York Reports, 559. 1866. p. 451-472. The burden of proving that a will was obtained by undue influence rests upon the contestants. Where a will is produced by false representations made to the testatrix, either as to those who, standing in the same relation to the testatrix as the beneficia- ries under the will, have been provided for in a very much inferior manner, or as to the merits and good conduct of the actual beneficiaries, it cannot be maintained. A will so procured is fraudulent. As important evidence under such an issile, it is proper for the triers to compare the former testamentary intentions of the testatrix with those ultimately adopted by her, and also to consider the reasonableness of such ultimate pro- XXXU ANALYSIS OP CONTENTS. The position and conduct of the principal beneficiary toward the testatrix are also important matters bearing upon such issue. The fact that the change in the testamentary dispositions is made at the last mo- ment before the decease of the testatrix ; that all others of the family and near friends of the testatrix were excluded from being present at the execution of the final will, and that it was dictated exclusively by the principal beneficiary, and contains many statements of fact and suggestions, which are either false, or, having no just bearing upon the subjects upon which they are introduced, cannot fail to have an important bearing upon the question of the freedom of action of the testatrix. Note. p. 471, 472. Effect of dictation and domination produced by family relations. 2. Daniel v. Daniel, 39 Pennsylvania State Reports, 191. 1861. p. 473-479. Testamentary capacity implies that the testator fully understands what he is doing, and how he is doing it ; he must know his property, and how he wishes to dispose of it among those entitled to his bounty. It is not necessary he should collect all these in one review. If he understands, in detail, all he is about, and chooses, with understanding and reason, between one disposition and anoiher, it is suflicient. Where the testator is in a very depressed state of health, and proportionally weak and confused in his mind, and the will is induced by the action of the principal beneficiary, to the exclusion of others standing in the same relation, it will be regarded as the result of undue influence, unless there is satisfactory evidence to the contrary. Refinements in the form of questions and answers in jury trials illustrated and condemned by Woodward, J. There is no legal or intelligible difference between a witness saying the testator was "capable of understanding the will" or " making the will." No jury could be differently affected by the difference in the answers. 3. Harvei/v. Sullens, iQ Missouri Eeports, 14:7. 1870. p. 480-485. Where the testatrix was in extremis, and so sick and worn out as to become a mere passive instrument in the hands of others, and the will was drawn up by one in confidential relations with the testatrix, and gives five-sixths of the estate to this person, who was a stranger in blood and afiinity, the remainder only bein.T distributed among the relations of the testatrix, who were poor, and towards whom she entertained friendly feelings, it must be considered that the will was obtained by undue influence, and therefore cannot be sus- tained. Where the party procuring the will must be regarded as consciously obtaining an unjust will, either for himself or others, and that^the result was obtained through the agency of other minds than that of the testatrix, it cannot be supported. In all cases where the party writing or procuring the will derives an unequal advantage under it, the court should scrutinize the evidence carefully, and not .ANALYSIS OP CONTENTS. XXxUt sustain the will until all grounds of suspecting improper influence are re- moved, and it clearly appears that the will was the act of a free and capable person. Where the will is unjust towards the relatives of the testatrix, and would not have been executed -but for the influence of the party principally benefited by it, the jury may properly be charged that it cannot be supported. So, too, it is proper to charge the jury in such a case that, if the testatrix was coerced to sign the will by force, fraud, or deceit practised by the principaj beneficiary, it cannot be maintained. V. THE DECLAKATIONS OF THE TESTATOR FOR MANY YEARS,' AND UP TO THE TIME OF MAKING A "WILL, IN CONFLICT THERE- WITH, ADMISSIBLE TO PROVE TESTAMENTARY INTENTIONS, . AND FOR THE PURPOSE OF COMPARING SUCH INTENTIONS WITH THE ACTUAL PROVISIONS OF THE WILL. 1. Neel V. Potter, 40 Pennsylvania State Reports, 483. 1861. p. 486, 487. The declarations of the testator for many years before and up to the time of making his will, of testamentary intentions wholly inconsistent with the actual provisions of his will, in connection with other proof of the exercise of undue influence by the beneficiaries under the will in its procurement, is admissible upon the issue whether the will was so obtained. Note. p. 487. Declarations of testator, when evidence. 2. Boylan v. Meeker, 4 Butcher's New Jersey Reports, 274, 276-303. 1860. p. 487-501. One who has capacity to make any will, has the legal right to make an unequal, unjust, or unreasonable one, and it should not be p;ronounced against on these rounds, alone. Whelpley, J. The will may, upon its face, carry clear evidence of being the offspring of an _ unsound mind. Whelpley, 3. ~ r rDeclarations of the testator may be received upon the issue of want of testanien- tary capacity. Whelpley, J. But neither the testator's omission to speak of the will, nor his declarations tend- ing to show that he was, in fact, ignorant of its existence, are competent to show that fact in answer to positive proof that he executed it. Nor may such declarations be received to prove that the will was a forgery, or that it was obtained by fraud, in inducing the testator to execute the will, supposing it to be some other paper. - , . .^ The declarations of a deceased witness to a will, tending to impeach the will or himself as a witness, cannot be admitted in favor of the contestapts. c XXX17 ANALYSIS OF CONTENTS. VI. HOW FAR THE UNNATURAL CHARACTER OP THE WILL IS EVIDENCE OF IT BEING PROCURED BY IMPROPER INFLUENCE. Kevill V. KeviU, Court of Appeals, Kentucky, 1866, 6 American Law Begister, New Series, 79. p. 501-505. Although the unnatural character of the will may not alone be sufficient to justify the presumption, or inference, that it was the result of undue influence, it is always entitled to consideration, as tending to show either testamentary in- capacity or undue influence. Note. p. 503-505. How far lawful relations may be allowed an influence, whose results are unjust and unequal. Vn. EFFECT OF WILL BEING WRITTEN OR DICTATED BY PERSON SUSTAINING AN INFLUENTIAL RELATION TO THE TESTATOR, AS BY A CLERGYMAN, GUARDIAN, PARENT, OR ANY OTHER RELATION OF SUPERIORITY. In re Wekh, 1 Eedfield's Surrogate Reports, 238. 1849. p. 506-514 Where a testator retains sufficient mind to make a valid will, when left wholly free from all extraneous influence, he may still be in so infirm a state as to require vigilance on the part of courts to protect the free exercise of his tes- tamentary capacity. In such cases, where the will is dictated by an interested party, sustaining towards the testatrix the relation of spiritual adviser, and where large bequests are made to religious objects, it raises such a presumption of fraud and undue influence that it becomes necessary, in order to establish it, to give very clear proof to the contrary. Where part only of the will is the result of undue influence or fraud, the re- mainder may be established by the court. Note. p. 614. Distinction between influence in regard to wills and other in- struments, or contracts. VIII. THE EFFECT OF THE TESTATOR BEING UNDER GUARDIAN- SHIP, AND THE WILL CONTAINING BEQUESTS IN FAVOR OF THE GUARbLAN. Breed v. Pratt, 18 Pichering's Massachusetts Reports, 115. 1836. p. 515-517. One under guardianship, as non compos, is prima facie incompetent to make a will ; but if he be really of sound disposing mind and memory, he may make a valid will. ANALYSIS OF CONTENTS. XXXV Where such a one gives a legacy to his guardian, and appoints him executor, it is competent for the guardian to show the existence of testamentary capacity ; but the proof must show beyond reasonable doubt that the testator had both such testamentary capacity, and such freedom of will and action, as are requisite to render a will valid. Note. p. 517. Effect of relation of guardian and ward as to wills. Jenckes V. Probate Court, 2 Rhode Island Reports, 266. IX. THE EFFECT OF INDUCING THE TESTATOR TO DESTROY HIS WILL BY IMPROPER INFLUENCES. Button V. Watson, 13 Georgia Reports, 63. 1853. p. 518-520. Undue influence exercised upon a testator, to compel or induce him to destroy an existing valid will, renders the destruction inoperative, as a revocation. The rule as to the extent of such influence defined below. Where this result is brought about by the denunciations and threats of one interested, on behalf of those not provided for in the will, as he- thinks they should be, those who propound the will for probate are not obliged to take the testimony of such person, but may rely upon his declarations connected with his acts, in procuring the destruction of the will instead. If a testator, near the time of his death, while in a very enfeebled state both of body and mind, is induced, by fear, or favor or affection, or any other cause unduly exercised, to destroy his will, and such undue influences operated as a pressure and restraint upon the deceased, under the circumstances in which he was placed, to take away his free and voluntary mind and will, the testament is not thereby revoked, but remains in force, as before. Note. p. 620. Effect of undue influence in inducing testator to destroy his will. Chandler v. Ferris, 1 Harrington's Delaware Reports, 454. X. THE EFFECT OF FRAUD OR UNDUE INFLUENCE IN PROCURING THE WILL, OR ANY PORTION OF IT, AND HOW FAR IT EX- TENDS IN AVOIDING THE WILL. Florey v. Florey, 24 Alabama Reports, 241. 1854. p. 521-524. Fraud or undue influence in the procurement of a particular -legacy will not avoid the other portions of the will, to which it does not extend. But where it extends to the very act of making the will, the whole is invalid. Note. p. 621-624. Attempt to define and classify the different kinds of in- fluence which the law justifies or condemns in the production of wills. "XXXTi ANALYSTS OP CONTENTS. PART III. ADMISSION OF ORAL TESTIMONY TO EXPLAIN OR AID IN THE CONSTRUCTION OF WILLS. ,1. THE EXTENT TO WHICH EXTRINSIC OR ORAL EVIDENCE IS ADMISSIBLE IN THE CASE OF WILLS. Mann v. Executors of Mann, Court of Chancery, 1 Johnson's Chancery Reports, 231. 1814. p. 527-532. Parol evidence cannot be admitted to supply or contradict, enlarge or vary, the words of a will, nor to explain the intention of the testator, except in two specified cases : 1. Where there is a latent ambiguity, arising dehors the will, •. as to the person or subject meant to be described ; and 2. To rebut a result- ing trust. Construction of the word " moneys " in a bequest of all the rest, residue, and re- mainder of the moneys belonging to the estate of the testator at the time of his decease. Same Case, Court of Errors, 14 Johnson's New York Reports, 9. 1816. p. 532-539. Note. p. 537-539. To what extent and in what cases extrinsic evidence is ad- missible in aid of the construction of wills. 11. IN ORDER TO PLACE THE COURT IN THE POSITION OF THE TESTATOR, TO ENABLE IT TO JUDGE MORE CLEARLY OF THE TESTATOR'S INTENTION; FALSA DEMONSTRATIO NON NO GET. 1. Kurtz y. .Hihner, 10 American Law Register, New Series, 93. 1871. Supreme Court of Illinois, Same Case, Illinois Reports, p. 539-547, Oral testimony is. not admissible to show directly the testator's intention. And where the will devised land as being eighty acres in a particular township, range, section, and number, and it appeared that the testator owned no land precisely answering the description, it was held not competent for the devisee to prove by oral testimony that the testator did own eighty acres of land, cor- responding, in all particulars, in its description to that in the will, except that it was in section thirty-three instead of thirty-two, and that he owned no other eighty-acre tract in the township, in order to enable the court to decide, ANALYSIS OP CONTENTS. XXXVii as matter of construction, that the testator must have intended to devise the land in section thirty-three, and the court thereupon declared the devise void. Note. p. 542-547. Extended discussion of the grounds upon which extrinsic evidence is admissible to correct errors in description. 2. Winkley \. Kaime,Z2 New Hampshire Reports, i%9i. 1855. p. 547-552. Any portion of the description of the devisee or of the thing devised, which is inapplicable, may be rejected, and the devise still be upheld, provided enough' remain to show clearly the person or thing intended. Note. p. 551, 652. Extension of next preceding note. m. ORAL TESTIMONY ADMISSIBLE TO DEFINE THE STATE OF A SPECIFIC BEQUEST AND WHAT THE TESTATOR, BY HIS CONV DUCT, INDICATED AS EMBRACED IN SUCH BEQUEST, IN ORDER TO ENABLE THE COURT MORE UNDERSTANDINGLY TO APPLY THE WORDS OF THE WILL TO THE SUBJECT-MATTER OF THE BEQUEST. 1. Spencer Y. Higgins, 22 Gonnecticut Reports, 521. 1853. p. 552-556. Where the testator bequeathed to his wife " all the property she brought with her at our intermarriage," it was held competent to show that the testator treated the avails of certain notes, paid and deposited in the savings bank, as em- braced in this bequest, both as to the principal and interest ; also that the bequest was specific, and carried both the principal and interest. 2. Wootton V. Redd's Executors, 12 Grattan's Virginia Reports, 196. 1855; p. 556-574. The court, in the construction of wills, may properly make the amplest allowance for unskilfulness in drawing the will ; may disregard all technical formalities, and seek the testator's intention by any disarrangement or new juxtaposition of the different portions of the will, or any particular part of it. The court should, by the aid of extraneous testimony, seek to place itself in the position of the testator. For this purpose proof is admissible of the situation of the testator, the state of his family and property, and indeed of all facts known to the testator which may be supposed to influence him in the disposi- tion of his property, embracing -all the surrounding circumstances at the time of making the will. But, if in the end the intent of the testator fails to be reached with reasonable certainty, the bequest must fail. Direct evidence of the intention of the testator is not admissible, as that he stated to the witness his intention to give the devisee what he claims, or that he had so done by his will. XXXVlll ANALYSIS OP CONTENTS. In fixing the construction of the will, every word should have some force assigned it, and, if possible, its natural and ordinary import. In the description of the devisee, or the subject-matter of the devise, any false or inapplicable par- ticulars may be rejected, without avoiding the devise, provided enough remain to make the import clear. But restrictive words cannot be rejected, and the general words allowed to prevail. But small aid can be derived from comparison of different bequests. 3. Soman Catholic Orphan Asylum v. Emmons, 3 Bradford's Surrogate Eeports, 144. 1855. p. 574-578. A court of construction may, by means of extrinsic evidence, place itself in the situation of the testatrix, in view of all the facts existing at the time of making the will, so as to judge of her intention, as expressed on the face of the instrument. Where it appears from extrinsic evidence that the testatrix had not, at the date of the will, any estate answering the description given in a specific bequest, other evidence may be resorted to, for the purpose of showing from all the surrounding circumstances how the testatrix must have used the words, so as to apply them to some similar property belonging to the testatrix's estate. For this purpose it is not competent to show the declarations of the testatrix as to her intention in the use of the terms ; but it must be made out by construc- tion what the words of the testatrix, found in the will, must embrace, with reference to her whole estate and all the surrounding circumstances. Where the testatrix bequeathed to the plaintiff " all future dividends of all her shares of the capital stock of ' The Mechanics' Bank, so usually called, in the city of New York,' " and it appeared that, at the time of making the will and of her decease she owned one thousand dollars in the capital stock of the City Bank, New York, but none in the Mechanics' Bank, and that she had never owned any in the latter bank, it was held the bequest must be applied to the shares in the City Bank, so owned by the testatrix. " This is not a case of ambiguity at all, but one of misdescription " solely. If the testatrix "had possessed shares in several banks, there would have been difficulty in the application;" ..." but having shares in only one bank, the rejection of part of the description makes the bequest applicable only to those shares." " It was a rule of the civil law that a legacy should not perish by reason of a false description, ybZsa demonstraiione legatum non perimi." 4. Domestic and Foreign Missionary Society's Appeal, 30 Pennsylvania State Reports, 425. 1858. p. 578-583. A bequest to "the mission and schools of the Episcopal Church, about to be established at or near Port Cresson," was made by the testator. Port Cres- son was a place in Western Africa, named iii honor of the testator, where the appellants had established a mission about the date of the bequest ; and this was known to the testator and approved by him. There was not, either at ANALYSIS OP CONTENTS. XXXIX the date of the bequest or at the decease of the testator, any other mission or school of the Episcopal Church in that vicinity. There being no other claim- ant except the appellants, the bequest was, upon the construction of the will, by the aid of the above facts, decreed to the appellants. In order to apply the will to the intended subjects of its bequests, it is competent to receive oral testimony of the facts and circumstances known to the testator at its date in regard to the state of his property and the objects of his bounty, so as to place the court, as nearly as possible, in the precise condition in which the testator was at the time he made his will, so that it may apply the words used by him to the persons and things thereby intended to be described by him. Such a bequest for charity may be upheld whenever the court can ascertain, with reasonable certainty, the intended object of the testator's bounty. IV. DEFINITION OF SUCH A LATENT AMBIGUITY AS MAY BE SOLVED BY PEOOF OF INTENTION. 1. Tucker Y. Seaman's Aid Society, 7 Metcalfs Massachusetts Reports, 188. 1843. p. 583-597. In order to create a latent ambiguity in a will, which may be solved by oral tes- timony of the intention of the testator, it must appear that the words used therein describe two or more persons or things with such legal certainty that, in the absence of any other claim, either might be regarded as sufficiently identified. Unless this be shown, there is no foundation for the admission of such testimony. Note. p. 594-597. Eeviewing the recent cases arid some others. 2. Bible Society v. Pratt, 9 Allen's Massachusetts Beports, 109. 1864. p. 597-604. A bequest of " all moneys due me at the time of my decease from the Dedham Bank, Dedham," will not carry moneys of the testator deposited in the " Dedham Institution for Savings," usually known as the "Dedham Savings Bank," there being in the town another bank called the " Dedham Bank." And extrinsic evidence is not admissible to prove that, at the time of his decease, the testator had money on deposit in the " Dedham Savings Bank," and never had any money deposited in the " Dedham Bank." Note. p. 600-604. Containing a summary of the present state of the law. xl : ANALYSIS OF CONTENTS; PAET IV. THE EXTENT TO WHICH EQUITY WILL ENFOECE STIPULATIONS MADE TO INDUCE ANY ONE TO OMIT A LEGACY, OR THE MAKING OF A WILL, IN FAVOR OF COMPLAINANT. Williams Y. Fitch, 18 Mw York Seports, 54:7. 1859. p. 607-610. Where an unmarried daughter had funds in the keeping of her father, as her trustee, which she intended to bequeath to her nephew, and the father, in con- sideration of having the money in his hands and that his daughter would refrain from executing a will in favor of her nephew, promised her that in the event of her death he would hold 4he funds in his hands as trustee for the nephew, then an infant, seven years of age, it was held, that after the decease of the daughter the father must be regarded as holding the estate as trustee' for the nephew ; and that he may be, or, in case of his decease, his personal representative may be, compelled to pay the same to the nephew, as money had and received to his use. KoTE. p. 609-610. Giving a brief view of the decisions upon the questions involved in this nart. involved in this part PART V. THE EXECUTION OF WILLS. I. WHAT IS REQUISITE TO THE SIGNING OF THE WILL BY THE TESTATOR. 1. Adams V. Field, Ex'r, 21 Vermont Reports, 256. 1849. p. 613-618. It is n'ot indispensable that the testator should actually make his signature in the presence of the witnesses. It is sufficient if he acknowledges the instrument to be his will, or to have been executed by him, in the presence of the witnesses. And this will be sufficient, even when the instrument contains no formal signature, but begins in the name of the testator, " I, A. B.," &c. And where the will is written by another, beginning, '-J, A. B.," &c., if the testator acknowledge it to be his will, in the presence of the witnesses, and desire them to attest it as such, it will be sufficient. ANALYSIS OF CONTENTS. xlj; 2. Dewey v. Dewey, 1 Metcalf's Massachusetts Reports, 349. 1840. p. 619-624. The Massachusetts Statute of Wills is the same as the English Statute of Frauds, in regard to wills. It is not required by either that the testator sign the will in the presence of the witnesses. The acknowledgment of his signature, or that the instrument is his will, with a, , request to the witnesses to attest it, is sufficient. Nor is it necessary that the witnesses all be present at the same time; they may attest the instrument at dififerent times. Nor does it seem to be required that the witnesses should see the testator's signa- ture upon the will, or know that the paper is his will. [But this last is more questionable.] The acknowledgment may be by acts, or by assent to the acts or declarations of others, as well as by the express declaration of the testator. Note. p. 622-624. Defining the law of this chapter, and embracing the case of Dean v. Dean, 27 Vermont Reports, 746-748. 3. Sarah Miles' Will, 4 Dana's Kentucky Reports, 1, 1836. p. 624-627. Under the Kentucky Statute of Wills, which is the same as the English Statute of Frauds, in its requirements in the execution of wills for the devise of lands or slaves, it is a sufficient execution of the will by the testatrix, that her name appear in the body of the will, although the will was drawn up by another, at her request, and read over to her, and approved by her, in the presence of the witnesses, as her will, and as such attested by the witnesses, at her request, she failing to sign it for want of strength, at the moment of its authentication. II. WHAT IS REQUIRED TO CONSTITUTE A REQUEST BY THE TES- TATOR TO THE WITNESSES TO ATTEST THE WILL. Coffin V. Coffin, 23 New York Reports, 9. 1861. p. 627-634. Undue injluence. Where the testator was aged and somewhat infirm, but lived nearly three years after the will was executed, and attended to such affairs as he had to transact, and at the date of the will was in his usual health, and there was nothing, either in the provisions of the will, or the manner of mak- ing the same, to justify any certain inference that it was not in harmony with, his own well considered wishes and intentions, the court considered that it should be upheld, notwithstanding the existence of circumstances operating, to some extent, to excite apprehension that the testator might have been, in a degree, influenced by partiality towards some of the legatees and by un- usual reserve towards others. 1. The effect of secrecy. The fact that his wife, whom he had married late in life, and for whom he made a suitable provision in his will, was not at home on the day purposely selected by the testator for the execution of his will, on account Xlii ANALYSIS OP CONTENTS. of her absence, and that she was not informed of the fact of his having made his ■will, and that the instrument was drawn by the testator's nephew, according to previous arrangement by the testator, and that this nephew was made executor and received a moderate legacy under the will, are no sufficient grounds to infer that any improper influence was exercised ovefr the testator, especially when all the arrangements appear to have been planned and directed by the testa- tor, without any prompting or suggestions of others, and were natural and just. 2. Effect of preferences shown in the wUl. Notwithstanding the provisions of the ■will, especially the residuary and reversionary bequests, clearly indicate a preference for those of his own kindred, on the part of the testator, still, inasmuch as nothing appears in the will which might not fairly be accounted for, according to sentiments and affections known to exist in common life, and which often influence men in their testamentary acts, the court considered they had no right, without further "evidence, to infer that the testator's mind was not fully and freely expressed. Declaration by testator recognizing the wiU. All that is necessary to constitute an acknowledgment, on the part of the testator, that he recognizes the instru- ment as his will, even where the statute specially requires publication, is that in reply to a question by one of the witnesses, addressed to the testator, if the testator wi.sbed him to sign or witness the paper as his will, he should answer in the affirmative, in the presence of both (or all) the witnesses re- quired by law to attest the execution of the will. Bequest to witnesses to sign. No particular form of words is required to satisfy the requirement of the statute, that all the witnesses must attest the testator's execution of the will, in his presence and at his request. Any communication, importing such request, addressed to one of the witnesses, in the presence of the other (or others), which, by just construction of the circumstances, may be regarded as intended for both (or all), is sufficient. III. PROOF OF DUE EXECUTION OF WILL BY TESTATOR. EFFECT OF ATTESTATION CLAUSE. Nelson v. McGiffert, 3 Barbour's Ohancery Reports, 158. 1848. p. 634^638. Proof of formalities. Where one of the subscribing witnesses testified to all the formalities required in the execution of the will, it is sufficient, although the other did not remember it, or inclined to believe, it did not occur. And this is especially so, where the attestation clause is regular, recapitulating each particular required. Acknowledgment of signature ; request to witnesses to sign. No particular form of words is required to be used by the testator, in the acknowledgment of his signature or in communicating his request to the witnesses to attest his signa- ture by subscribing their names. It is sufficient if the formalities required by the statute are complied with in substance. [In fact, if it appear, as in this case, that the parties all understood, that the meeting was for the purpose of authenticating the execution of the will by the testator, any formal acknowl- edgment of the signature, or any request for the witnesses to sign, in attes- tation of the execution, would scarcely be expected.] ANALYSIS OP CONTENTS, xliii Declaration of testator. The declaration of the testator, many years afterwards, that he had been improperly influenced to execute the will, in which he had not done justice to his children, is not competent evidence of the fact. What amounts to revocation. A will executed subsequently to the execution of another, will not have the effect to revoke it, unless it contain a revocatory clause, or is incompatible with the former will, and then only to that extent. [It is almost ef daily occurrence, in the English Court of Probate, to admi- both the former and subsequent will to probate, after the decease of the testa- tor, as constituting, together, the last will and testament of the decedent.] IV. WITNESSES MUST WRITE THEIR NAMES OR MARKS AT THE TIME OF ATTESTATION. Chase v. Kittredge, 11 Allen's Massachusetts Reports, 49. 1865. p. 638-651. It is not sufficient attestation, by the witnesses, of the execution of a will by the testator, for them to then and there acknowledge, in the presence of the tes- tator, their signatures, made at a former time, in anticipation of the execution by the testator. They must subscribe their names, in the presence of the tes- tator, in attestation of the execution by him. V. PROPER OFFICE AND EFFECT OF THE ATTESTATION CLAUSE IN THE WILL. DUTY OF WITNESSES. Chaffee v. Baptist Missionary Convention, 10 Paige's New York Chancery Reports, 85. 1843. p. 651-655. An attestation clause, showing all the requisites of the law, for the due execution of the will, to have been duly observed, is not indispensable. The witnesses may supply any defect, in that respect, by their testimony. Indeed, any such defect may be supplied by intendment fi"om circumstances, after the witnesses have deceased [or when they do not recollect the fact] . And even where the attestation clause enumerates all the requisites, as having been complied with, the contrary may be shown by the witnesses. But it is desirable to have a perfect attestation clause, as presumptive evidence of the requisite facts, in case of the decease or want of recollection of the witnesses, as well as to show that the person directing the execution of the will' knew the proper requisites, as the foundation for presuming that he would, in that case, naturally have seen to their performance. It is a good practice to have the attestation clause enumerate all the requisites to the valid execution of the will, and also to have it read over to the wit- nesses before signing it, to enable them to know what they attest and fix it in memory. And where there is any reason to question whether the testator knew of the con- tents of the will, as when he signed by mark [or is incapable of reading iliv.. ANALYSIS OF CONTENTS. , himself, from blindness or for any other cause], to ha^e the will read, in his hearing and that of the witnesses, at the time of execution, and have that fact appear in the attestation clause. For in some way, either by inquiry of the testator or otherwise, the witnesses, should be assured that the testator knew the contents of the will, and was of sound mind and memory. But these precautions are not indispensable. The facts may be shown in any other mode satisfactory to the triers. All the statutory requirements must be complied with in the execution of a valid will, and the burden of showing it rests upon those wishing to establish it. But all these facts may be [implied] or shown from circumstances, or the testimony of other witnesses, where from any cause the testimony of the sub- scribing witnesses cannot be had, or they fail to recollect what did occur at " the time of the execution of the will [and even when they testify that some important requirements were not complied with] . The mere recognition of the completed instrument by the testatrix as her will, in the presence of the witnesses, is not a compliance with the requirements of the New York statute. She must, in some way, either by name or mark, sign the will in the presence of the witnesses, or acknowledge the signature as made by herself, or by some one else by her express direction and in her presence. For want of proof of this latter requirement the will was declared not duly executed. VI. PROOF REQUIRED TO ESTABLISH THE DUE EXECUTION OF THE WILL. Jauncey v. Thome, 2 Barbour's New York Chancery Reports, 40. 1846. p. 655-678. Where the statute in regard to the execution as well as the proof of the execution of wills is altered, after the making of a will and before its probate, the re-- quirements in regard to the making of the will, in force at the time of its execution, must be observed, and those in force at the time of the probate must be observed in respect to the proof. It is not indispensable to the probate of a will, that all the witnesses within the reach of process should be able to testify that every requirement of the law, in force at the time the will was made, was duly complied with, and that the testator was of sound mind. There is good authority for establishing a will in opposition to the testimony of all the witnesses upon this latter point. The acknowledgment of the testator in the presence of the witnesses that he executed the will, and wishes them to attest it as his will, is of the same effect as the actual signing in their presence. It was not necessary, under the English Statute of Frauds, that the witnesses should attest the will in the presence of each other. It is not important that the testator should acknowledge, in the presence of the witnesses, that he actually signed the will, but only that his name appear upon the instrument, and he acknowledge it to the witnesses as his will. The English courts have held that it is not essential that the witnesses should ANALYSIS OP CONTENTS. xlv understand, at the time of their attestation, that the instrument is a will, or that the maker desires it to be attested by them as such. But the court here regard that as requisite under the English Statute of Frauds, and that it is also required by the current of American authority. The presumption in favor of the due execution of the will, when it appears on its face to possess all the legal requisites, is such that it may prevail over the testimony of all the witnesses to the contrary, where so far corroborated by circumstances, or other testimony, that the court is satisfied such was the fact. Note. p. 674-678. Embracing the case of Peebles v. Case, 2 Bradford's New York Surrogate Reports, 226, 240, and discussing the law of the general sub- ject of this part. VII. NUNCUPATIVE WILLS. 1. Prince v. Hazleton, 20 Johnson's Reports, 502. 1822. p. 679-688. A nuncupative will, since the time of Henry VIII. in England, has been allowed to be made only when the testator was in extremis, and after the testator is so near his decease that he durst not delay to make his will in writing, in the ordinary mode, lest death might overtake him. -The English Statute of Frauds, 29 Car. II., has so far restricted the right to make, and the mode of making, nuncupative wills, that it has not since that date been practisedjn England, or in New York, where that statute has been re-enacted, except " where the testator is surprised by sudden and violent sickness." And in Connecticut a similar rule is adopted. There is a great similarity between nuncupative wills and gifts mortis causa ; which latter have been defined, as where a man lies in extremity, or being sur- prised by siclmess, and not having an opportunity of making his will, but lest he should die before he could make it, gives away personal property with his own hands. If he dies, it operates as a legacy ; if he recovers, the property reverts to him. Hence the conclusion that a nuncupative will is not good, unless it be made when the testator is in extremis, or overtaken by sudden and violent sickness, and has not time or opportunity to make a written will. This will not apply to any lingering disease, however- fatal, until at least the approach of the last extremity ; since, ordinarily, one in such a disease is under na_stress of necessity.to make such a will or none at all." . It must cpme to the last day, if not to the last hour, in such a lingering sickness, to justify making a nuncupative will. If the testator recover, even when he has made a nuncupative will in all due formality, it becomes of no force. [But see the English Statute of Frauds, 29 Car.'ll. c. 3, § 20.] Xlvi ANALYSIS OP CONTENTS. 2. Mi parte Thompson, 4 Bradfordi's Surrogate Reports, 154. 1856. p. 688-694. Nuncupative wills were held valid at common law, but were required to be made in the last sickness, at an early day. Such wills, made by soldiers or seamen in actual service, are excepted from the provisions of the English Statute of Frauds, and from the New York Revised Statutes. Nuncupative wills made by soldiers and seamen in actual service are the only wills of that character now recognized as valid in the State of New York. This kind of will is borrowed from the Roman civil law, and is restricted to those soldiers and seamen who are in actual service. It applies to all ranks and grades in the service. A cook, on board an Atlantic steamer, lying in the harbor at Bremen, is entitled to make such a will. No particular number of witnesses is required to the validity of such a will, if the court are satisfied with the proof. Note. p. 694. 3. Gould V. Safford's Estate, 39 Vermont Reports, 498. 1866. p. 694r-700. The declaration, made by a soldier, in order to constitute a testamentary dis- position in the form of a nuncupative will, must have been made animo testandi, or for the purpose of having the very words uttered Ijy him at the time, con- stitute his will. The testimony of one witness is all that the law requires to establish the nun- cupative will of a soldier in the Probate Court, either of first instance or upon appeal, provided the testimony is satisfactory to the court. Statement of the facts in the case, which the court held to constitute a good military testament. A soldier who falls sick upon the march, and is, of necessity, allowed to fall out and wait for returning strength, but who dies soon after he is carried into hos- pital, may properly be regarded as in actual military service, or, as the civil law expresses it, in expeditione. VIII. GIFTS MORTIS CAUSA. 1. Meach Y.Meach, 24, Vermont Reports, b2\. 1852. p. 701-713. Real estate cannot pass as a donatio mortis causa. A deed of lands executed to the wife by the husband, at the point of death, for the purpose of making a disposition of his estate, to become operative after his death, cannot be sup- ported as a deed, nor as a will, not having three witnesses, as required by the statute in case of wills ; nor as a settlement of property upon the wife, made during coverture. ANALYSIS OP CONTENTS. Xlvii A donatio mortis causa is valid, even where it embraces all the testator's personal estate, of large amount and value. It is no ground of objection to the validity of a gift mortis causa, that it is made by the husband directly to the wife, without the intervention of a trustee. These gifts must be made during the last sickness of the donor, and when he does not expect to recover. Such gifts are revocable during the life of the donor, and are entirely avoided by his recovery from the sickness or his surviving the donee. There must be an actual or constructive delivery of the subject of the gift by the donor, or his agent, during the life of the donor, to the donee, or his agent or trustee. Where a gift mortis causa is made in writing, it would seem not essential to its validity that the writing should^ in terms, embrace every requisite to the per- fection of the gift. And if that were to be held essential, a court of equity might perfect the instrument, by the aid of oral proof of the facts and circum- stances attending the transaction, if such was clearly shown to have been the intent of the donor, and the requisite facts to have existed. After the decease of the donor, his personal representative is regarded as stand- ing in the light of a trustee for the donee, so far as any possessory rights, or any right of action, in the subject of the gift, is concerned. A bond and mortgage, or any other chose in action, whether negotiable or not, f, may constitute the subject-matter of a good gift mortis causa, and pass by de- livery to the donee, without any formal assignment by the donor ; and the delivery of a formal written assignment of the contract, as the symbol of the delivery of the gift, may be sufficient to perfect the gift, even without the de- livery of the contract or instrument itself. And the delivery of a deed of the thing given will be sufficient to perfect the gift without more, it would seem, whether the gift be of things in possession or in action. A deed of all the donor's property, and all he should be possessed of at his decease, should be construed as becoming operative only in the event of his decease. Extended comments in the note to this case by the judge delivering the opinion, in regard to the jjroper office of gifts mortis causa, and how far they may be regarded as improperly trenching upon the objects and purposes of the Statute of Wills. Note. p. 710-713. 2. Merchant v. Merchant, 2 Bradford's Surrogate Reports, 432. 1853. p. 713-719. A gift made during the donor's last illness, from which he does not expect to recover, is, presumptively, a gift mortis causa. Such gifts are revocable at the will of the donor ; and if he resume the possession of the gift, by reclaiming it from the person with whom it had been intrusted by the donee, with intent to recall the gift, although without the knowledge of such donee at the time, it will amount to a revocation of the gift ; and if the Xlviii -ANALYSIS OP CONTENTS. donee subsequently resume the possession of the subject-matter of the gift without the consent of the donor, or after his decease, and retain such possession, claiming it as his property, by virtue of the gift, he will be com- pelled to surrender the possession to the personal representative of the donor, or, if he be himself such representative, to account for it as belonging to the estate. The civil law, from which this species of gift is incorporated into the English law, annexed three conditions to such gifts. They become inoperative, 1. Upon the recovery of the donor; 2. His repentance of the gift; 3. The death of the donee before that of the donor. These qualifications of such gifts have all been maintained in the English law. Note. p. 719. PART VI. SELECTION OP LATE CASES ILLUSTRATING THE DOCTRINES OP THE PORMER CHAPTERS. I. BURDEN OF PROOF; TESTAMENTARY CAPACITY; UNDUE INFLUENCE. Thompson v. Kyner, 65 Pennsylvania Stale Reports, 368. 1870. p. 723-730. The law presumes testamentary capacity until the contrary is shown. The practice of asking the subscribing witnesses to a will, whether the testator appeared of sound and disposing mind and memory, at the time he executed his will, is form merely, for in case of death, absence, or incapacity of the witnesses to testify, proof of their handwriting satisfies the requirement of proof of execution . Testamentary capacity implies that the testator has sufficient mind and memory to comprehend the transaction of making his will; i.e., the nature and extent of his property and the claims of all interested in the distribution of it. ,Undue influence must be such as to. destroy the free agency of the testator, at the time of making his will. II. UN13UE INFLUENCE. 1. Lewis y. Mason, 109 Massachusetts Reports, 169. 1872. p. 730-732; As tending to show that the son of the testator had the power to control him, ' the fact, that on one occasion, within one or two years before the execution of ANALYSIS OP CONTENTS. xlix the will, when the testator was talking loud, the son told him to " shut up and stop his noise," and he obeyed, which was called out on cross-examination of one of the witnesses of the proponents of the will, is competent evidence upon the issue whether undue influence was exercised by the son in procuring the will. Upon the issue whether the will was obtained by the undue influence of some of the testator's children, the statement of one of these to another child, that the latter should not continue to reside in the testator's house any longer, and that they had got the testator just where they wanted him, and the statement of another child to the same import, made not long before the execution of the will, is competent evidence, as tending to show a combination or conspiracy among some of the children to keep control of the testator, and to exclude others from being near him. And the conduct and declarations of the testator up to the time of his death, manifesting tenderness and affection towards those children, virtually disin- herited by the will, are competent evidence to show the state of his feelings towards them. It is competent evidence, coming from a physician, but not an expert in mental diseases, who had been the family physician of the testator many years before the execution of the will, and who last saw him four years before that time, that he then " appeared as if in the last stages of second childhood," as tend- ing to show want of testamentary capacity. Where the parties agree to admit, upon the trial, that one of the subscribing witnesses would testify in a certain agreed manner, if he were present, and that this shall be treated as testimony in the case, this gives the party against whom the testimony is thus received the same right to prove contra- dictory statements made by the witness, with a view to impeach his credit, as if he had testified in court to the facts agreed as his testimony. The fact that the person charged with procuring the will, by undue influence, had induced the testator to dispose of his property by sundry conveyances, and that the testator, when informed of it afterwards, said he did not know of it, was held admissible, as tending to prove undue influence. 2. Lynch v. Clements, 24 New Jersey Equity Heports, 431. 1874. p. 733-740. Undue influence must be such as to overcome to some extent the free and uncon- strained action of the mind of the testator. Declarations of the testator, made long after the execution of the will, are not evidence of such influence. The provisions of the will being unequal and unjust, will not alone prove such influence, but may require explanation, and, in default thereof, will add great force to other evidence in that direction. It is not easy to define undue influence in any way, to meet all cases. It must depend upon the facts and circumstances of each case. ANALYSIS OF CONTENTS. 3. In the Matter of the Will of JacTcman, 26 Wisconsin Reports, 104. 1870. p. 740-751. To constitute undue influence in the procurement of a will, it must, virtually, destroy the free agency of the testator ; it must be purposely exerted towards the procurement of an unjust will, and it must have been successful to some extent. The burden of proof, in such cases, rests upon the proponents of the will. III. TESTAMENTARY CAPACITY; THE UNEQUAL PROVISIONS OE THE WILL ; INSANE DELUSION, ITS CHARACTER AND THE EVI- DENCE OF ITS EXISTENCE. Bitner v. Bitner, 65 Pennsylvania State Reports, 347. 1870. p. 751-755. Testamentary capacity implies that the testator shall have mind enough to know and appreciate his relation to the natural objects of his bounty, and the char- acter and effect of the dispositions of his will. The unequal or unjust provisions of the will are proper to be considered in passing upon its validity, and will require clear proof of testamentary capacity and freedom of action. A sudden and marked change of character, disposition, and conduct is strong evidence of mental disorder. When the testator entertained the notion that his family should be governed in all respects as that practised by the Jewish patriarchs, and disinherits some members of his immediate family, because he imagined or believed they did not so readily conform to his views on that subject as others did, or as they should, it must be regarded as evincing such insane delusion as to avoid the will. If he entertained hatred toward his sons on this account, and therefore dis- inherited them, it must be regarded as monomania of the form called moral insanity, provided it was the result of insane delusion, of which the jury must judge. Insane delusion may exhibit itself by want of just sense of affection and decency; by hating, without cause, persons formerly much loved ; by delight in cruelty ; by taking offence at not receiving the respect and attention to which such de- lusion may persuade the person he is entitled. ANALYSIS OP CONTENTS. IV. PARTIAL INSANITY EXTENDING ONLY TO A PORTION OF THE "WILL IS NO REASON FOR AVOIDING THE WHOLE. UNPROFES- SIONAL WITNESSES MAY EXPRESS OPINIONS AFTER STATING FACTS. EXPERTS MAY GIVE OPINIONS UPON HYPOTHETICAL CASES OR UPON THE FACTS PROVED. Pidcoch V. Potter, 68 Pennsylvania State Reports, 342. 1871. p. 755-763. Unsoundness of mind may extend to some subjects, and not to others; and where it has relation to only a part of the -will, it is no ground of avoiding it wholly. Unprofessional witnesses, in this State, have always been allowed to express an opinion as to the sanity of the testator, after stating the facts of the case within their knowledge. Experts may give opinions upon a hypothetical case or upon the facts proved. TABLE OF LEADING CASES REPOKTED. Adams r. Field, Ex'r, 21 Vt. 256 613 Baldwin v. Parker, 99 Mass. 79 393 Barrett v. Buxton, 2 Aikens (Vt.), 167 320 Batton V. Watson, 13 Ga. 63 618 Baxter «. Abbott, 7 Gray (Mass.), 71 8 Beaubien v. Cicotte, 12 Mich. 459 67 Bible Society v. Pratt, 9 Allen (Mass.), 109 597 Bitner v. Bltner, 65 Penn. St. 347 751 Boydu. Eby, 8 Watts (Penn.), 66 218 Boylan v. Meeker, 4 Butcher (N. J.), 274. 276-303 487 Breed v. Pratt, 18 Pick. (Mass.) 115 615 Brooke «.Townsliend, 7 Gill (Md.), 10 89 Brooks V. Barrett, 7 Pick. 94 5 Brower v. Fisher, 4 Johnson (N. Y.), Ch. 441 36 Chaffee v. Baptist Missionary Con- vention, 10 Paige (N. Y.), Ch. 85 651 Chandler v. Ferris, 1 Harrington (Del.), 454 620 Chase V. Kittredge, 11 Allen (Mass.), 49 638 Clapp V. FuUerton, 35 N. Y. 190 105 Clark V. Fisher, 1 Paige, 171 287 Coffin V. Coffin, 23 N. Y. 9 627 Collins V. Townley, 21 N. J. Eq. 363 286 Commonwealth v. Rogers, 7 Met. (Mass.) 500 40 Comstock V. Hadlyme, 8 Conn. 254 174 Converse v. Converse, 21 Vt. 168 171 Cordrey v. Cordrey, 1 Houston (Del.), 269 198 Daniel u. Daniel, 39 Penn. St. 191 473 Davis V. Calvert, 5 Gill & J. (Md.) 269 420 Dean v. Dean, 27 Vt. 746 622, Dean v. Negley, 41 Penn. St. 312 439 Delafield v. Parish, 25 N. Y. 9 158 Dewey v. Dewey, 1 Met. (Mass.) 349 619 Domestic and Foreign Missionary Society's Appeal, 30 Penn. 425 678 Duffield V. Morris, 2 Harring. (Del.) 375 206 Dunham's Appeal, 27 Conn. 192 93 Eckert v. Flowry, 43 Penn. St. 46 418 Elliott's Will, 2 J. J. Marshall (Ky.), 340 434 Florey v. Florey, 24 Ala. 241 621 Gardner v. Gardner, 22 Wend. 626 311 Gass V. Gass, 3 Humph. (Tenn.) 278 362 Gombault v. The Public Admin- istrator, 4 Bradf. (N. Y.) Surr. 226 347 Gould V. Safford's Estate, 39 Vt. 498 694 Harrel v. Harrel, 1 Duvall (Ky.), 203 293 Harrison's Will, 1 B.Mon. (Ky.) 351, 1841 ^ 438 Harrison v. Rowan, 3 Wash. C. C. 680 53 Harvey v. Sullens, 46 Mo. 147 480 Heald v. Thing, 45 Me. 392 44 liv TABLE OF LEADING CASES EEPOETED. Jackson v. Van Dusen, 5 Johns. (N. Y.) 144 28 Jauncey v. Thome, 2 Barbour (N. Y.), Ch. 40 665 Jenckes v. Probate Court, 2 R. I. 255 517 Kevin V. Kevin, Court of Appeals (Ky.), 6 Am. Law Reg. n. s. 79 601 Kinne v. Kinne, 9 Conn. 102 194 Kurtz V. Hibner, 10 Am. Law Reg. N. s. 93 (lU. Sup. Ct.) 539 Lewis V. Mason, 109 Mass. 169 730 Lucas V. Parsons, 27 Ga. 593 238 Lynch v. Clements, 24 N. J. Eq. 431 733 Mann v. Executors of Mann, 1 Johnson, Ch. 231; 14 Johns. (N. Y.) 9 527, 532 Marshall v. Flinn, 4 Jones, Law (N. C), 199 413 Matter of the Will of Jackman, 26 Wis. 104 740 McMahon v. Ryan, 20 Penn. St. 329 417 Meach v. Meach, 24 Vt. 691 701 Merchant v. Merchant, 2 Bradf. Surr. 432 713 Miller u. Miller, 3 S. & R. (Penn.) 267 410 Monroe v. Barclay, 17 Ohio, n. s. 302 442 Moore V. Mobre, 2 Bradf. Surr. 261 182 Morris v. Stokes, 21 Ga. 662 200 Munday v. Taylor, 7 Bush (Ky.), 491 296 Neel V. Potter, 40 Penn. St. 483 486 Nelson v. McGiffert, 3 Barb. (N. Y.) Ch. 158 634 Peck V. Cary, 27 N. Y. 9 326 Peebles v. Case, 2 Bradf. (N. Y.) Surr. 226 674 Pettes V. Bingham, 10 N. H. 516 29 Pidcock V. Potter, 68 Penn. St. 342 766 Potts V. House, 6 Ga. 324 262 Prince v. Hazleton, 20 Johns. 602 679 Robinson v. Adams, Sup. Ct. Me., 1874 367 Roman Catholic Orphan Asylum v. Emmons, 3 Bradf. Surr. 144 674 Ross V. Christman, 1 Iredell, Law (N. C), 209 297 Sarah Miles' Will, 4 Dana (Ky.), 1 624 Scribner v. Crane, 2 Paige, 147 137 Seaman's Friend Society v. Hop- per, 33 N. Y. 619 223 Sechrest v. Edwards, 4 Met. (Ky.) 163 299 Shailer v. Bumstead, 99 Mass. 112 397 Sinall V. Small, 4 Greenl. (Me.) 222 432 Spencer v. Higgins,. 22 Conn. 521 662 Staekhouse v. Horton, 15 N. J. Eq. 202 110 State V. Pike, 61 N. H. 105. s. c. 11 Am. Law Reg. N. s. 233 140 Stevens v. Vancleve, 4 Wash. C. C. 262 69 Taylor v. Wilburn, 20 Mo. 306 412 Thompson, Ex parte, 4 Bradf. Surr. 164 688 Thompson v. Kyner, 66 Penn. St. 368 723 Thornton v. Thornton, 39 Vt. 122 13 Trumbull v. Gibbons, 2 Zab. (N. J.) 117 261 Tucker v. Seaman's Aid Society, 7 Met. (Mass.) 188 683 Turner v. Cheesman, 16 N. J. Eq. 243 29, 130 Tyler v. Gardiner, 35 N. Y. 559 461 United States v. McGlue, 1 Cur- tis, C. C. 1 42 Van Alst V. Hunter, 6 Johns. Ch. 148 258 Wampler v. Wampler, 9 Md. 540 37 Weir V. Fitzgerald, 2 Bradf. Surr. 68 • 83 Welch, In re, 1 Redf. (N. Y.) Surr. 238 506 Williams v. Fitch, 18 N. Y. 547 607 Winkley v. Kaime, 32 N. H. 268 547 Woodbury v. Obear, 7 Gray, 467 52 Wootton V. Redd's Executors, 12 Grattan (Va.), 196 566 TABLE OF CASES CITED. A. Abraham v. Wilkins Adams v. Field 17, 623, Addy V. Grix Allen, Be V. Duncan V. Lyons Allison V. Allison Alston V. Jones Anon. Anstay v. Dowsing Anstee v. Nelras Archer v. Mosse Atkins V. Sanger Attorney-General ». Good V. Parnther Avery et ux. v. Ayrey u. Hill Chappel d al. B. PAQE 142 647, 676 663 642 619 545, 599 677 158, 471 660, 661 15 538 291 406,407 147 29, 140, 289, 361 180 332 Bailey v. Stiles 671 Bainbrigge ». Bainbrigge 83 Baker v. Batt 167, 465 V. Dening 640, 677 ,B. Williams 719 Baldwin v. Harpur 638 V. Parker 393 V. State 86, 142 Banks v. Goodfellow 258, 766 Barrow v. Greenough 609, 610 V. Rhinelander 512 Barry u. Butlin 30,31,165,170,395, 468, 482, 631 Barton v. Robins 36 Baxter v. Abbott 28, 138, 143, 394, 395, 409, 678 ». Knowles 408 Bayliss v. Sayer Beard v. Beard V. Kirk Beaubien v. Cicotte 142, Beaumont v. Fell Beavan v. MeDonell Beaver v. Filson Beckett v. Howe Bennet y. Davis V. Vade Bergen v. Udall Bernett v. Taylor Berry v. State Bettison et al. v. Bromley Beverly's Case Bible Society v. Pratt Billinghurst v. Vickers Blake v. Knight Blakey «. Blakey Blanchard u. Nestle Blewitt V. Blewitt Blundell u. Gladstone Boardman v. Reed V. Woodman Boldry v. Parris Booth V. Blundell Bootle V. Blundell Borah v. Archers Bowman v. Christman Boyd V. Boyd V. Eby V. Ely Boylan v. Meeker Boyse v. Rossborough Bradford w. Boudinot Bradley v. S. F. M. Co. Brainerd v. Coudrey Brant v. Wilson Brembridge v. Osborne 274, 509, 344, 140, PASB 677 704 152 147, 152, 524 528, 592 76 581 677 661 291, 423 468 16, 623 141 177 321, 322 596 510, 513 667, 675 407 163, 164 461 688 648 148, 151 647 658 16,19 541 17, 623 514 257 161 403, 738 397, 514 176 155 660 637 147 Ivi TABLE OF CASES CITED. Brice v. Smith 623, 652, 665 Bricker v. Lightner 141 Bridegroom v. Green 424 Bridge v. Eggleston 519 Bridgman v. Green 470 Bright et al. v. Bright 542 Brinclferhoof «. Remsen ' 632 Brogden v. Brown 243 Brooke b. Berry 93 V. Townshend 86 V. Warde 678, 696 Brooks V. Barret 175, 362 Broughton v. Knight 268 Brounker v. Brounker 513 Brower v. Fisher 36 Brown v. Bellows 20 V. Brown 639 V. Sackville 181 V. Salstonstall 592 V. Selwin 528, 661 Bro-wne v. Molliston 276 Brownfield ». Brownfield 679 Browning v. Budd 165 Brush h. Holland 71 Brydges v. King 248, 508 Buckminster v. Perry 7, 87, 143, 148, 160, 175 Buel V. McGregor 164 Bulkeley v. Ketellaa 148 Bunn V. Markham 716 Burger b. Hill 75 Burgoyne v. Showier 675 Burton v. Scott 141, 146 Burwell «. Corbin 671, 672 Button V. The American Tract Society 645, 596 Byrd, Re 643 c. Cadbury ». Nolen 729 Calmady v. Rowe 147 Camp's Appeal 719 Campbell v. Logan 646 et al. V. Wallace 549 Campion, Edward, Will of 280, 291 Careless v. Careless 693 Carleton v. Griffin 618 Carmichael, In re 142 Carrington, Lord v. Payne 16, 623 Carter and Wife v. Buchannon 518 Cartwright v. Cartwright 248, 249, 250, 366, 862 Carver v. Jackson 148 Casson v. Dade 620 Cavendish v. Troy 141 Cawthorn v. Haynes 404 Chaffee v. Baptist Miss. Conv. 674 Chamberlain v. Chamberlain 609 Chamberlain of London v. Evans 322 Chamberlaine v. Agar 610 Chambers v. Brailsford 662 V. The Queen's Proctor 355, 356, 362, 666, 675 Chandler and Others v. Ferris 198, 320, 523 Chapman v. Hart 531 Chappel V. Avery 179 Charlton v. Hindmarsh 643 Chase V. Hathaway 616 V. Kittridge 622, 677 V. Lincoln 16, 142, 623 t).' Redding 712 Cheney's Case 527, 528 Choat V. Yeats 670 Church, F. B. v. Rouse . 148 Churchill, Re 692 Cilley V. Cilley 169 Clapp V. FuUerton 141, 744 Clapsaddle v. Eberly . 603 Clark V. Baird 152, 163 V. Fisher 162, 429, 610, 624 V. Morrison 407 V. Sawyer 141, 169 V. State 86, 142, 147, 262 Clarke, Re 676 Clary v. Clary 48, 86, 91, 96, 141, 146, 263 Clayton v. Lord Nugent 538, 539 Clifford V. Richardson 141 Cochrane's Will, Case of 289, 664 Coffin V. Coffin 339, 524 Coghlan v. Coghlan 356 Cole V. Mordaunt 689 V. Robins 323 Coleman v. Robertson 484 Coles V. Coles ' 20 V. Mordaunt 684 V. Trecothic , 625 Collier v. Simpson 48 Collins V. Townley , 624 Com. V. Webster 48 Combe's Case 169 Combs V. Jolly 648 Commonwealth v. Child 148 V. Fairbanks 143 V. Rich 143 V. Rogers 87, 102 V. Wilson 143 Comstock V. Hadlyine 30, 95, 100, 194, 402, 494 C'oncannon v. Cruise 623 Constantine v. Constantine 562 Converse v. Converse 75, 162, 173, 724 V. Wales 487 Cook V. Castner 87 V. Parsons 620, 661 TABLE OP CASES CITED. Ivii Cooper V. Beckett 345, 643, 647, 668 Cordrey v. Cordrey . 32, 624 Cottrill V. Myrick 88 Cowden v. Reynolds 19 Cox's Will, In re 649 Craig ». Craig 712 Cram v. Cram 141, 144 Crane v. Northfield 141, 145, 152 Crispell ». Dubois 171, 468 Crocker v. Crocker 592 Croft V. Day 465, 509 V. Paulet 652, 665, 677 Crolius V. Stark 310 Crosbie v. MacDoual , 613 Cross V. Andrews 321 Crowninshield v. Crowninshield 13, 28, 167, 394, 395 Culver B. Haslam 87, 141 Cunningham, Re 643 V. Batchelder 148 Curl V. Lowell 148 Currier v. B. & M. Railroad 155 Curtis V. Northup 176 D. Dan V. Brown 407, 493 Daniel v. Daniel 67, 724 Davidson v. Stanley 147 Davis V. Calvert 39, 450, 522, 741 V. Jenney 148 V. Spooner 519 Day V. Trigg 531, 648, 677 Deakins v. HoUis 38 Dean v. Dean 16, 622, 719 V. jSTegley 386, 449, 482, 504, 742, 745 et al. V. O'Meara et al. 541 Deitrick v. Deitrick 291 Delafield v. Parish 30, 85, 86, 87, 141, 168, 173, 310, 459, 465, 468 Deni). Gibbons 141 V. Johnson 161, 288 II. Mitton 648 V. Vancleve 113 Denison's Appeal 487 Dennett y. Dow 19 Dennis v. Weeks 523 Denslow ». Moore 523 Dent V. Bennet 611 Devenish v. Baines 609 Devisees of Eelbeck v. Granberry 664 Dew V. Clark 100, 127, 220, 227, 262, 267, 278 Dewey v. Dewey 624, 647 Dewitt V. Barley 86, 106, 141, 146, 146, 152, 163 Dibble v. Button 656 Dicken v. Johnson 86 Dickenson v. Blisset 36 Dickinson v. Barber 47, 87, 143, 263, 487 V. Dickinson 7.56 Dodge V. Meech 74 Doe V. Brown 629 V. Earl of Jersey 563 V. Greathed 673 V. Hiscocks 691 V. Lyford 662 V. Martin 660 V. Oxenden 629, 562 «. Reagan 86, 142, 147, 262 V. Strickland 147 d. Corbett v. Corbett 174 d. Gord V. Needs 696 ex dem. Baldwin v. Rawding 562 Dell V. Pigott 574 Oxenden v. Chichester 562, 691 Domestic and Foreign Missionary Society's Appeal 545, 694 Donaldson, Goods of 693 Door V. Geary 677 Dormer «. Thurland -641 Dorsey v. Warfield 86, 141 Down V. Down 663 Downhall v. Catesby 180 Druce v. Denison 628 Drummond v. Parish 692, 697, 698, 700 Duberly v. Gunning 147 Dublin V. Chadbourn 434 Dudleys v. Dudleys 672, 676 Duffield V. Elwes 708 V. Hicks 708 V. Morris 141, 624 t). Morris's Ex'r 199 V. Robeson 362 Dunham's Appeal 85, 141 Durnell v. Corfield 509, 510 E. Eagleton v. Kingston 82 Eagleton and Coventry ». King- ston 266 Eccleston v. Speke 641, 646 Eckert v. Flowry 449, 725 Eddy V. Gray 148 Ela ». Edwards 640, 647 Ellicott V. Pearl 17 Elliot's Case 36 Elliott's WiU _ 307 Ellis V. Merrimack Bridge 560 V. Smith 618, 620, 641, 661 Enyon, Goods of 676 Iviii TABLE OP CASES CITED. Euston, Earl of v. Lord Henry- Seymour 692 Evans V. Llewellin 612 V. People 75 Ewer V. Ambrose 17 F, Falkland v. Bertie 492 Farr v. Thompson 751 Farrar ». Ayres 592 Farrell v. Brennan 142 Farrer v. Ayres 179 V. St. Catherine's College 547 Fearon, Ex parte 280, 291, 423 Fenton v. Hughes 17 Fenwick v. Bell 88 Fincham v. Edwards 35 Fleming v. Brook 531 Florey v. Florey • 86, 142 Floyd V. Floyd 482, 504 Forman v. Smith 310 Freeman v. The People 78 French v. Raymond 719 Frere v. Peacocke 12 Friedlander v. London Ins; Co. 17 Fry, In re 697 Fry and Wife v. Porter 628 Fulleck V. Allinson 221 G. Gallini v. Noble 598 Gangwere's Estate, In re 362 Gardiner v. Gardiner 741 Gardner v. Lamback 310 V. Picket 148 Garrard v. Reynolds 148 Garrison v. Garrison 141 Garvin's Administrator v. Williams 482 Gaze V. Gaze 344, 667 Gehrke v. State 144 Gerrish v. Nason 30, 169 Gibson V. Gibson 96, 142, 270 V. Jeyes 512 Gilbert v. Gilbert 742 Gilreath v. Gilreath 482, 504 Glover v. Hayden 394 Goblet V. Beechy 539, 601 Goodinge v. Goodinge 661 Goodright v. Pears 563 Goodtitle V. Paul 663 V. Southern 648, 662 V. Welford 177 d. Revett v. Braham 174 d. Richardson v. Edmonds 179 Gould V. Norfolk Lead Co. 17 Gove V. Gawen 344, 666, 675 Grabill v. Barr 141 Graflf V. The Pittsburg and Steu- benville Railroad Co. 729 Graham v. Graham 649 Grant v. Grant 552, 596, 696, 697, 604 V. Thompson 86, 91, 95, 141, 145, 150, 487 Gray v. Mansfield 204 V. Minnethorpe 562 Grayson v. Atkinson 620, 660 Greenwood v. Greenwood 160 Greenwood's Case 126, 127, 267 Gregg V. Wyman 149 Gregory, In re 546, 647 Griffin v. Devenille 512 ». Griffin 141 Griffiths V. Griffiths 677 V. Robins 611 Griswold u. Penniman 655 Grove v. Donaldson 148 Guy V. Sharp , 562 Gwinn V. Radford 671 H. Hacker v. Newborn 280, 291 Hackett v. B. C. & M. Railroad 152 Hayden u. Hays 362 Hall V. Hall 621, 664 V. Warren 243, 361 Hamblett v. Hamblett 149, 150, 161 Hammond v. Ridgly 663 V. Wadhams 197 Hampshire v. Peirce 628 Hands v. James 641, 652, 665 Handy v. The State 675 Harrel v. Harrel 505, 524 Harring v. Allen 623 Harris v. Bishop of Lincoln 628 V. Clark 608, 710 Harrison u. Elvin 646 V. Rowan 32, 75, 142, 148, 161, 196, 196, 197, 277 Harrison's Will 438 Harwood v. Baker 160, 169, 609, 612 V. Goodwright 637 Hastead v. Searle 563 Hastings v. Rider 732 Hathaway ». Clark 616 Hathorn w. King 47, 87, 100, 143, 160, 178 Hauberger r>. Root 407 Haven u. Cram 550 Hawley «. Brown 176 TABLE OP CASES CITED. lix; Hayden et ux. v. Loomiss Hayes, Richard, Goods of V. West Headly v. Kirby Heath v. Watts Hedges v. Hedges Herbert v. Lowns V. Winn Heyward v. Hazard Hight V. Wilson Hindmarsh v. Charlton Hindson v. Kersey Hiscocks V. Hiscocks Hitch V. Wells Hodges V. Holder Hodgson V. Hodgson Hoge V. Fisher V. Hoge Hoil V. Clark Holyland, Ex parte Horbac'h v. Denniston Home V. Home Hosford V. Nichols Hoskins, Re Hotham V. Sutton Howard's, Alsey, Will Howell V. Barden Hoysradt v. Kingman Hubbell V. Bissell Hubert v. Treherne Hudson V. Kersey V. Parker Hudson's Will Hughes V. Hughes Huguenin v. Baseley 176 693 523 706 127 685 159 346 141 648 644, 645, 677 16 541, 661, 596 675 174 528 142, 289 609 641 361 310 75 326 643 530 305, 671 403, 496 648 143 616 658 •643, 670 665 74, 86, 87 423, 471, 511 Hungerford & Hill v. Nosworthy 637 Hunt V. Benett 148 V. Hort 564 Hutchins, Lessee of Nosworthy V. Bassett 637 Hott V. Genge 664, 666 Inglesant v. Inglesant 677 Ingram v. Wyatt 206, 248, 466, 609, 610 Irish V. Newell 173 V. Smith 74, 141, 486 J. Jackson v. Betts 493 V. Christman 647, 675 V. Delancy 650 V. Hesketh 174 204, Jackson v. Meyer 566 V. Sill 641, 644, 647, 661, 662, 665, 592 V. Van Buren 660 V. Van Dusen 28, 289, 671 ». Wilkinson ' 541 d. Coe et al. v. Kniffen 177, 402, 403, 404, 493 ex dem. Le Grange v. Le Grange 15. 670 Jauncey v. Thorpe 17, 635, 677, 678 Jenckes v. Probate Court 517 Johnson, The Goods of 692 V. Dodgson 616 V. Hubbell 610 V. Johnson 620 V. Medlicott 323 V. Scribner 197 Jones V. Curry 599 V. Lake 661 V. Selby 707, 717 K. Keating v. Brooks 676 Keeler v. Vantuyle 729 Keigwin v. Keigwin 668 Keith et ux. v. Lothrop 48 Kell V. Charmer 639, 602 Kellogg V. Krauser 162 Kelly V. McGuire 142 Kennon v. McRoberts 560 Kerrich v. Bransby 291 Kessinger v. Kessinger 442 Kettletas v. Gardner 316 Kevill V. KeviU 623 Key V. Jordan 692 Kilvert's Trusts, In re 547 King V. Arnold 140 V. Bellingham 141 V. Bowler 141 V. Chandler 147 V. CoUedge 147 V. Farley 609 V. Ferrers 141 V. Fisher 147 V. Frith 141 V. Green 147 V. Hadfield 141 V. Hardy 147 V. Keach 147 V. Nueys & Galey, The 658 V. Offord 141 King's Heirs v. Thompson 642 Kinleside v. Harrison 243, 394, 423 Kinloch v. Palmer 289 Kinne v. Johnson 173 V. Kinne 75, 86, 95, 100, 141 Ix TABLE OP CASES CITED. Kirk V. Eddowes 539 Knight V. Crockford 616, Kurtz V. Hibner 638, 561, 662, 695, 603 L. Lake v. Kanney 468 Landon v. Nettleship 676- Laney v. Bradford 162 Langdon, The Legatees of ». The Heirs of Langdon 610 Lansing v. Russell 148, 469 Lathrop v. Blake 548 Laughton v. Atkins 434, 646 Lawrence, Case of 1 42 V. Barker 20 V. State 173 Laws V. Reed 72 Lawson v. Lawson 707 Lay, Goods of 692 Leach, Goods of 674 Le Bas v. Gregory & McCulIoch 669 Le Breton v. Fletcher 676 Lee V. Dill 468 ». Libb 641 V. Pain 638 Lemayne v. Stanley 613, 614, 615, 625, 660, 676 Lester!). Pittsford 86, 141, 144, 268 Lewis V. Lewis 632, 646 Lightner v. Wike 73 Lindgren v. Lindgren 598 Lochlibo, The 15, 17 Longchamp v^ Fish 34, 38 Longford v. Eyre 620 Longstaff «. Rennison 713 Loomis V. Jackson 548 Loring v. Sumner 713 V. Woodward 539 Losee v. Losee 499 Louvalle et al. v. Menard et al. 541 Love V. Johnston 74 Low V. Railroad 152 Lowe B. JoUiffe 17, 140, 150, 177, 269, 623, 668, 676 V. Williamson 100 Lucas V. Parsons 267 Lunning v. The State 87 Lush V. Douse 548 M. Mackenzie v. Handasyde 675 Malton ». Nesbit 88 Manchester, Duke of ». Bennet 83 Mann v. Mann 641 Marsh v. Tyrrell 74, 160, 459, 460, 468, 469, £08, 510 Marshall v. Flinn 450, 523 Marston v. Roe 402 Martin v. Drinkwater 562 V. McCord 581 V. Teague 623 V. Watton 626 Marvin v. Marvin 523 Mason v. Robinson 574 Masten v. Anderson 210 Masters v. Masters 538 McCormic v. Grogan 610 McDaniel's Will 307 McDowall V. Peyton 291 McElwee w. Sutton 499 McGill V. Brown 580, 581 McGirr v. Aaron 682 McKee v. Nelson 145, 155, 263 MoMahon v. Ryan 419, 725 McMasters u. Blair 724 MoNaghton's Case 49, 83, 103 McTaggart v. Thompson 403 Mead, Re 646 Means v. Means 482, 504 Mickle V. Matlack 648 Middletown, The Fourth Eecles. Soc. of a. Mather 566 Miles', Sarah, Will , 617, 676 Miller ». McNeill 648 ». Miller 460, 523, 707, 711 ».-Travers 538, 541, 548, 661, 564, 591, 598 Milward v. Temple 623 Monroe b. Barclay 386 Montefiori v. Montefiori 508 Moodie v. Reid 624 Moore V. Darton 706, 711 B. King 642 u. Moore 624, 531, 719 B. Paine 34 Mbritz B. Brough 403 Morrell v. Morrell 693 Morris B. Stokes 624 Morse v. Crawford 92, 141, 144, 268 Mountain u. Bennett 159 Mo wry v. Silber 87 Munday b. Taylor 624 Murray b. Jones 661 Myers v. Riggs 645 Mynn v. Robinson 74 N. N. Y. F. I. Co. «. Walden 148 Needham v. Ide 87, 143, 262 B. Needham 646 Neilson b. McDonald 175 TABLE OP CASES CITED. Ixi Nelson b. McGiffert 340 V. Oldfield 177, 495 Newburgh v. Newburgh 561 Newhouse v. Godwin 164 169 Nicholas V. Adams 717 Nickerson v. Buck 16 640 Norris, The Goods of 692 V. Frazer 610 V. State 85 141 Nussear v. Arnold 291 Nutt V. Nutt 610 Nutting V. Herbert 148 o. O'Brien v. Galagher 649 Ogle V. Cook 16, 658 Oldham v. Litchford 609 Olding, Be 643 Oldroyd's Case 18 O'Neal V. Farr 523 Onions v. Tyrer 641 Orser v. Orser 343 Osgood V. Breed 434 V. Manhattan Co. 407 Osmond v. Fitzroy 612 Overton's Heirs v. Overton's Ex- ecutor 303 Oyster v. Longnecker 148 Panton v. Williams Parfitt V. Lawless Parish Will Case Parker v. Marchant Parkin v. Parkin Parramore v. Taylor Parsons v. Lyman V. Parsons V. Winslow Paske V, Ollats 165 Patchin v. Astor Mutual Ins. Co. Pate's Administrators v. Joe 166 614 466, 470 571 566 649 326 592 434 171, 510 Patterson v. Patterson Peate v. Ougly Peck V. Cary Peebles v. Case Pelamourges v. Clark Pendleton v. Grant Pennel v. Weyant Pennell v. Dawson People, The v. Eastwood Perry, The Goods of Peterboro' v. Jaffrey Pettes V. Bingham Petty V. Anderson 290. 646, 73 670 291 669 647 674 142 628 648 147 146 692 162 29 147 Phelps et al. v. Hartwell et al. 6, 176, 201, 406, 407 Philips V. Chamberlaine 180 V. The Parish of St. Clem- ents 686 Phillips e. Kingfield 148 Phipps, Re 692 Pickering u. Shotwell 680, 581 Pierce v. Waring 204 Pike V. Badmering 623 Pitt ». Smith 323 Piayne «. Scriven 642 Plunket, In re 695 Podmore v. Gunning 609 Poole V. Richardson 87 , 142, 143, 144, 148,161,162,154,156,167 Pope V. Pope 647 Porter ». Pequonnoc Manuf. Co. 96 Potts V. House 85, 95, 100, 141,257, 262, 309, 524 693 86, 142 661 693 690 178, 402, 492 665 Powell V. Biddle V. State Preedy v. Holtom Prendogast, Re Prince v. Hazleton Provis V. Reed PuUin V. PuUin Q. Queen v. Baker V. Dove V. Higginson ». McNaghten V. Mitchell ». Oxford V. State V. Townley 141 141 141 141 141 141 20 141, 147 R. Ragland v. Huntingdon 649 Rambler v. Tryon 73,92,96, 100, 141, 178, 269, 756 Rancliffe v. Parkyns 641 Rash V. Purnel 648 Reading, The Mayor of v. Lane 582 Reddel v. Dobree 717 Redding, Re 676 Reech V. Kennegal 609 Reed's Will 306, 307 Reel V. Reel 403, 495 Regina v. Goode 77 V. Higginson 83 V. Oxford 78 e. Pate 83 Remsen v. Brinckerhoff 654 Ixii TABLE OP CASES CITED. Rewalt V. Ulrich 579 Rex V. Burdett 148 V. Dyson V. Offord 78,82 83 V. Oldroyd V. Pritchard 14 78,82 V. Thomas Jones 78 V. Wright Reynolds v. Root Rhodes v. Cbilds 83 173 719 Rice V. Peet 322 Richards v. Dutch 179. 592 V. Syms 814, 315, 319 Richardson v. Watson 674 Riggs V. Myers Risley v. Temple Roberts v. Phillips V. Trawick 541 640 646, 676 86, 141 Robertson v. Stark 165 Robinson v. Adams 524 V. Hutchinson 402, 495 Rochester v. Chester 152, 163, 164 Rockwood V. Wiggin 719 Roe V. Taylor 142 Rogers, Trial of 11 V. Holly 320 V. Walker 86 Rogers's Case 61 Rohrer v. Stehman 64S Rolfe V. Hampden 678, 696 Roman Catholic Orphan Asylum V. Emmons 644, 647, 598, 603 Rose V. Bartlett 531 Ross V. Christman 524 Rowley v. Van Benthuysen 320 Ruddor v. McDonald 648 Rudy V. Ulrich 386, 442 Russel, Matter of 77 Rutherford v. Rutherford 339 S. Sanderson v. Jackson 616, 625 Savory, Ee 676 Schenck v. Dart 106 Schneider v. Norris 616 Scribner v. Crane 678 Seamen's Friend Society v. Hop- per 257 Sears v. Dillingham 176, 623 V. Shafer 469, 483 Sechrest v. Edwards 505, 624 Selwood V. Mildmay 638, 648, 677, 598 Seymour, Lady, Case of 361 Shanks et al. v. Christopher et al. 302 Shaw V. Neville 643 Shearman v. Pyke 693 Shelly V. Champlin 623 Shelton v. Shelton 660 Shepherd v. Bevin 642 Sherer v- Bishop 518 Sherwood v. Sanderson 484 Shorey v. Hussey 19 Shropshire v. Reno 162 Shumway v. Holbrook 434 Sigfried v. Levan 17 Sills V. Brown 88 Simmonds, Se 642 Sloan V. Maxwell 252 Small V. Small 897, 432, 622, 628, 742, 745 Smith, Ex parte 77 V. Bell 640, 560 V. Can 822 V. Fenner 177, 493 V. Tebbitt 756 V. Tibbit 268 Solarte v. Melville 147 Spear v. Richardson 165 Spiers v. Higgins 323 Stackhouse v. Horton 624 Stanton v. Wetherwax 164 Starret v. Douglass 486 State V. Corey 148, 149, 160, 151, 164, 156 V. Farmer 148 V. Felter 142 V. Gardiner 142 V. George Ryan 148 V. Howard 416 V. Knapp 166 V. Lynott 148 V. Pike 67, 140 V. Prescott 160, 151 V. Ryan 148, 161 V. Shinborn 156 Stephens v. Gerrard 181 Stevens v. Vancleve 100, 177, 178, 487 Stevenson y. Stevenson 726 Stewart v. Lispenard 100, 141, 158, 163,164,272,309,810 V. Redditt 141 V. Spedden 141 Still V. Glass 148 Stobart v. Dryden 499 Stoddard v. Mcllwain 148 Stokes V. Moore 625 Stone V. Damon 615 Stonehouse v. Evelyn 620, 641, 660 Storms V. Vanclive 726 Stringer v. Gardiner 695 Strode v. Lady Falkland 661 V. Russel 492 Strohl V. Levan 729 Stroud V. Marshall 321 TABLE OP CASES CITED. Ixiii Stubbs V. Houston 142 Sturdivant v. Birchett 649 Sutton V. Sadler 147 ■ V. Sutton . 75, 199 Swett V. Boardman 624 Swift et ux. V. Wiley 301, 649 T. Tate V. Hilbert 708 Tatham U.Wright 15,80 Taylor v. Dening 640 «. Kelly 742 V. Railroad 156 V. Temple 141 V. Wilburn 460, 623 Tell, The Goods of 692 Thomas v. Thomas 593 Thompson, Ex parte 696, 697 Re 692 V. Leach 322 V. Thompson 164, 407 V. Welch 712 Thornton v. Thornton 524 Tillinghast v. Wheaton 719 Titlow V. Titlow 407, 756 Tollett V. ToUett 710 Tolson V. Tolson 674 Tomkins v. Tomkins 484, 509, 610, 512 Townsend v. Brooke 141 V. Downer 543 V. Ives 668 Townshend v. Townshend 267 Trelawney v. Colman 146 Trevanion, Re 642 Trimlestown v. D'AIton 200, 613, 621 Tringley v. Cowgill 173 Trott V. Skidmore 677 Trumbull v. Gibbons 524, 735 Trustees v. Peaslee 546, 548, 651, 594 Trustees of the Auburn Theologi- ^ cal Seminary v. Calhoun 343, 471 Trustees of the British Museum V. White 662 Tucker v. Phipps 29 Tucker et al. v. Seaman's Aid So- ciety 541, 652, 598, 603 Turner v. Cheesman 29, 141, 524, 735 V. Turner 289 Tyler v. Gardner 395, 623 Tyrwhitt v. Wynne 147 Tyson v. Tyson 523 U. United States u. Drew 337 Upchurch v. Upchurch 649 Urich V. Litchfield 528 Ustick, Richard, Matter of the Will of 164 V. Van Alst and Others v. Hunter and Others 276 Vanauken, Case of 96, 141, 146 Vaughan u. Burford 648 V. Lloyd 611 ». Vaughan 648 w. Walker «. Hunter 248 V. Walker 141 Waller v. Waller 617 Wallis V. Hodgeson 7, 169 Wallop, Ex parte 423, 429 Walpole, Lord v. Lord Cholmon- deley 628, 561, 596 Walter v. Hodge 709 Ward V. Turner 716, 719 Warden, Mary, Case of 344 Ware, Eliza, Matter of the Will of 343 V. Ware 144, 407 Waring v. Waring 101, 258, 756 Waring's Case 205 Waterman v. Whitney 72, 402, 495 Watson V. Anderson 86 «. Watson's Heirs 307 Watterson v. Watterson 505 Webster v. Woodford 322 Weems v. Weems 141 Weir V. Fitzgerald 75, 87 Wells V. Tucker 717 Welsh, In re 623 West's Case 181 Westbeech v. Kennedy 620 Wheeler and Batford v. Alderson 265 Whelan v. Whelan 291, 612 Whipple ». Walpole 152 Whitaker v. Salisbury 20 White, Re 646 V. Bailey 75, 142 V. Driver 243, 355 ». Repton 692 V. Trustees of the British Museum 620, 663, 670, 676, 677 V. Wilson 29, 220 Whitenack v. Stryker 141 Ixiv TABLE OP CASES CITED. Whitenaok v. Stryker and Voor- hees 29 Whiton w. O. C. I. Co. 148 Whittier v. Franklin 156 Whittlesey v. McMahon 555 Wilbar v. Smith 643, 713 Wilkinson v. Moseley 86 V. Pearson 141 Williams v. Goude 317, 509 V. Walker 19 Willis V. Quimby 88, 1,55 Winchester's, Marquis of. Case Winchilsea v. Wauchope Winkley v. Kaime Witman v. Lex Wogan 17. Small Wood V. Wood Woodden v. Osbourn Woodman v. Hubbard Woods V. Moore Woodward v. James Wooton V. Redd Worthington v. Hylyer 159, 288 620 645, 699 679, 580, 681 141, 756 310, 613 664 149 647 482, 604, 742 487 648 Wright V. Doe d. Tatham V. Lewis V. Price V. Proud V. Rogers V. Tatham V. Wright Wright's Case Wrotesley v. Adams Wyatt V. Ingram Wyman v. Gould Wyndham v. Chetwynd Wynn ». Robinson Yates V. Boen V. Cole T. Z. 81 362 626 512 677 45, 92, 140 620, 663 47 663 609 144 16 248 322 610 Zane's, Sarah, Will 680 THE LAW OF WILLS. PART 1. TESTAMENTARY CAPACITY, OR THE DEGREE ' OF UNDERSTANDING REQUISITE TO THE MAKING OF WILLS. THE LAW OF WILLS. LEADING AMERICAN CASES, AND NOTES. INTRODUCTION. This volume will embrace cases upon those topics in the law of wills where the most controversy in the courts is likely to occur, and where, consequently, it will be likely to prove the more useful. We have confined the selection to the American cases, because they are by far the most numerous, and the most difficult of access. We know of no other mode in which the great mass of the profession, out of the cities and large towns, could readily obtain any considerable number of the American cases. With these views we have taken those subjects for this volume which seemed most important, and where such aid as it affords will be likely to be most in demand by, and most satisfactory to, tlie profession. We have thus endeavored to present something like a systematic treatise upon testamentary capacity ; undue in- fluence and fraud in the procurement of wills; the admissibility and effect of oral or extrinsic evidence to explain or aid in the construction of wills ; the extent to which equity will enforce stipulations made to induce the testator to omit making his will or giving a legacy in favor of particular parties ; the execution of wills ; and have added a brief selection of the latest American cases on the same topics. The volume is divided into parts, and these subdivided into chapters or sections, a summary of which is prefixed to the analysis of the contents, and follows immediately after the preface. 4 TESTAMENTARY CAPACITY. By turning to this summary, any one who desires it will see at a glance just what the book contains, and may thus readily find any portion he may desire to consult. "We have endeavored to have the arrangement natural and simple, and the character of the notes plain and practical ; and we hope the book will prove a valuable supplement to the former volumes, upon the law of wills. PART L TESTAMENTAKY CAPACITY. I. Procedure and Burden op Proof. The primary consideration in all cases in regard to the validity of wills is testamentary capacity. And the first inquiry under this head will be in regard to the mode of procedure and the burden of proof. There seems to be no serious question at the present time that the general burden of proof, in regard to wills, rests upon the executor or the party offering the will for probate. The cases upon this point will be found in 1 Redfield Wills, § 5, p. 30 et seq. But there is some difference of opinion, among those who have discussed the point, in cases where insanity or other defect of mental capacity is relied upon by the contestants, as to which party is to open the question, by the introduction of evidence at the trial, and upon whom the ultimate burden of proof rests, in regard to the want of capacity. The general rule, undoubtedly, is that the contestants of the will, upon the ground of defective mental capacity, must show something more than a mere equipoise of the evidence in their favor. For, in the absence of all proof, there can be no fair question the testator, like other men, is to be presumed sane, and of disposing mind and memory, although some cases have held the contrary. We shall now give some few cases where this point has been very carefully and critically examined. PROCEDURE AND BURDEN OF PROOF. 1. Brooks V. Barrett, 7 Pickerings Reports, 94. 1828. According to the practice in Massachusetts, in appeals from probate, either allowing or disallowing the will, it is to be heard in the appellate court, in the same manner as if first presented for probate in that court. Being proved by the subscribing witnesses, both as to the execution and the sanity of the testator, the will is to be allowed and set up, unless the party objecting disprove the facts thus established. The burden of proof is thus shifted from the executor to the contestants. But the executor will be entitled to go forward and have the open and close in the argument. If the proof in favor of insanity only makes the case doubtful, the general pre- sumption in favor of sanity must prevail. The effect of suicide near the time of executing the will, as tending to prove insanity. The facts sufficiently appear in the opinion of the court by — Parker, C. J. The witnesses who attested the will testified that in their opinion the testator was of sound mind ; many other witnesses testified to his conduct and conversation down to a short time before, and some to the very day of his death ; and from this testimony a sound state of mind in regard to the disposition of his property might be well inferred. Ou tlie other hand, it was proved that he was an aged man ; that he destroyed his own life a short time after he made this will ; that he was occasionally dejected, absent, and heedless of persons and things about him ; and these facts, taken in connection with the mental disease which had ap- peared in various collateral branches of his family, were supposed to makeastrong-casefor the presumption of insanity ; and, indeed, it was a strong case; and had the jury adopted that conclusion, we should find no reason to be dissatisfied. But this is a difficult subject for a jury or a court to decide upon. That species of insanity which is generally supposed to exist where the subject commits suicide, may be, there is no doubt, and frequently is, consistent with the exercise of usual discretion as to the manage- ment or disposition of property; indeed, the power of reasoning on other subjects may be wholly unimpaired. The law does not consider the act of suicide as conclusive evidence of insanity ; on the contrary, it is held as a crime, unless insanity is proved, and penalties, so far as they can be, are inflicted upon the perpetrator. 6 TESTAMENTARY CAPACITT. The compassion of juries of inquest towards the friends of the deceased, as often as the fact of insanity, interferes to shield the remains from what is by many thought a barbarous disposition of the law. And even if the act itself should be considered as proof demonstrative that the reasoning faculty was disturbed at the time of its commission, the difficulty of ascertaining with precision the very inception of derangement weakens its force in relation to any antecedent act. No doubt the instances are frequent, of perfect possession of the usual powers of thought and reasoning, and no ordinary discretion, until the very catastrophe. We are to look, then, to the evidence of conduct prior to the making of the will, and at the time, to ascertain whether the legal capacity existed, and in that we find nothing more than has generally appeared in persons laboring under partial bodily dfsease, united with the common infirmities of age. Occasional loss of memory, misappre- hension of names and persons, dulness of spirits, are the most that js proved ; with all which is contrasted the testimony of persons who saw and conversed with the testator on business or common occurrences down to the day of his death, from which they drew no inference of any alienation of mind. Now this state of things presented peculiarly a case for the discretion of the jury, and their opinion must of course be conclusive. It is supposed, however, that the ruling of the judge in regard to the burden of proof was incorrect, and that for this cause there ought to be a new trial; and in so balanced a case as this, much importance is properly attached to this part of the proceedings. It has heretofore been decided that a mistake of this nature in the judge entitles the party, who is deprived of the privilege which the law or the usage of proceedings gives him, to- a new trial. The executor was the appellant, and to him was awarded the opening and closing of the cause, notwithstanding the burden of proof in regard to insanity was thrown upon the appellees who opposed the will. The case of Phelps et al. v. Hartwell et al. is cited in support of this objection. That was a case in which insanity was suggested as a reason for setting aside the will. The appellees affirmed in their plea that the testator was of sound disposing mind, &c. ; the appellants, the heirs, denied this fact; and the question arising, which should open and close the argu- ments, to the jury, the court held that the affirmative was upon those who would set up the will, and, therefore, that the appellees PEOCEDUEE AND BURDEN OF PROOF. 7 must produce reasonable and satisfactory proof that the testator was sane, &c. The editor of the second edition of the first volume of our reports has thrown a doubt on this decision, which doubt, if the case is to be taken in the unqualified terms of the report, seems to be well founded. For the presumption of law is, that all men are of sound mind ; and those who would defeat this presumption by a suggestion of insanity, must prove the exception to the general rule. The apparent incorrectness of the opinion of the court in that case is probably the result of an imperfect report ; for it seems to lis that the ruling of the court as to the order of argument was riglit, though the expressions attributed to them as to the burden of proof required explanation. It was true to a certain extent, but not in the full measure stated in the report. By our statute of wills, all such instruments must be offered for proof in the probate office, and the subscribing witnesses are to be there produced ; and these witnesses are to testify not only as to the execution of the will, but as to tlie state of mind of the testator at the time. Without such proof no will can be set up. And this agrees with the English law on the same subject. Powell on Devises, 70 ; Wallis v. Hodgeson, 2 Atk. 56. And according to our practice, when there shall be an appeal from the decree of the judge of probate either allowing or rejecting the will, it is to be proved in the Appellate Court in the same manner as if first offered there for probate. Being proved, however, by the subscribing witnesses, both as to its execution and the sanity of the testator, the will is to be set up and allowed, unless the party objecting disproves the facts thus established. So that the burden of proof shifts from the executor to the heir, or other person opposing the allowance of the will ; but in this, as in all cases where there is an affirmative point to be made out by one party, he is to open and close to the jury. If his own evidence, that of the subscribing witnesses, is deficient, he is to make out the affirmative from the whole case ; if he makes out his case by the statute evidence, he has only to defend against tlie proof of insanity produced by the other party. And having produced the statute evidence, if the case is made doubtful by the evidence from the other side, the presump- tion of law in favor of sajiity must have its effect in the final decision. Buckminster v. Perry, 4 Mass. R. 593. We think whatever has been said by the court in any of the o TESTAMENTARY CAPACITY. cases decided, in regard to the affirmative being upon those who offer the will for allowance, must be taken with the above qualifica- tions. And this being the rule, it was rightly decided at the trial of this case that the affirmative was upon the executor, and so the opening and closing were with him. And the will having been sufficiently proved by the statute evidence, it was also rightly decided that the burden of proof in regard to insanity was upon the other party. This shifting of the onus probandi is quite familiar in the course of trials. In a suit upon a promissory note, or other written contract, on the general issue the plaintiff produces his note, proves the signature of the defendant, and stops ; the defendant then alleges payment, want of consideration, or other matter in defence; the burden of proof is upon him, and yet the plaintiff opens and closes the argument. And this is uniformly the case, unless the defend- ant by the form of pleading admits the plaintiffs right of action, but for the cause which he sets up in his plea ; no proof in such case being required on the part of the plaintiff. Upon the whole matter, therefore, we see no good cause for setting aside the verdict in this case. Decree of judge of probate reversed. 2. Baxter v. Abbott, 7 Gray's Reports, 71. 1856. As this is a valuable case upon many other points connected with the law of, wills besides the burden of proof, we give the opinion at length in this place. In the trial of causes in regard to the validity of wills, where iQsanity is urged in defence, the general presumption of sanity will prevail, unless there is some proof to the contrary. But still .the general burden of proof of mental competency of the testator to execute the will remains upon the executors, and is not changed by the general presumption of sanity. [If this does not involve a solecism, we cannot well conceive one.] In the trial of questions of insanity, ordinary practising physicians, who have had opportunity to know the habits and mental peculiarities of the testator, are competent to give opinions, as experts, upon the testator's mental condition. If it was a new question, I should be disposed to allow every witness to give his opinion upon questions of insanity, subject to cross-examination upon the PROCEDURE AND BURDEN OP PROOF. 9 reasons upon which it is based, his degree of intelligence, and his means of observation, — Thomas, J. It may be shown, upon trials in j-egard to insanity, that the ancestral relatives, direct or collateral, of the person were subject to insanity, or that any of them were, in fact, insane. The atte'station of a will is no evidence that the witness regarded the testator as sane at the time. The facts sufficiently appear in the opinion of the court by — Thomas, J. 1. The court are of opinion that the opinion of the physician should have been admitted, _ We think the settled practice in this commonwealth has been to admit the opinion of educated practising physicians upon subjects of medical science. Until quite a recent period, the disease of insanity has not been made a specialty. That it is now made a special study by a small number of physicians may be a good reason for giving to their opin- ion greater \^eight ; but it is not a sufficient reason for excluding the opinions of other physicians. It is well known that various classes of diseases, as those of the spine, the eye, the ear, the skin, have become specialties, especially in our larger cities, where such division of labor becomes practicable. But tliis fact does not render incompetent upon these subjects the testimony of other physicians, who must necessarily have less experience. The difference is in the weight, rather than the competency of the testimony. Even upon the matter of weight, there are one or two suggestions which will not escape the attention of those reflecting upon the sub- ject. Those who have been accustomed to try issues involving the sanity of testators, their capacity to .make wills, will have observed that in a large proportion of the cases the alleged want of capacity is in the infirmity and decay of the faculties, resulting from old age, or the weakness and prostration of disease, or from the two combined. The cases of distinct delusion are quite rare and ex- ceptional. The far greater number of issues as to sanity, therefore, fall within the ordinary range of a physician's practice. A physi- cian of large experience could scarcely be found, who had not been often called to consider and form an opinion upon the capacity of his patients to make wills. Supposing the question was as to the gradual decay of the faculties of the testator from disease or old age, one cannot ^ut see that the opinion of an intelligent family physician, familiar with his patient's infirmities, and watching them 10 TESTAMENTARY CAPACITY. at every stage of their progress, would and should have far greater weight with a jury than that of any number of physicians who had made insanity a special study, but who were called to give an opin- ion upon what is always, and necessarily, an imperfect statement of the facts and symptoms. Or, if the case were one of an original defective capacity, the judgment and opinion of the old family physi- cian would be worth more than that of the masters of the science of insanity, who can have but a fragment of his history. All lawyers know how difficult it is to try issues of sanity with the restrictions as to matters of opinion already existing ; how hard it is to make witnesses distinguish between matters of fact and opinion on this subject ; between the conduct and traits of char- acter they observe, and the impression which that conduct and those traits create, or the mental conclusion to which they lead the mind of the observer. If it were a new question, I should be dis- posed to allow every witness to give his opinion, subject to cross- examination upon the reasons upon which it is based, his degree of intelligence, and his means of observation. It is at least unwise to increase the existing restrictions. To adopt the limitation made by the rule of the presiding judge would be to confine opinion on questions of insanity to those physi- cians who have made insanity a special study and pursuit. As most cases of insanity are treated in hospitals and public institu- tions, the limitation would practically confine parties to physicians who were or had been engaged in those institutions. The number of these is so small, and their attendance so difficult to be procured, that the limitation would be in effect an exclusion of matters of opinion upon subjects where it is .difficult even for the best trained minds to distinguish and adhere to the line which separates opinion from fact. For with respect to the powers and faculties of the mind, it is obvious, we can directly know nothing. We know them only as they are manifested in action. Nor, if the opinions of persons who have made the subject of mental disease a special study could be had, would it be wise to limit matters of opinion exclusively to them. Large as is the debt which science and humanity owe to them, great as are the advan- tages which spring from the devotion of the mind to a special study, a not infrequent result is — what it used to be said was the mark •of a good judge — a tendency to enlargement of jurisdiction. As it is, it cannot be wholly avoided. PROCEDURE AND BURDEN OP PROOF. 11 To put upon the stand a skilful physician (and such an one has never understood the bodies of his patients unless he has known also something of their minds, and the action of one upon the other), to get from him the history of his patient, the state of his bodily health, his conversation, conduct, traits of character in sick- ness and in health, and then to exclude the opinion which, as the result of all, his mind has almost insensibly and necessarily formed ; and yet, upon this imperfect history of his patient, to ask a perfect stranger to that patient to give his opinion of his mental condition, because he has made mental disease a special study, — would be to reject the most valuable evidence, for that which, in the nature of things, must be of far less worth. Upon a subject of such intrinsic difficulty the jury should have the aid and assistance of both. In the case at bar, the doctor had been the medical adviser of the deceased, as well as a physician of experience. The precise point decided is, that his opinion as to the sanity of his patient should have been admitted in evidence. It is suggested in the argument of the appellees that the ques- tion whether the witness is an expert or not is, under all the facts, one to the discretion of the court. In this case, it is sufficient to say the facts are reported and the point reserved by the presiding judge. But the decision involves not merely a judgment upon the facts before the judge, but a general rule applicable to the trial of all similar causes. It is, therefore, a question of law for the consid- eration of the whole court. 2. The appellants' counsel offered to show by the same witness that the testator's family, both on his father's and mother's side, were subject to insanity, and that his fatlier and mother and an uncle of his were insane. But the presiding judge ruled that the testimony to these facts was inadmissible. We think the practice has been to admit such evidence. See, among other cases, Trial of Rogers, 144. We think the practice is right in principle. It rests upon the ground of the hereditary character of insanity, that a predisposition to the disease is fre- quently transmitted from parent to child. With such predisposi- tion, the malady may not show itself in the child ; for the child may not be exposed to any exciting cause. But with such hereditary taint, insanity supervenes from slight causes — causes apparently wholly inadequate to affect a mind without the predisposition. In making a diagnosis of such a case, we suppose that among the first 12 TESTAMENTAET CAPACITY. questions which would be put would be, whether the parents of the patient were or had been insane. With the fact that the father and mother, or either of them, had been insane ; that the insanity ha^ appeared in them about the same age, and in the same form, — its existence in the child is rendered more probable, and is believed upon less perfect evidence. The transmission of this predisposition to insanity is matter of general observation, and is recognized by the best medical authori- ties. Bsquirol says this hereditary taint is the most common of all the causes to which insanity can be referred. Esquirol on Mental Maladies, translated by Hunt, 49. See also 1 Beck's Med. Jur. (10th ed.) 725; Taylor's Med. Jur. (Eng. ed.) 629; Kay's Med. Jur. § 72 ; Combe on Mental Derangement (Amer. ed.), 96, who says that authors who differ on all other points agree in this. See also Prere v. Peacocke, 3 Cart. Bccl. 664. 3. The evidence of the declarations of Scott, the deceased sub- scribing witness to the will, was rightly excluded. The fact that he attested the will as a witness does not, we think, furnish evi- dence of any opinion he had as to the sanity of the testator. He may have had no opinion on the subject. He may have attested the will with the full belief that the testator was insane, and with the view of testifying to that opinion whenever the will should be offered for probate. No inference as to his opinion can be drawn from the mere fact of signing ; and therefore evidence of a contra- dictory opinion expressed by him was inadmissible. The instruc- tion of the presiding judge on this point, cannot, we think, be sustained. 4. The witness Webster having testified to facts, as to the con- duct and appearance of the testator in November, tending to show insanity, also testified, we suppose on cross-examination, that he made a bond for a deed from the testator to one Hutchins ; that he at first refused to make the bond, but after a conversation with Hutchins, aside from the testator, concluded to do so. The effect of this fact was doubtless to control the evidence before given ; practically, and in the most forcible way, to contradict him. He should therefore have been permitted to state the reasons which induced him to make the bond, and thus to show that the apparent inconsistency in his conduct was not real ; that the object and pur- pose of himself and the obligee, in the making of the bond, were consistent with their belief in his legal incapacity to convey his PEOCEDURB AND BURDEN OF PROOF. 13 estate. It was not conversation with other third parties. It was strictly part of the res gestce, giving character to the act done, by showing with what motives and for what purposes it was done. 5. The appellee, the person named m the will as executor, was clearly competent as a witness after his release of the costs. St. 18-39, c. 107, § 2. The statutes passed since the trial have made him a competent witness, on another trial, without such release. Sts. 1856, c. 188 ; 1857, c. 305. 6. A majority of the court think the instruction to the jury, that the legal presumption, in the absence of evidence to the contrary, was in favor of the sanity of the testator, was correct. We all agree that it does not change the burden of proof, and that this always rests upon those seeking the probate of the will. See Crownin- shield V. Crowninshield, 2 Gray, 532. The opinion in that case expresses my own view as to the existence of the legal presump- tion. Exceptions sustained. 3. Thornton v. Thornton, 39 Vermont Reports, 122. 1866. s. c. 6 Amer- ican Law Register, New Series, 341. The executor, or whoever offers a will for probate, must call and examine all the subscribing witnesses, within the reach of process, and competent to give testimony. If any of the witnesses give testimony adverse to the plaintiff, he may show that such witness had made statements out of court in conflict with his testi- mony, for the purpose of detracting from the weight of such testimony. The testimony of the subscribing witnesses to a will is not entitled to special regard, on that account merely. The draft of a former unexecuted will is evidence in regard to the present will having been executed freely and understandingly. Evidence that the will contains one or more legacies, which would not have been thought of but for the promptings of others, does not necessarily prove incapacity or want of freedom. It may be proper testimony for the con- sideration of the jury upon these points. The court, in the trial of the question of undue influence in procuring a will, is not bound to instruct the jury that any particular portion of the testimony, if believed by them, will or will not justify a verdict against the validity of the will. All that is required is that the jury be properly instructed as to what will amount to undue influence in such cases. The facts in the case sufficiently appear in the opinion of the court by — 14 TESTAMENTARY CAPACITY. Steele, J. I. 1. In the County Court, upon appeal from the Probate Court, on trial of the issue whether the probate should pass, the proponent of the will examined two of the attesting wit- nesses and produced the third. Dr. Woodward, but declined to examine him. The court ruled that the third must also be exam- ined by the proponent. The third was accordingly under this order of the court examined, but only in respect to the formal execution of the will. Then, on cross-examination, the witness stated in substance that the decedent was not, in his judgment, of testamentary capacity when he executed the will in question. After the usual preliminary inquiries, the proponent was permitted in the progress of the trial, for the avowed purpose of impeaching the credit of the witness Woodward, to prove, by the deposition of Mr. Parker and by other persons, that the witness had out of court expressed a different opinion, to the effect that the decedent was of sound mind at the time, and that his faculties seemed to have been just spared to make this will. To the admission of this impeach- ing testimony the contestants excepted, upon the ground that the proponent should not be allowed to attack the credit of his own witness. The first question for decision is, whether it is necessary for the proponent, in order to establish a will, to produce and examine all the attesting witnesses, when in his power so to do. If this is not necessary, Dr. Woodward might be treated as not the witness of tlie proponent. The case would resemble Rex v. Oldroyd, Russ. & Ry. Cr. Cases, 88, in which the judge of his own motion called as a witness the prisoner's mother, whose name was indorsed on the indictment as one of the witnesses for the prosecution, but who had not been called by the prosecuting counsel. Her testimony proved favorable to the prisoner ; and the court then permitted her to be impeached, by reference to her former deposition. In this, although the trial was upon an indictment for murder, all the judges, including Lord Mansfield and Lord Mlenhorough, held there was no error. Our statute requires wills to be attested by three witnesses, but is silent as to the manner in which they shall be proved when contested. When not contested, the statute provides that they may, in the discretion of the judge, be admitted to probate upon the testimony of one of the subscribing witnesses. G. S. p. 379, § 18. This provision would indicate that more were to be required PEOCEDUEE AND BUEDEN OP PEOOP. 15 in other cases. In an English common-law court, when, as in an action of ejectment, the issue was made upon the validity of a will, the devisee was obliged to call but one of the attesting witnesses, if that one testified to a sufficient execution. 1 Phil. Bv. (Cowen & Hill's ed.) 496, 501 ; Anstay v. Dowsing, 2 Str. 1254 ; Jackson ex dem. Le Grange v. Le Grange, 19 Johns. 386. In the eccles- iastical courts, it was necessary that all should be produced by the devisee, if in his power ; but he was not required to examine all himself. The Lochlibo, 1 Eng. Law & Eq. 645-647. It is urged that one or the other of these rules should prevail here. But it is to be remembered that at common law a will is proved merely for the purpose of the case on trial, and may be again put in issue ; and in the ecclesiastical courts it was proved with reference to the distribution of none but personal estate. 2 Bouvier's Bac. Abr. 730. The only method by which, until recently, a will, when it related to real as well as personal estate, could be established in England, was by a bill in chancery ; and in such cases, says Lord Camden (Hindson v. Kersey, 4 Burn. Bcc. Law, 91), it was the " invariable practice " to require the three witnesses to be examined. It would seem, however, that upon an issue in chancery, other than for the purpose of establishing the will, the examination of the three witnesses was not required. So, in the case Tatham v. Wright, 2 Russ. & Mylne, 1, reported also in 6 Eng. Ch. Rep. 366, where the will was attacked by the heir-at-law, who brought his bill praying that the will be declared void, and the devisee be restrained from setting up a legal estate as a bar to an ejectment, and issues upon the validity of the will were made up and sent out for trial by jury before Parhe, J., one only of the subscribing witnesses was examined by the devisee, the others being produced in court and offered to the other party. The verdict being in favor of the will, the heir-at-law filed a motion for a new trial, which was refused by Sir John Leach, Master of the Rolls. The heir then moved the Lord Chancellor for a new trial, and in the mean time his counsel, Mr. Brougham, who had acted for him before the jury and had argued in behalf of the motion before the Master of the Rolls, had himself become Lord Chancellor. Under these circumstances Lord Brougham asked Lord Chief Justice Tindal and Lord Lyndhurst to sit with him, and all three agreed that the motion was not well founded and must be refused ; Lord Brougham remarking, " there is a broad 16 TESTAMENTARY CAPACITY. line of distinction between cases where the moving party seeks to set the will aside, and cases where the moving party is a devisee seeking to establish it ; the rule which makes it imperative to call all the witnesses to a will must be considered as applicable to the latter only." The application of this rule to proceedings in which wills are " established " is also recognized in the opinion of the Lord Chief Justice in behalf of himself and the Lord Chief Baron. The same doctrine was distinctly held by Lord Mdon. Boottle v. Blundell, 19 Ves. Jr. 501-508. See also Chase v. Lincoln, 3 Mass. 236 ; 1 Phil. Ev. (Cowen & Hill's ed.) 496-497 ; Ogle v. Cook, 1 Ves. Sen. 177 ; 10 Bouvier's Bac. Abr. 518-519, and cases cited. There are some dicta to the effect that this rule was not invariable, but we are aware of no English case in cliancery, in which a will was estahlished without the production and examination of all the subscribing witnesses, if all were within reach of process and ob- tainable, — unless it may be in case of waiver by the heir-at-law. It is held that the production of attesting witnesses is excused by proof of their death (Nickerson «. Buck, 12 Cush. 332), insanity (Bernett v. Taylor, 9 Ves. Jr. 381), absence from the country (Lord Carrington v. Payne, 5 Ves. Jr. 404), or incompetency arising subsequent to their attestation (3 Redf. Wills, 42 ; G. S. p. 378-379, §§ 10, 19. See also Wyndham v. Chetwynd, 1 Black. Eep. 95). The rule which requires them all to be examined, if practicable, is founded upon reasons of policy and caution, and has no reference to the measure of proof necessary to establish a will, which is a measure no greater than is usually required to estab- lish a fact. Dean v. Dean, 27 Vt. 750. The proponent of a con- tested will is entitled to prevail, if there is a fair balance of testimony in favor of the validity of the will. We think, if our statute requires any aid for its interpretation from the English practice, in determining how many subscribing witnesses should be called to prove a will, we should look to that English court in which alone wills were, as in our Probate Court, established ; and to the rule of that court in establishing wills, instead of regarding the rule at law or in the ecclesiastical courts, or even in the recent English Court of Probate. So far as we are informed, the production and examination of all the witnesses have been always required and thought necessary in this State. See opinion of Isham, J., in Dean V. Dean, 27 Vt. 749. We are of opinion that the court was cor- rect in ruling that the proponent must examine all the attesting witnesses. PROCEDURE AND BURDEN OF PROOF. IT 2. This being settled, the next question is, Was the testimony on behalf of the proponent to impeach one of these witnesses, by his previous declarations, admissible ? It is useless to attempt to justify the admission of this testimony under any general rule. The due execution of a will involves the question of sanity as well as of signature ; but even if this was not so, and the cross-exam- ination instead of being legitimate had been so much upon a new subject as to deprive the contestant of the right, except by leave of court, to ask leading questions, still, under the general rule, the witness remains the witness of the party who produced him, so far that he may not be impeached by that party. Penton v. Hughes, 7 Ves. 287 ; EUicott v. Pearl, 12 Curtis, 187, 188 (from 10 Pet. 440, 441). Nor can the testimony relating to the previous decla- rations of the witness be regarded as proof of a substantive fact (Gould V. Norfolk Lead Co., 9 Cush. 338), so as to come within the rule which permits a witness to be contradicted, and thus incidentally impeached, by proving the facts in issue to be different from his statement of them. Friedlauder v. London Insurance Co., 24 B. C. L. 47, 4 B. & Ad. 193 ; Ewer v. Ambrose, 10 E. C. L. 220 and note, 3 B. & C. 746 ; Sigfried v. Levan, 6 S. & R. 308 ; The Lochlibo, 1 Eng. L. & Eq. Rep. 645-651, a rule wiiich is so well recognized that while a will may not be established without the 'evidence of the attesting witnesses, it may be established against the combined testimony of them all by proof from others. Lowe V. Jollifife, 1 W. Black. Rep. 365 ; Adams v. Field, 21 Vt. 256 ; Jauncey v. Thorne, 2 Barb. Ch. 40 ; Bowman v. Christman, 4 Wend. 277 ; 10 Bouvier's Bac. Abr. 527, and cases cited. The declarations of Dr. Woodward out of court cannot be sliown to prove his opinion. Such statements could only have weight in impeaching the credit of Woodward, and not in establishing what his opinion was of how the fact was. Tiiat the proponent exam- ined the witness only so far as the law made it his imperative duty to examine him ; that he then sought to impeach him, not by attacking his general reputation, but only in respect to this testi- mony by his own declarations inconsistent tlierewith ; that these declarations were made after he was selected as an attesting wit- ness by the decedent ; that whatever the usual presumption of law is, his credibility was, in fact, not Indorsed by the party who called him under compulsion, — are rather reasons to be urged why ' this testimony should be received against the general rule, than 18 TESTAMENTARY CAPACITY. arguments to prove that such testimony is receivable under it. On the other hand, there is no force in the objection to the admis- sion of this testimony so far as it is put upon the ground that it is an impeachment of the legal proof, without which the will may not be established ; for the will may, as has already been remarked, be established against it by other proof. The rule which provides that the will shall not be probated without this testimony, does not provide that it shall not be probated without this testimony in its favor. Being participants in the execution, if the will was duly signed, and thus having special opportunity and occasion to observe and know what the trier must ascertain to determine upon the validity of the will, the law as well as sound policy requires them to be called and heard. It does not require them to be believed. Their claim to belief depends not only upon their opportunities of knowledge upon tlie subject, but also upon their care, skill, judg- ment, memory, and truth. While it is settled that their testimony may be overcome or outweighed by testimony from others, pro- duced on behalf of the same party, the question now is, whether t\\e force of their testimony to be thus overcome may be lessened by an impeachment of their credit, as was done in this case, or whether, on the contrary, the proof from others must be sufficient to establish the fact and outweigh or overcome theirs, not lessened in force by any such impeachment. We are not aware that the rule, that a party is estopped from impeaching the credit of his own witness, has ever been recognized as inflexible. It is not so treated by the text writers. Mr. Phillips says, it will not in general be allowed, but in remarking upon im- peachment by previous declarations, refers to the opinion expressed by Lord Mansfield and Lord Ullenborough in Oidroyd's Case, before referred to, to the effect that the prosecutor would have had the same right with the court to impeach the credit of the witness by her former deposition under the circumstances of that case. Mr. Starkie also refers to the question as unsettled, and thinks that upon reason and principle it should, in some cases, be allowed to the extent of proving the representations of the witness upon the subject in relation to which he testified. Mr. Greenleaf refers to the question as one upon which there is a diversity of opinion, but says that the weight of authority seems to be in favor of allowing witnesses to be impeached by former declarations, iu some cases. In the course of his discussion of the subject, he refers particularly PROCEDURE AND BURDEN OP PROOF. 19 to cases in which the witness is one " whom the law obliges the party to call, such as the subscribing witness, to a deed or will or the like ; " and seems to think their general credit may be im- peached by the party calling them. 1 Phil. Ev. (Cowen & Hill's ed.) 309-311 ; 1 Starkie's Ev. 217-220 ; 1 Greenl. Ev. § 443. See also discussion of cases relating to right of party to contradict, and sometimes even to discredit, his witness, in 2 Ph. & Amos Ev. (5th Am. ed.) 838-843 [*902 et seq.]. Nor are the books destitute of express judicial decisions to the same effect. The refusal to admit precisely such testimony as this on the part of the proponent, to impeach the subscribing witness of a will, was disapproved by the Supreme Court of Pennsylvania in Cowden v. Eeynolds, 12 S. & R. 280, and a new trial granted that it might be received. So, too, in Dennett v. Dow, 17 Maine, 19, a new trial was granted upon the sole ground that the court below rejected such testimony in a trial upon the issues of the sanity of the testator, and the due execution of the will. This case was affirmed by Shorey v. Hussey, 32 Maine, 579. In South Carolina, the admission of evidence to impeach the general credit of the subscribing witness to a deed, on the part of the party who called him, was approved. Williams v. Walker, 2 Rich. Eq. Rep. 291. In Bootle v. Blundell, 19 Vesey, Jr. 500, 502-509, all the attest- ing witnesses gave their depositions in the Court of Chancery, but upon trial of the issues sent by the court to the jury one only of the subscribing witnesses was examined, the plaintiff declining to ex- amine the other two. The plaintiff introduced other proof, strongly in his favor, and the defendant then gave up the cause. After- wards the defendant moved for a new trial, because all the attesting witnesses were not examined. The Lord Chancellor (^Eldon}, hold- ing that the heir-at-law might waive the rule of court for his benefit that all the attesting witnesses must be examined, and from an examination of the whole record being satisfied that their testi- mony would not alter the result, and guarding the case as a prece- dent, denied the motion ; but expressed great dissatisfaction with the irregularity of the trial, and remarked that the subscribing witnesses " are the witnesses of this court and not of either party, as erroneously considered." " If," he says, " the object is to establish a will, this court does not give the devisee the opportunity of carrying it before a jury until all the three witnesses have been 20 TESTAMENTARY CAPACITY. examined, and will have them all examined, considering them as its witnesses without entering into the dispute frequently occurring in a court of law, whether the person called is the witness of the one party or the other." " This court, therefore, before an heir shall be deprived of that opportunity which the law gives him by repeated ejectments to question again and again the validity of the will, until his conduct constitutes a case of that vexatious nature which induces the court to grant an injunction, the court, as it will know the whole truth, expects that all the witnesses shall be examined on the one side or the other. If I had tried such an issue I should have told the jury that these witnesses, if not to be considered the witnesses of the plaintiff, were not, though they had been called by the defendant, his witnesses, but that this was a proceeding to try the actual fact with a view to the information of this court, who must, to establish the will, know the whole ; and therefore the case must go to trial without that prejudice which is the consequence of considering them as the witnesses of either party, and merely as a judicial proceeding to inform the court." See also Coles v. Coles, Law Rep. 1 P. & D. 70. In all these cases the witnesses were wliat may be called instru- mental witnesses. Many cases may be cited the other way (as see Brown v. Bellows, 4 Pick. 179 ; .Queen v. State, 5 Harr. & John. 232 ; Lawrence v. Barker, 5 Wend. 301 ; Whitaker v. Salisbury, 15 Pick. 534) ; and in such a conflict of authority, this being the first occasion on whicli the question has, so far as we are informed, arisen here, we have felt considerable hesitation about admitting an exception to a wholesome general rule. But where the reason of a rule ceases the rule generally should, also, unless some special inconvenience or mischief will be likely to arise from the practical application of the exception. Tlie reason of the general rule is that a party should be estopped from impeaching the credit of the witness whose credibility he indorses by calling him. The reason fails when in fact the party is, as in this case, compelled by law to call him, no matter how much he doubts the credibility of the witness, before he can be allowed to prove his case by others on whom he relies. There certainly would seem to be no ground in reason or convenience in holding the party estopped from impeach- ing such a witness to the extent of proving his former declarations on the same subject. The fairness of holding a party estopped by reason of an act with relation to which he has no choice, or by an PROCEDUBE AND BURDEN OF PROOF. 21 indorsement which he does not make of a witness whom the law calls and makes current whether tiie party indorses him or not, may well be questioned. It would seem enough that the party is obliged to examine him and make his way through him by such an ■impeachment, and to prove the facts by others, — that he is required to furnish the court with the testimony of the attesting witnesses on account of the presumption of their knowledge of the matter, with the permission to endeavor to overcome their testimony if adverse, — without tying his hands in the effort to overcome it, by depriving him of the ordinary, natural, and most effective means to aid him in so doing. The case is quite different from the one supposed, in which the only person who knows a material fact, as in an assault, is called from the necessity of the ease and testifies against the party who called him. If no one else knows the fact, the party cannot be benefited by impeaching the witness, because that will not prove the fact ; and if any one else does know it and is reliable, he should have seen to it that he called the reliable witness. He is at liberty to choose. But if by some rule of law he was first compelled to call one of the witnesses in preference to the other, the cases would be similar. It is strongly urged that though the witness may not have been indorsed by the proponent, he was indorsed by the decedent. .If we assume that he signed at the request of the decedent, which in some cases might be the point in question, and that the devisee who claims through the will to represent the decedent is more responsible for the decedent's selection than the contestant who claims by heirship to represent him, still the case stands very differently from the case of any other than an instrumental witness. That individual of the by- standers who was asked to write his name as a witness must be called. In ordinary cases of requesting a by-stander to remember and bear witness, the party would not be required to call the per- son whose attention was invited, if he preferred to call others instead. Tlie witnesses to an instrument, even if carefully selected at the time they attest, may change in character, feeling, and interest before being called to> testify. To forbid the proponent the impeachment of a witness to the will by his own declarations made after his selection as an attesting witness, while, if lie becomes entirely incompetent, the will may be proved without his testimony, would, we fear, be carrying the general rule to an extent which would be inconsistent and could only be justified by 22 TESTAMENTARY CAPACITY. artificial and arbitrary reasons, and which would not be calculated to aid the truth, the ultimate end of laws of evidence. We are aware that many but not all the reasons for admitting this testi- mony would apply as well to an impeachment of a general nature. But the authorities have in many instances made a clear distinc- tion between the admission of an impeachment of the general veracity of the witness and an impeachment by proving declara- tions of the witness inconsistent with his testimony. Whether the distinction is well taken we desire to express no opinion. We think this testimony, to the extent and under the circumstances of its admission in this case, was properly received. 3. Another question grows out of the testimony of this attesting witness. Dr. Woodward. The contestants excepted to the refusal of the court to instruct the jury- in accordance with their sixth request " that the testimony of Dr. Jonathan D. Woodward, as being one of the subscribing witnesses to the instrument in ques- tion and the attending physician of the alleged testator, was entitled to much consideration on the question of capacity, and raised a strong presumption against the validity of the will." The weight of his testimony, so far as it depended on his being a medical attendant of the decedent, must be conceded to have been a matter of fact with relation to which the comments of the court are not a subject of exception. But it is claimed that the weight of his testimony, so far as it depended on his being a subscribing witness, was a matter of law, and that the court was bound to rule as requested, even though the witness was contradicted by both the other subscribing witnesses and by his own previous declarations, and even though by his own statement he made no suggestion to any one, at the time of the execution of the will, that he doubted the testator's capacity, and was not sure that he had any conversa- tion with the testator on the day in question. The court in response to this request told the jury that they should consider his pro- fessional skill and experience, but that the weight and value of his testimony must also be determined, like that of the otlier witnesses on this subject, " with reference to his opportunity for observation, his skill and care in observing, his intelligence and powers of dis- cernment and memory," which doubtless would ordinaraly be a correct rule for measuring the value of the testimony of a trutliful witness. Is there a weiglit given by law to tlie testimony of a subscribing witness apart from or beyond what it would be entitled PROCEDURE AND BURDEN OP PROOP. 23 to under these considerations which usually govern the value of testimony ? We think the prominence which, in opinions where both law and fact are discussed, is given by courts to the testimony of a subscribing witness to a will, arises from his acknowledged opportunity of observation at the precise time in question, and from the probability 'of his iising tlie opportunity on account of his participation in the transaction. If it clearly appears from his own testimony that he did not use the opportunity, this special value of his opinion ceases. It is because of this opportunity, and not because he wrote his name on the instrument, that the testimony of an attesting witness is usually listened to with atten- tion, and it was with reference to tliis opportunity that the jury were instructed to weigh the testimony of Dr. Woodward. It was not entitled to more weight than testimony from other witnesses of equal credit, better opportunity, and more judgment and knowledge upon the subject. It should not be invested by law with any fictitious official weight, so as to pass for more than it is wortli ; and its real value, if truthful, is measurable by the rules laid down by the court; This question is to some extent involved in the one already passed upon. If evidence to impeach the credit of Dr. Woodward was properly received, it would hardly be consistent to hold as a matter of law that his testimony deserved especial con- sideration and carried a strong presumption with it, whether his credit was successfully impeached or not. We find no error in the refusal of the request or in the instructions of the court upon the subject. II. The contestants in their eleventh request asked the court to rule that, for the reasons named in their request, " the evidence in regard to the two previous wills drawn up but not executed by the alleged testator, aiforded no proof of any intention on his part that could be taken into consideration on the question of capacity or influence." It is well settled that evidence of previous wills, executed or unexecuted, drawn under the instructions of the testator, is admissible. So, too, evidence is received, as was done here, to prove the condition of the testator's estate, his family relations, affections, and declarations of testamentary intention, accompanied by no act. Such evidence informs the triers of the preferences of tiie testator, and the operations of his mind upon tlie subject, when he was confessedly in sound health, and thus aids them in determining whether the instrument in question was 24 TESTAMENTARY CAPACITY. the work of the same will. The counsel for the contestants con- cede in argument the admissibility of this testimony, but deny that it is entitled to any force. To be admissible, it must be relevant to one of the two questions tried, capacity and influence ; and if the court had told the jury, as requested, that it was not to be considered on either of these questions, he would have ruled the evidence out of the case. The reasons of the request are, in sub- stance, that the other testimony in the case destroyed the force of this. The jury would be the judges upon that question if the other testimony was conflicting, or if it was of a character not to necessarily deprive this testimony of all weight. The first ground upon which this request is based is, that the testimony of Colvin shows the two unexecuted wills to be unlike. If they were sub- stantially unlike, it might lessen but not tiestroy their title to con- sideration. The testimony of Colvin does, however, tend to show that they were substai)tially alike. The draft of 1858, as he says, was left unexecuted by the decedent on account of a difficulty between the testator and the heirs of his deceased son Jeremiah, which it appears involved not over six hundred dollars, and the draft of 1860 was made in order, as the testator said, to make this right. The witness remembers no other material changes. The heirs of Jeremiah were still made legatees in the draft of 1860, and were provided for more generously than other grandchildren of the testator. The second ground of this request is, that the draft of 1860 was made with relation to this difficulty, which the contestants' evidence tended to show ceased before the will in question was executed in 1865. The testimony on the subject of the continuance of the difficulty was conflicting, and the court could not in any event have based upon it the charge requested, without deciding the fact. But assuming that the jury found that the difficulty was healed, the case is not changed ; for the will of 1865 did make a different bequest to these heirs from the one provided in the draft of 1860, while most of the legacies remained substantially the same. They were precisely the same to the heirs of his other deceased son Stukely. No change was made in the legatees, with the exception of the addition of Mary E. Maranville, who was not born wiien the draft was made, and is made to divide the bequest which was there provided for her sister, and the sub- stitution of the widow of Abel Thornton, as residuary legatee, in the place of Abel Thornton himself, he having died since 1860, PROCEDURE AN]^ BURDEN OF PROOF. 25 and before the execution of the will in question. The other rea- son, which is made the ground of this request, is the fact that the testator kept the draft of 1860 until 1865 without executing it. This was a proper subject of comment on both sides, but that an intention is not executed is not conclusive proof that no intention existed. Upon the undisputed facts of the case we think the court was justified in telling the jury that the instructions to Oolvin, with relation to drawing the unexecuted will of 1860, should in any event be regarded as affording " very considerable light " upon the question of the testator's intentions. So far as the will in question varied from the draft, or so far as that part of the in- structions which related to the heirs of Jeremiah affected the case, the contestants had the advantage of it under this charge. "We therefore think there was no error in this portion of the charge, either considered with reference to the refusal of the request, or considered affirmatively with reference to the instructions the court did give the jury. III. 1. The court refused to permit the party to be inquired of whether it was not his apprehension that Wood would testify in a particular manner which induced him to discharge Wood from further attendance, on his behalf, as a witness. It is not claimed that the witness was concealed. He was merely discharged, and afterwards summoned and examined by the other party. We think no error can be based upon this ruling. 2. Nor do we think that the refusal of the court to permit Willard, after he returned and corrected a point in his testimony, to be re-cross-examined except strictly upon the point corrected, can be treated as a ruling upon a question of law. In the opinion of the majority of the court, it was entirely in the discretion of tlie judge whether the cross-examination should be thus limited or not ; and in the opinion of other members of the court the question was improper, because it called the attention of the witness to no single point in his testimony in the Probate Court, but to the whole collectively, and assumed that there was a contradiction between the testimony of the witness then and in the County Court. 3. The question allowed to be put on cross-examination to Dr. Allen is objectionable, because it assumes a state of facts upon which no medical or expert opinion could be based. Dr. Allen seems to have so understood it, and declined to give any sucii professional opinion, but replied in substance : " I must understand 26 TESTAMENTARY CAPACITY. from your question that the man was able to make a will " The whole matter stands as if the question was unanswered, and the propriety of the question, as the correlative of the one asked on the examination in chief, need not be considered. IV. 1. The contestants except to the refusal of the court to tell the jury, in accordance with the third and fourth requests, that if his wife and the great-grandchildren, Stukely, Maynard, and Flora J. and Mary E, Maranville, who are all legatees, would liave been omitted in the will by the testator, without motive, but for the promptings and suggestions of others, they would be authorized to infer testamentary incapacity. The main evidence upon which this request is founded is the testimony to the effect that some one said to the testator, when he was giving his instructions for the drawing of his will, " you must not forget Stukely and tlie little ones," and he said he had not, and' remembered them with the same amount of property he had set apart for them in the un- executed draft ; and the testimony of another witness that his wife who was present said to him that he must not forget Stukely, and he replied, " I must not forget my wife." It is not clear that any one used this language with reference to any supposed lack of memory. It seems rather to have been used as an expression, on tlie part of the heirs who were present, of their desire that these little ones should be remembered with a bequest. We think the evidence that they would have been forgotten is exceedingly slight and inferential. There is other evidence of conversation between the testator and the scrivener, and with the wife as to her legacy, but it adds very little, if any thing, to that mentioned. That a legacy is made which would not have been thought of but for the suggestion of another does not necessarily prove incapacity. It might occur with the strongest nlind in the vigor of youth and health. The fact that such suggestions were made is proper evidence to consider with other circumstances upon the question of capacity. The court did tell the jury, in response to the second request, that tlie testator must have been capable, without prompt- ing, of collecting and retaining in his mind, long enough, to form a rational judgment upon them, the amount and condition of his estate, the names and number of those having claims upon him, their relative merits and necessities, and what he had before done for each ; in short, that " he must have been capable of recollecting the full state of all his affairs, and of weighing the just merits and PROCEDUEE AND BURDEN OF PROOF. 27 demerits of those who belonged to him, by remembering all and forgetting none ; " subsequently properly explaining and qualifying this expression so as not to fix a standard of capacity equal to the transactions of an extensive or complicated business. We do not think that the contestants were entitled, in addition to this, to an application of this rule to a supposed omission of particular indi- viduals which the jury might find would have been made but for the prompting of others. To say to the jury that, from this scrap of evidence, they might infer that some one would have been for- gotten, and that from this inference they migbt infer testamentary incapacity, and to make this the subject of a distinct separate sub- mission to the jury, would have been giving this evidence a very undue prominence. It would have been more becoming in the argument than in the charge of the court to the jury. We think that it was enough that this evidence was given the jury, with other surrounding circumstances, to be weighed on the main question. 2. For somewhat similar I'easons we think the court was right in refusing the ninth request, in wliich the contestants had collated certain conceded and certain disputed facts, and, isolating them from others which would affect their force, asked the court to say to the jury, that they might infer undue influence from tliem if found. The court properly explained to the jury what would amount to undue influence, aud called tlie attention of the jury to the different classes of testimony tending to show_ it, and left it for them to say how the fact was. It was not the duty of the court to isolate a part of the case from tlie other facts which affected it, and make this unreal case the subject of one separate branch of his charge. All the matters named in the ninth request, namely, the age of the testator, his infirmity, the nature of his malady, the fairness of the will, the effects of undue importunity, the cir- cumstances under which the will was made, were called to the attention of the jury, and they were left to decide the question of undue influence in view of all the facts together. The court was not bound to tell the jury just how much evidence would be sufficient to sustain a verdict upon the ground of undue influence. Had no other facts appeared in the case qualifying those named in the ninth request, it might have been error for the court to refuse to charge as therein requested. The other exceptions saved on the trial were abandoned in this court. 28 TESTAMENTARY CAPACITY. This opinion contains a very able and learned exposition of the law upon most of the points discussed. In declaring that the proponent must not only call, but examine, all the subscribing witnesses which are, at the time, available, the opinion takes an extreme view, as therein stated, and one not commonly enter- tained by the courts, either here or in England. We deem it proper to caution the profession, therefore, against adopting the rule of the English chancery, in regard to compelling the proponent to call all the witnesses and examine them, when in his power, which the court in Vermont have here decided to be the rule in that State. It is not the rule of law prevailing in many of the American States. We have attempted to show elsewhere that the rule is not recom- mended either by reason or propriety, and that in fact it has not the full support of authority. We shall now make a few suggestions more particularly appli- cable to the preceding cases. The Massachusetts court did at one time hold that there was no presumption in the case of wills, in favor of the sanity of the testator, as in other cases when sanity was brought in question, but that by the force of the statute of wills it was incumbent upon the executor, in all cases of the probate of wills, to adduce positive proof in favor of the sanity of the testator, whether any contrary proof were offered or not. Crowninshield v. Crowninshield, 2 Gray, 624. But that case, upon this point, is overruled by Baxters. Abbott, supra, p. 8. We have suffi- ciently indicated our own opinion upon the Massuchusetts cases, and others which maintain similar doctrines, in 1 Wills, § 5, p. 46 et seq. The rule, as thus stated, seems to us logically inconsistent, and that some of the propositions, when followed to their logical results, must subvert the main propositions, that the law presumes sanity, in the absence of all proof to the contrary, in the case of wills as well as other instruments, and that whoever asserts the want of testa- mentary capacity must prove it. It is certain, we think, that these latter propo- sitions are most incontestably established by all the best considered cases, both English and American, and we are unable to comprehend why, upon this basis, it is requisite that the executor, in propounding a will for probate, in opening his case, should not only examine the witnesses, in regard to the execu- tion of the instrument by the testator, but also as to his mental competency to execute the same. And we cannot very clearly see, if mental competency in the testator must be shown, in the first instance, in opening the case for the executor, why the testator's being of full age and not laboring under any disa- bility of alienage, coverture, &c., should not also be shown. The law must presume in favor of the testator, in regard to exemption from one disability as well as another, upon general principles ; and unless there is some ground upon which mental capacity may be regarded as more improbable than other requisites, the same course of proof would seem proper in either particular. But there can be no pretence of any sufficient ground upon which to reverse the ordinary pre- sumption in regard to mental capacity, in the case of wills, until it appears that the majority of testators are mentally incompetent to make their wills at the time of attempting it, which no one will claim. The question seems to us correctly stated in Jackson v. Van Dusen, 6 John- son's Reports, 144, by Van Ness, J. : — " In all cases where the act of a party is sought to be avoided on the ground of his mental imbecility, the proof of the fact lies upon him who alleges it, and PROCEDDEE AND BURDEN OF PROOF. 29 until the contrary appears, sanity is to be presumed. This rule of law is recog- nized by all the elementary writers on the subject ; and in all the adjudged cases which I have met with, both in law and equity, the court, in their reasoning and opinions, seem to take it for granted. Swinburn, 3. 46; Bac. Abr. let. F. tit. Idiots; 1 Peake's Ev. 373; Lovelass on Wills, 15, 142; 6 Cruise's Dig. 14; 3 Atkyns, 361 ; Tucker v. Phipps, 3 Br. Ch. Rep. 443; Attorney- General v. Parn- ther, 13 Vesey, Jr. 87 ; White v. Wilson. " This rule, undoubtedly, has its qualifications; one of which is, that after a general derangement has been shown, it is then incumbent on the other side to show that the party who did the act, was sane at the very time when it was per- formed. The defendant does not complain that the law was not so stated ; nor is there any just ground for such complaint, because, in fact, it was so laid down to the jury. But independently of authority, the law ought to be so. Almost all mankind are possessed of at least a sufBcient portion of reason to be able to manage the ordinary concerns of life. To say, therefore, that sanity is not to be presumed until the contrary is proved, is to say that insanity or fatuity is the natural state of the human mind." The opinion of Parker, C. J., in Pettes v. Bingham, 10 New Hampshire Reports, 515, is to the same purpose : — Parker, C. J. "It is admitted by the counsel for the appellants that the first issue is well found by the verdict. It is probably usual, in the probate courts, upon proof of a will, to inquire of the subscribing witnesses whether the testator was of a sound and disposing mind ; but it seems to be well settled that every man is presumed to be sane, until there is some evidence shown to rebut that presumption. 3 Stark. Ev. 1702 ; 6 Cruise Dig. 15 ; 13 Ves. 89, White v. Wilson ; 3 Brown's Ch. R. 443, Attorney-General v. Parnther. But if insanity be proved, and a lucid interval is alleged to have existed at the time of the execution of the will, then, it is said, the burden of proof attaches to the party alleging such lucid interval. 3 Brown, 443. The burden of proof was on the appellants to show that the testator was not sane, and the verdict finds substan- tially that nothing, appeared in support of the plea. Taken together, it must be understood as a finding of the jury that the testator was sane, on the evidence before them." The opinion in Turner v. Cheesman, 15 New Jersey Equity Reports, 243, contains a very just commentary upon the point : — Potts, P. J. " The general rules and principles adopted by the Ordinary in the case of Whitenack v. Stryker and Voorhees, 1 Green's Ch. R. 11, are of con- trolling authority in this court, as far as they are applicable to this case. They were adopted after solemn argument, and have not since been questioned, as far as I am advised, in this State. In that case the Ordinary said : — " ' 1. The first principle is, that the presumption of the law is in favor of capacity, and he who insists on the contrary has the burden of proof, except where insanity in the testator has been shown to exist at a time previous to the execu- tion of the will ; in that case the onus is shifted, and the party offering the will is bound to show that it was executed at a lucid interval. " ' 2. That the time of the execution of the will is the material period to which the court must look to ascertain the state of mind of the testator ; that although 30 TESTAMENTARY CAPACITY. it is competent evidence to show the testator's mind at any time previous or sub- sequent to the execution of the will, yet such proof is always liable to be over- come, if it be satisfactorily shown that the testator, at the time he executed the writing, had the possession of his faculties. " ' 3. That of all the witnesses, the testamentary witnesses, and their opinions, and the facts they state as occurring at the time, are to be particularly regarded by the court. They are placed around the testator for the very purpose of attesting, after his death, to the circumstances under which - so solemn an instru- ment is executed. " ' 4. That the opinions of witnesses, other than the testamentary witnesses, as to the capacity of the testator, are to be received as the slightest kind of evi- dence, except so far as these are based on facts and occurrences which are detailed before the court. Witnesses are to state the facts ; and it is the business of the court, from these facts, to pronounce the opinion, upon settled rules and guides, whether the testator is competent or not. " ' 6. That old age, failure of memory, and even drunkenness, do not, of them- selves, necessarily take away a testator's capacity. He may be ever so aged, very infirm in body and in habits of intemperance, and yet in the eye of the law possess that sound mind necessary to a disposition of his estate.' " Upon the question of the burden of proof we have given enough of the cases to enable our readers to comprehend the views of the American courts. But we have by no means exhausted the learning upon this question as presented in the American Reports. The English cases, and many American cases, seem to hold that, as the executor goes forward in the trial, and consequently assumes the burden of proof, and the competency of the testator to execute the instrument at the time it was done, is clearly involved in the issue, it is incumbent upon him to give positive evidence upon that point. But the plaintiff goes forward in the trial of an action upon promissory note, tried upon the general issue, but he is not required to give evidence of the consideration, although that is clearly involved in the issue, because the law presumes consideration in the case of promissory notes the same as it does sanity of the testator in the case of wills, and there can be no reason why one of these cases should be distinguished from the other as to the burden of proof. Barry v. Butlin, 1 Curteis, 637 ; Gerrish o. Nason, 22 Me. 438; Comstock v. Hadlyme, 8 Conn. 264, post; Delafield v. Parish, 25 N. Y. 9, post. But if the law presumes sanity and mental capacity and soundness, in the case of testators, as well as others, — and of this we think few will entertain doubts, or attempt to interpose any question, until incompetency is shown to exist in a much larger proportion of their number, approaching at least some- what towards a moiety, — then we cannot suppose any one will seriously contend for the necessity of proving, by positive evidence, in order to maintain any issue, what the law presumes in the absence of all evidence. We must then, upon this view of the question, which seems too simple and incontrovertible for argu- ment, seek for some other explanation of the practice, in trials upon the validity of wills, for the executor to examine the subscribing witnesses upon the point of the testator's mental capacity at the time of executing the instrument. He is not required to do this at that point of the trial, as to any other of his PEOCEDURB AND BURDEN OP PROOF. 31 ■witnesses. And the subscribing witnesses Lave always been allowed to express a naked opinion in regard to the testator's mental soundness, in the first instance, without stating any facts upon which the opinion is based, which no other witness, not an expert, is allowed to do. This, therefore, must be regarded as merely formal, since such an opinion is not evidence. At an early day (Swinb. 46, pt. 2, sec. 3, pi. 4), the rule for which we contend seems* to have been clearly settled. This writer here says, "Every person is presumed to be of perfect mind and memory, unless the contrary he proved,'''' . . . " because when the contrary appeareth not, the law presumeth it." And Baron Parke says, in Barry v. Butlin, supra, that the reason why a will may not be proved as an exhibit at the hearing in chancery, as a deed may, is that in the case of the execution of a will the other party must have an opportunity to cross-examine the witnesses as to sanity. Hence, as we have never been able to see any other ground upon which the practice of the executor examining the witnesses to a will, in the first instance, as to the sanity of the testator, or, rather, his mental capacity to comprehend the act, could be justified, we therefore conclude it must be referred to the right of the contestants to cross-examine these witnesses, in particular, at the time of their first introduction, as to the entire transaction of the execution of the will. And as these witnesses were selected by the testator, and the contestants could have no means of knowing, except through them, what passed at the time of the exe- cution of the will, it was proper for the executor to examine them sufficiently upon the entire transaction, to enable the contestants to go into the whole case of testamentary capacity by way of cross-examination, and to do this without making the subscribing witnesses their own, upon any question involved in the exe- cution of the will. Hence we have said (1 Wills, §6, p. 40, n. 16), that the proper inquiry by the executor on this point would seem to be, whether the testator appeared to comprehend what he was doing at the time of the execution of the will. We cannot suppose the executor, in the first instance, is bound to give any other evidence of the competency of the testator than the naked opinions of the subscribing witnesses, which is really no evidence at all, upon general prin- ciples, since unprofessional witnesses must speak of facts, and not of opinions unconnected with facts. It is, we believe, from not clearly understanding or re- membering why the executor is bound to produce the subscribing witnesses, and ask them their opinions of the testator's soundness of mind at the time of executing his will, that the courts have so largely fallen into the inconsistency of saying that he must, in the first instance, give some evidence of testamentary capacity, in order to maintain the issue, while at the same time affirming that the law presumes mental soundness in the absence of all proof, in the case of wills as well as other instruments, and that he who alleges the want of it must assume the burden of proving such defect. The executor is required to ask the opinions of the subscrib- ing witnesses upon the point of testamentary capacity, or apparent capacity, not for the purpose of proving it, since the law will surely not make itself so absurd as to require the party to adduce proof of any fact which it presumes in the absence of all proof; but so that the contestants of the will may have the oppor- tunity of cross-examination of these confidential witnesses of the testator, or what the law presumes to be his confidential witnesses, in the first instance, in order to become apprised of what passed at the execution of the will, and the law will not therefore compel the contestants to make the subscribing witnesses their own by 32 TESTAMENTARY CAPACITY. recalling them upon any point, involved in the entire issue, and thereby lose the ad- vantage of cross-examination. Unless this anomaly is explainable in this mode, it renders the entire theory of the testimony of the subscribing witnesses upon the tes- tamentary capacity of the testator a departure from the ordinary rules of evidence. Some will say, possibly, that this view will change the burden of proof so as to enable the contestants to' claim the right to go forward in the trial, and thus have the advantage of closing the proof and the argument, which has not generally been accorded to them. But there is no more reason why this result should follow, than in giving the open and close in an action on promissory note to the defendant, where he concedes the execution of the instrument and attempts to show payment, or want or failure of consideration, or any similar defence, under the general issue ; and no one has ever found any difficulty upon this point. The plaintiff must still have the open and close, even when his portion of the proof is waived. In all actions upon the validity of instruments tried upon the general issue, whereby the proof of due execution is thrown upon the plaintiff, he will be entitled to clo.se the case, even when formal proof of execution is waived. But if we regard the executor as having opened his case upon the issue of mental capacity to execute the will, by his production of the witnesses to its execution, and ask- ing their naked opinions of the testator's apparent testamentary capacity at the time, he could not afterwards be allowed to introduce other witnesses upon this very point, after the contestants had closed their evidence. There is no rule of practice better settled than that the plaintiff must introduce his whole evidence upon every point in the case upon which the law requires him to open at all. The plaintiff's rebutting evidence can only be given upon points first made in the defence. Some of the States have for convenience modified this rule ; but in England and most of the American States it is held with undeviating strictness. It is recognized in Harrison v. Rowan, 3 Washington C. C. 580, post ; Cordrey v. Cordrey, 1 Houston, 269, post. But as we do not find anywhere that the execu- tor is held bound to go forward and fortify the opinion of the subscribing wit- nesses by other testimony, when it is favorable, or disprove it when adverse, and thus complete his case upon the point, we must conclude it is not an opening of the case upon this point. So that whatever examination of the subscribing witnesses there is upon the question of testamentary capacity, at the time tbey are called by the plaintiff to prove the execution of the will, must be regarded rather as testimony on the part of the contestants, by way of cross-examination of the plaintiff's witnesses, than as testimony on the part of the plaintiff. This will be still more apparent if we consider the effect of one or more of the sub- scribing witnesses testifying against the competency of the testator. Would that render it necessary for the plaintiff to rebut such adverse proof before the de- fendant introduced further testimony upon that point ? Certainly not. On the contrary, the defendant must proceed and finish his evidence upon this point; and then the plaintiff gives his whole evidence upon the question of testamentary capacity. If the defendant declines giving further evidence, after the subscribing witnesses impeach the testator's capacity, the plaintiff has only to overcome that evidence to maintain the issue on his part, and the defendant then could give no more evidence in reply to the plaintiff's evidence. We have studied this point a great deal, and can find no other explanation which seems satisfactory, and we believe this must be so to every one, if we have made our views clear. EXECUTION OP WILLS BY THE DEAF, DUMB, AND BLIND. 33 II. Execution op Wills by Deaf and Dumb Persons, as also BY the Blind. Whatever disabilities this first class of persons formerly labored under in consequence of the difficulty of communicating with them, have been long since in a measure removed by the improvements in their education. The only difference between deaf and dumb persons and ordinary persons in the execution of wills now is, that the witnesses must comprehend the language of the testator, so as to be able clearly to understand his directionSj and how far he understood the transaction, so as to be able to testify understand- ingly upon the points for which they are called to attest the execution of the instrument. The law on this question is well presented in — 1. Weir V. Fitzgerald, 2 Bradford Surrogate Reports, 68. 1851. Bradford, Surrogate. By the Roman law, no person could make a valid will who lacked some of the principal senses, — such, for example, as were deaf and dumb, or blind. Blackstone lays tliis down of those born deaf, dumb, and blind, who, he says, " as tliey have always wanted the common inlets of understanding, are incapable of having animum testandi, and their testaments are therefore void." 2 Com. 497. The rule was, of necessity, qualified by the reason of it, which was a presumed want of capacity. Persons born deaf and dumb could not make wills, on the supposition of insufficient capacity, — Surdus, mutus, testamen- tum facere nan possunt: Dig. Lib. 28, tit. 1, §§ 6, 7 ; but sub- sequently it was allowed where the defects were not congenital, and there existed sufficient testamentary capacity : Cod. Lib. 6, tit. 22, § 10. A blind man might niake a nuncupative will, by declai-ing the same before seven witnesses ; but he could not make a testament in writing, unless it was read to him and acknowl- edged by him to be his will before the witnesses. Cod. Lib. 6, tit. 22, § 8 ; Inst. Lib. 2, tit. 12, §§ 3, 4 ; Dig. Lib. 37, tit. 3. Tins was first permitted by a decree of Justin, and continued 3 34 TESTAMENTARY CAPACITY. to be the rule of the civil law. Ccecus, autem, non potest facers testamentum, nisi per ohservationem, quam lex divi Justini, patris nostri introduxit. It has not, however, prevailed in England, nor been incorporated in any of the statutes relative to wills. Tlie object of requiring the will to be read to the blind man was doubtless to prevent fraud, the substitution of one instrument for another, and to secure evidence, beyond the mere factum of the will, of the knowledge of the contents of the identical will by the testator. It has not been made a formal ceremonial by our statute, in any case, that the will should be read to the testator in the presence of the witnesses, though it is eminently proper so to do where the testator is blind or cannot read. The statute is satisfied by the subscription of the testator, at the end of the will, in the presence of two witnesses, or the acknowledgment of such subscrip- tion ; the testamentary declaration of the testator ; and the signa- ture by the witnesses of their names at the end of the will, at the request of the testator. These forms are necessary, but even when satisfied by the evidence, do not always entitle the will to be ad- mitted to proof. Something more is necessary to establish the validity of the will, in cases where, from the infirmities of the tes- tator, his impaired capacity, or the circumstances attending the transaction, the usual inference cannot be drawn from the mere formal execution. Additional evidence is therefore required that the testator's mind accompanied the will, that he knew what he' was executing, and was cognizant of the provisions of the will. I think that is all that ought to be required in the proof of the will of a blind person. But it is not essential it should be established by the subscribing witnesses. It may be supplied aliunde. As sub- scribing witnesses, all that it is necessary they should prove is, that ceremony which they witnessed, and which the statute requires. This satisfies the statute ; and the additional evidence to which I have referred as proper in certain cases may be afforded by other persons. The point presented is not entirely new. In Moore v, Paine, 2 Cas. temp. Lee, 595, the deceased was blind, and only one of the three subscribing witnesses proved the instructions, the reading of the will to the testatrix, and her approbation of it. The will was sustained on the ground that only one witness was necessary. In Longchamp v. Pish, 5 Bos. & Pull. 415, before the Common Pleas, the precise question came up. That was a will of lands, which by statute was required to be executed in the presence EXECUTION OP WILLS BY THE DEAF, DUMB, AND BLIND. 35 of and subscribed by three witnesses. The will was not read over ill the presence of the three attesting witnesses. The testator was blind, had dictated the will to one Davis, who read it over to him, took it away, got it copied, brought it back, fairly copied ; two months after, the testator made an alteration in it ; and then it was executed. It was contended that the will ought to have been read in the presence of the testator by one, at least, of the attesting witnesses. The court, however, ruled in favor of the will, Ohamhr^, J., remarking as follows : " This question must be decided by the provisions of the Statute of Frauds. Now, it does not appear that the legislature, when they passed that statute, had in their con- templation execution of wills by blind men." " There cannot be a doubt, if this were an instrument by deed or any other written engagement, that the mere signature of the party, though blind, would be deemed a sufficient execution, and the only thing to be proved would be, that the blind man was not imposed upon. In this case, that fact is completely established, by an unimpeached witness, who took instructions from the mouth of the blind man himself, and wrote them down." The same point has been decided in regard to the will of a blind person, made under the provisions of the statute 1 Vict. c. 26, which so nearly conform to those of our own law. In Pincham v. Edwards, 3 Curteis, 63, the testatrix was blind. The will propounded was prepared by a solicitor from a previous will, the alterations having been made in pencil, and the instructions not being produced. The solicitor read over the forme'r will to the testatrix, took her instructions, and drafted the will ; but when the will was executed it was not read over to the testatrix in the presence of either of the subscribing witnesses. Sir Herhert Jenner Fust admitted the will to proof, saying, " Certainly, when the court is asked to grant probate of a will of a party totally or almost blind, it must be shown to the satisfaction of the court that tlie contents of the will are conformable to the instructions and intentions of the deceased. Undoubtedly, in this case, the will is not proved to have been read over to the deceased. A reference has been made to Mr. Williams's treatise ; but the case of Barton v. Robins, 3 Phill. 455, note, shows that it is not necessary that the actual will should be read over, if there is proof that the party deceased knew the contents of it." This decision was affirmed, on appeal, by the Judicial Committee of the Privy Council. 36 TESTAMENTARY CAPACITY. The former state of the law in regard to the competency of deaf and dumb persons to execute contracts or wills, is well presented in Brower v. Fisher, 4 Johns. Ch. 441, in the opinion of Kent, Chancellor: — The sole question in this case is, whether the bill shall be dismissed with or without costs. The plaintiflF claims no relief after the inquisition which has been returned. Upon the finding of the jury under the commission, in nature of a writ (Ze lunatico inquirendo, I refused to appoint a committee, and adjudged that the defendant was not to be deemed an idiot from the mere circumstance of being born deaf and dumb. This is a clear settled rule, and numerous instances have occurred in which such afflicted persons have demonstrably shown that they were intelligent and capable of intellectual and moral cultivation. In Elliot's Case. (Carter's Rep. 53), Bridgman, C. J., and the other judges of the C. B. admitted a woman born deaf and dumb to levy a fine, after due exami- nation of her. He mentioned also the case of one Hill, who was born deaf and dumb, and who was examined by Judge Warhmion, and found intelligent, and admitted to levy a fine. So Lord Hardwicke, in Dickenson v. Blisset, Dick. Rep. 268, admitted a person born deaf and dumb, uptjn being examined by him after she came of age, to take possession of her real estate. Notwithstanding these authorities, the bill does not appear to have been filed vexatiously, but rather to obtain, for greater caution, the opinion of the court on a point which had been left quite doubtful in many of the books, and which had never received any discussion here. It is stated in Bracton (De Exceptioni- bus. Lib. 5, c. 20) to be a good exception taken by the tenant : Si persona pelentis fuerit surdus et mutus naturaliter, hoc est, naiivitate; for it is said, acquirere nan potest, et per officium judicis invenienda sunt ei necessaria quoad vixerit ; and he takes it for granted that such a person is placed under a, curator, and that he must sue in assise, sicut minor. So it is said, in Brooke (Eschete, pi. 4), that videtur qui surdus et mutus ne poet faire alienation; and the distinc- tion taken was (Dy. 66 a, note 13), that, if deaf and dumb irom his birth, he was non compos, but not if so by casualty. By the civil law, it was also gener- ally understood and laid down that a person born deaf and dumb was incapable of making a will, and he was deemed a fit subject for a curator or guardian. Inst. 1, 23, 24, and Ferniere, h. t. and Inst. 2, 12, 3, and Ferrier and Vinnius, h. t. Perhaps, after all, the presumption in the first instance is, that every such person is incompetent. It is a reasonable presumption, in order to insure pro- tection and prevent fraud, and is founded on the notorious fact that the want of hearing and speech exceedingly cramps the powers and limits the range of the mind. The failure of the organs requisite for general intercourse and commun- ion with mankind oppresses the understanding; offigat humo divinw particulam aurce. A special examination to repel the inference of mental imbecility seems always to have been required ; and this presumption was all that was intended by the civil law, according to the construction of the ecclesiastical courts ; for a person born deaf and dumb was allowed to make a will, if it appeared, upon sufficient proof, that he had the requisite understanding and desire. Swinb. pt. 2, § 10. I am satisfied that the plaintiff is justly to be exempted from the charge of a EXECUTION OP WILLS BY THE DEAF, DUMB, AND BLIND. 37 groundless and vexatious inquiry, and the course is not to punish the prosecutor of a charge of lunacy with costs, if the prosecution has been conducted in good faith and upon probable grounds. 1 CoUinson on Lunacy, 461, 464. I shall, therefore, dismiss the bill without costs. Decree accordingly. The following case illustrates the effect of blindness as an impediment to tlie execution of wills, as well as some others which come under consideration in this volume ; and the whole case is inserted here, and will be referred to under the other heads which it illustrates. 2. Wampler v. Wampler, 9 Maryland Reports, 540. 1856. The testimony in the case showed that the will was drawn up by one of the executors and beneficiaries under it, from tlie express and specific dictation of the testator, after he had consulted with his relatives about him, all of whom were also beneficiaries under the will. He gave what he called his " mill property" to one of his nephews, who had lived with him for many years, and rendered him much valuable aid. He insisted that his relatives should estimate the value of the " mill property " and the value of the lega- tee's services, and made the provisions of the bequest in conformity with such estimate. He gave nothing to some of his nephews and nieces, residing at a distance, assigning as the reason, that they had never taken any interest iu him, and cared nothing for him, unless to receive some of his estate. The testator was, at the time of the execution of his will, entirely blind, and so continued till the time of his death, a few months after. The will was not read to the testator in the presence of the witnesses at the time of its execution, but was shown, by other testimony, to have been drawn up in conformity with liis in- structions, and read to him at the time it was so drawn up. The testator signed the instrument, and declared it to be his will, in the presence of the witnesses, at the time of its attestation by them. The testator had been a man of capacity, and greatly trusted by his friends and the public. Tlie witnesses, who were well acquainted with him, testified that they had considerable conversation with him just before the execution of the will, and " found him as capable of executing a will as he ever was in his life." 38 TESTAMENTARY CAPACITY. Where the testator is blind, it is not important that his will should be read to him in the hearing of the witnesses. It is sufficient if he acknowledge the paper as his will, and there be evidence from any source that he knew its contents. It is not necessary to avoid a will, on the ground of undue influence, to prove it to have been fraudulently obtained. It will be sufficient if it were not the voluntary act of the testator. The fact that the testator consulted others in regard to the value and distribu- tion of his estate, and adopted their advice, is not necessarily evidence of undue influence, but may often tend to show both capacity and freedom. The opinion of the court was delivered by — Tuck, J. We are of opinion that the evidence of William A. Wampler was properly received by the court below, and must be regarded by us in the decision of this appeal. Deakins v. HoUis, 7 G. & J. 311. The record presents the case of a blind man's will, executed in due form of law, and attested by three subscribing witnesses. The will was not read to the testator by or in the presence of these witnesses ; but, as proved by the above-named witness, it had been dictated by the testator, prepared accordingly, and afterwards read to him, on the day of its execution, before the arrival of the attest- ing witnesses. The case thus stated relieves us from the necessity of pronouncing upon the validity of a will executed by a blind man, it not appearing that the will had ever been read to him. Wliatever the doctrine was, as laid down by the earlier writers, we take it to be well settled at this time, that a last will and testa- ment, such as the one under consideration, is entitled to probate. And, indeed, we understood the counsel for the appellants as con- ceding that, on this point, the authorities are against him. The subject is so fully discussed in the cases cited on the part of the appellees, that we may content ourselves with referring to them, and especially to Longchamp v. Fish, 5 Bos. & Pul. N. R. 415, which much like the present. See Godolph. pt. 1, c. 11; Richard- son's Law of Testaments & Wills, 45 ; Lovelass on Wills, 264. (25 Law Lib.) It is contended, however, that the testimony of William A. Wampler shows that this will was prepared and executed under circumstances which, in connection with the sickness and infirmity of the testator, raise a proper ground for rejecting the instrument, as the act of a party performed while under the undue and improper EXECUTION OF WILLS BY THE DEAF, DUMB, AND BLIND. 39 influence of those around him at the time. Fraud is not charged in, the argument, but, as was held in Davis v. Calvert, 5 G. & J. 269, this is not necessary to avoid a will, if improper influence can be established. In the case referred to, we are told what kind and degree of influence is necessary. Now, testing the present will by that rule, we do not perceive that there is sufficient reason shown for rejecting it. It is worthy of remark that the witness is unimpeached and uncontradicted as to a single fact to which he speaks, and the provisions of the will are not such as to raise any doubt that all was done fairly and in accordance with the intention of the testator. He appears to have acted as a person of free will, in directing what he wished done. His reasons for excluding the appellants, and some others of |iis relatives, as given by himself at the time, are not unreasonable; and if the fact of their not having visited or cared for him had been otherwise than as stated, we suppose some evidence on that point might have been adduced. Tlie mode of estimating his property, so as to determine the amount to be charged thereon, was suggested by him, and persisted in, although the persons present expressed a desire that he should make the valuation and name the amount himself. Tiie executors were named by him, to the exclusion of his brother, who he was told might desire the ofiSce, because, as he said, it would not suit him. Tiie facts concerning the surveyor's instruments show that his mind was in doubt as to which of two nephews should have them ; but, when a reason was suggested for bequeathing them as he did, he so directed. It is no uncommon circumstance for a person to hesitate how he will dispose of his property, or of certain portions of it, and to advise with others as to its value, with a view to making his will ; and certainly there can be no objection to his gratifying what he may suppose to be the wishes and feelings of the objects of his bounty. He is represented to have been, before his sickness, a man of great force of mind and capacity for business, and to have been much employed in drawing deeds and wills for his neighbors. There was no evidence to show how far (if at all) his mind had been affected by disease ; but, on the contrary, the subscribing witnesses stated that they had known him for many years, and that, at the factum of the will, he was as capable as they had ever known him to be. Tlie case does not show that the imputed influence and im- 40 TESTAMENTARY CAPACITT. portunity, if any e^^isted, was of a degree which the testator was too weak to resist, depriving hira of his free agency, and rendering his will bther than his free and unconstrained act. . 5 G. & J. 302. III. The Form op giving Testimony by Experts, and the Purpose and Effect of such Testimony. We have selected the following opinions to illustrate the subject stated above, mainly on account of the admitted weight of the opinions of the judges in the first two cases, and for the thorough discussion of the general question of mental unsoundness in the third case. It may seem rather surprising that there sliould have been much discussioil in the courts upon the form of questions to be put to experts, and the proper mode of examining them, generally. But it must be accounted for by the fact that this kind of evidence is of comparatively recent origin, and that it does not yet seem very clearly settled what precise purpose is to be answered by, or weight given to, such testimony. We shall discuss this point more hereafter. We have not deemed it any objection to adopting the following opinions that they are not upon the precise point of testamentary capacity, since they are equally well suited to illus- trate the topics now under review. 1. Oommonwealih v. Rogers, 7 Metcalf's Reports, 500, 504. 1844. The experts may be asked : — " If the symptoms and indications testified to by other witnesses are proved, and if the jury are satisfied of the truth of them, whether in their opinion the party was insane, and what was the nature and character of the insanity ; what state of mind did they indicate, and what would you expect would be the conduct of such a person, in any supposed circumstances ? "It [the testimony of experts] is designed to aid the judgment of the jury in regard to the influence and effect of certain facts, which lie out of the obser- vation and experience of persons in general." Effect of the testimony of experts. " And such opinions, when they come from persons of great experience, and in whose correctness and sobriety of judg- ment just confidence can be had, are of great weight, and deserve tTie respectful consideration of a jury. But the opinion of a medical man of small expe- rience, or of one who has crude and visionary notions, or who has some POEM AND EFFECT OF EXPERT TESTIMONY. 41 favorite theory to support, is entitled to very little consideration. The value of such testimony will depend mainly upon the experience, fidelity, and impartiality of the witness who gives it." Opinion by Shaw, C. J. The opinions of professional men on a question of this description are competent evidence, and in many cases are entitled to great consideration and respect. The rule of law, on which this proof of the opinion of witnesses, who know notliing of the actual facts of the case, is founded, is not peculiar to medical testimony, but is a general rule, applicable to all cases where the question is one depending on skill and science in any particular department. In general, it is the opinion of the jury which is to govern ; and this is to be formed upon the proof of facts laid before them. But some questions lie beyond the scope of the observation and experience of men in general, but are quite within the observation and experience of those whose peculiar pursuits and profession have brought that class of facts frequently and habitually under their consideration. Shipmasters and seamen have peculiar means of acquiring knowledge and experience in whatever relates to seamanship and nautical skill. When, there- fore, a question arises in a court of justice upon that subject, and certain facts are proved by other witnesses, a sliipmaster may be asked his opinion as to the character of such facts. The same is true in regard to any question of science ; because persons con- versant with such science have peculiar means, from a larger and more exact observation, and long experience in such department of science, of drawing correct inferences from certain facts, either observed by tliemselves or testified to by other witnesses. A familiar instance of the application of this principle occurs very often in cases of homicide, when, upon certain facts being testified to by other witnesses, medical persons are asked, whether in their opinion a particular wound described would be an adequate cause, or whether such wound was, in their opinion, the actual cause, of the death in the particular case. Sucii question is commonly asked without objection ; and the judicial proof of the fact of killing often depends wholly or mainly upon such testing of opinion. It is upon this ground that the opinions of witnesses, who have long been conversant with insanity in its various forms, and who have had the care and superintendence of insane persons, are received as competent evidence, even though tliey have not had opportunity to examine the particular patient, and observe the 42 TESTAMENTARY CAPACITY. symptoms and indications of disease at the time of its supposed existence. It is designed to aid the judgment of the jury, in regard to the influence and effect of certain facts, which lie out of the observation and experience of persons in general. And such opinions, when they come from persons of great experience, and in whose correctness and sobriety of judgment just confidence can be had, are of great weight, and deserve the respectful considera- tion of a jury. But tlie opinion of a medical man of small experience, or of one who has crude and visionary notions, or who has some favorite theory to support, is entitled to very little con- sideration. The value of such testimony will depend mainly upon the experience, fidelity, and impartiality of the witness who gives it. One caution, in regard to this point, it is proper to give. Even where the medical or other professional witnesses have attended the whole trial, and heard the testimony of the other witnesses, as to the facts and circumstances of the case, they are not to judge of the credit of the witnesses, or of the truth of the facts testified by others. It is for the jury to decide whether such facts are satisfactorily proved. And the proper question to be put to the professional witnesses is this : If the symptoms and indications testified to by other witnesses are proved, and if the jury are satisfied of the truth of them, whether, in their opinion, the party was insane, and what was the nature and cliaracter of that insanity ; what state of mind did they indicate ; and what they would expect would be the conduct of such a person in any supposed circum- stances ? [See 1 M. & Rob. 75.] 2. United States y. McGhte, United States Circuit Court, 1 Curtis, 1, 9. 1851. Manner of giving testimony hy experts. "They are not allowed to give their opinions upon the case," but only upon such facts as are assumed by counsel, or testified to by the witnesses. " It is not the province of an expert to draw inferences of fact from the evidence, but simply to declare his opinion upon a known or hypothetical state of facts." Object of the testimony. To aid the jury in making correct inferences from the facts proved, and to enable them to reach a wise and just conclusion. These opinions of the expert are entitled to a fair and just consideration by the jury, but they are not absolutely binding, when opposed to their own con- victions of truth. FORM AND EFFECT OP EXPERT TESTIMONY. 43 Opinion by Mr. Justice Curtis. It is asserted by the prisoner that when he struck the blow he was suffering under a disease known as delirium tremens. He has introduced evidence tending to proje his intemperate drinking of ardent spirits during several days before the time in question, and also certain effects of this intemperance. Physicians of great eminence, and particularly ex- perienced in the observation of this disease, have been examined on both sides. They were not, as you observed, allowed to give their opinions upon the case ; because the case, in point of fact, on which any one might give his opinion, might not be the case which you, upon the evidence, would find ; and there would be no certain means of knowing whether it was so or not. It is not the province of an expert to draw inferences of fact from the evidence, but sim- ply to declare his opinion upon a known or hypothetical state of facts ; and, therefore, the counsel on each side have put to the physicians such states of fact as they deem warranted by the evi- dence, and have taken their opinions thereon. If you consider that any of these states of fact put to the pliysicians are proved, then the opinions thereon are admissible evidence, to be weighed by you. Otherwise, their opinions are not applicable to this case. And here I may remark, gentlemen, that although, in general, witnesses are held to state only facts, and are not allowed to give their opinions in a court of law, yet this rule does not exclude the opinions of those whose professions and studies, or occupations, are supposed to have rendered them peculiarly skilful concerning questions which arise in trials, and which belong to some particular calling or pro- fession. We take the opinions of physicians in tliis case for the same reason we resort to them in our own cases out of court, be- cause they are believed to be better able to form a correct opinion, upon a subject within the scope of their studies and practice, than men in general, and, therefore, better than those who compose your panel. But these opinions, though proper for your respectful con- sideration, and entitled to have, in your hands, all that weight which reasonably and justly belong to them, are nevertheless not binding on you, against your own judgment, but should be weiglied, and, especially where they differ, compared by you, and such effect allowed to them as you think right; not forgetting that on you alone rests the responsibility of a correct verdict. Besides these opinions, upon cases assumed by the counsel, which you may find to correspond more or less nearly with the actual case on trial, the 44 TESTAMENTARY CAPACITY. physicians have also described to you the symptoms of the disease of delirium tremens. They all agree that it is a disease of a very distinct and strongly marked character, and as little liable to be mistaken as any known in medicine. All the physicians have described it substantially in the same way. 3. Jleald v. 27iing, 45 Maine Re-ports, 392. 1858. Ground of opinion of experts. An expert cannot be allowed to give his opinion in regard to sanity, when it is based partly upon representations made to him by persons not under oath. His opinion, to be received as testimony in a court of justice, must be based, either upon his own observation of the person, or what is testified in court by other witnesses ; and, in either case, the facts upon which his opinion rests must be distinctly stated. He is also allowed to state the grounds of his opinion, or the reasons which induce him to adopt a particular conclusion. The weight of the opinions of experts depends upon the character, learning, and experience of the witnesses, and its eifect in satis- fying the mind of the. jury. Opinion by Rice, J. Replevin for a quantity of personal prop- erty. Writ dated March 9, 1854. To establish his title to the property described in his writ, the plaintiff introduced a bill of sale, the execution of which was in the handwriting of the defend- ant, and dated March 14, 1853. The defence principally relied upon was that the bill of sale was executed by the defendant at a time when, by reason of severe illness, he was insane. To establish this point in the defence, he called Dr. Russell, a physician, who testified that he was called to consult with the attending physician, March 9, 1853, when he found the defendant sick with inflammatory fever, and deranged by reason of it, and dangerous, or in a dangerous condition. It was proved that the attending physician referred to was, at the time of the trial, with- out the limits of the State, and gone to parts unknown. The counsel for the defendant then asked Dr. Russell to state what was stated to him during that consultation by the attending physician, and the wife and family of the defendant, concerning the symptoms of his disease, which was objected to by the plaintifif and excluded by the court. The defendant then asked the witness to give his opinion, pro- fessionally, derived from what symptoms he then discovered, in connection with what he then learned of his symptoms from his FORM AND EFFECT OP EXPERT TESTIMONY. 45 nurse or wife, and attending physician, as to the continuance or duration of his insanity, which was objected to by tlie plaintiff, and excluded by the court ; but the court permitted the witness to give his opinion derived from the symptoms which he then saw. To these rulings the defendant filed exceptions, and now con- tends they were erroneous. As a general rule, witnesses are permitted to testify only to facts within their own personal knowledge. Hearsay testimony is ex- cluded. Nor are they permitted to give their opinions upon facts stated or proved before a jury. It is the legitimate province of the jury to make deductions from facts proved. But to these general propositions there are exceptions. Thus when, -from the nature of the case, direct testimony cannot be obtained from living witnesses, hearsay evidence may be resorted to, as in the case of dying declarations, in questions of pedigree, questions concerning public rights, and the like. So, too, as to the representations made by a sick person of the nature, symptoms, and effect of the malady under which he is laboring at tiie time. I Greenl. Bv. § 102. So, also, in questions of insanity, tlie acts and declarations of the party, the condition of whose mind is the subject of investigation, may be given in evidence. Wright v. Tat- ham, 7 Adol. & El. 313. But the declarations sought to be proved in this case do not fall within any of the exceptions referred to above, nor any other known to the law. They were the declarations of parties competent to be witnesses, unaccompanied by any acts pertinent to the issue then before the court. These declarations, if they related to facts witliin the knowledge of the persons making them, could only be proved by those persons themselves. As proposed to be proved, they were clearly within the description of hearsay evidence, and were properly excluded. Another exception to the rule requiring witnesses to state only facts within their personal knowledge is found in the case of ex- perts, who are not only allowed to state facts, like ordinary wit- nesses, but are also permitted to give their opinion, based upon facts within their own knowledge, or proved by other witnesses upon the stand, or upon hypothetical statements. 1 G-reenl. Ev. § 440. An expert is a skilful or experienced person ; a person having skill, experience, or peculiar knowledge on certain subjects or in 46 TESTAMENTARY CAPACITY. certain professions ; a scientific witness. Burrill's Law Dic- tionary. It is contended that the judge erred in refusing to permit the witness Kussell to give his opinion, based upon what he learned from the nurse and wife of the defendant and of the attending physician, taken in connection witli his personal examination. It is asserted that the information obtained from those sources became a part of the personal examination of the witness, and, as sucli, formed a proper basis for a professional opinion, wiiich would be competent and legitimate evidence in the case ; and, further, that the professional skill which would authorize the witness to testify to his opinions concerning the malady of a patient whom he has examined, authorizes him also to judge of the proper sources, in connection with his personal examination, from which to derive those opinions. Tiie declarations of the nurse, wife, and attending physician, are all clearly inadmissible, and were rightly excluded as hearsay. What those declarations were we do not know. They might have been of facts which the declarants had observed personally, or they might have been the idle gossip of ignorant and garrulous women. It is because such hearsay cannot be subject to the ordi- nary tests of truth in courts of justice, that it is excluded, as too uncertain and unreliable to constitute a basis for judicial action. But in this case, while it is admitted that the declarations above referred- to were properly excluded, it is strenuously contended that an opinion based wholly upon them (for the witness was permitted to give his opinion based upon his own examination and' observa- tion) sliould go to the jury as competent gvidence, upon which they would be authorized to act, on the ground that the witness, being a person of skill, is authorized to determine the proper sources, in connection with his personal examination, from which to derive those opinions. The proposition contains two fundamental errors. First, it makes the witness decide the question of the competency of evidence, thus putting him in the place of the court. Next, while it excludes the declarations as incompetent testimony to go to the jury, it receives, as competent evidence, an opinion, based upon that incompetent testimony, thus attempting to elevate the stream above the foun- tain, to make a corrupt tree bring forth good fruit. The declara- tions of the nurse and wife may have been only mere inferences on FORM AND EFFECT OF EXPERT TESTIMONY. 47 their part, and on those inferences the doctor is desired to draw an inference, and this last inference, being called the opinion of an expert, is made to assume the character of competent and substan- tial evidence. I have not been able to find any authority to sustain such propositions. The opinion of medical men is evidence as to the state of a patient whom they have seen. Even in cases where they have not them- selves seen tlie patient, but have heard the symptoms and particu- lars of his condition detailed by other witnesses at the trial, their opinion on the nature of such symptoms has. been properly ad- mitted. Thus, on a question of sanity, medical men have been permitted to form their judgment upon the representation which •witnesses at the trial have given of the conduct, manner, and gen- eral appearance exhibited by the patient. 1 Phil. Bv. 290. A physician who has not seen the patient, may, after hearing the evidence of others, be called upon to state, on his oath, the general effect of the disease described by them, and its probable conse- quence in the particular case. Peake's Ev. 190 ; 2 Russ. on Or. 623 ; Wright's Case, 1 Russ. & Ry. Cr. Ca. 456. In the case of Hathoru v. King, 8 Mass. 371, it was decided that a physician may be inquired of whether, from the circumstances of the patient, and the symptoms they observed, they are capable of forming an opinion of the soundness of her mind, and whether from thence they concluded her mind was sound or unsound ; and, in either case, they must state the circumstances or symptoms from which they draw their conclusions. Tlie question in this case was wliether the physicians, who were present and examined the patient, should be permitted to give their opinions ; or whether subscribing witnesses to the will (it being on a question of the validity of a will) only, should express opinions as to the sanity or insanity of tlie testatrix. In Dickinson v. Barber, 9 Mass. 225, a question arising on the exclusion of certain depositions, the court say : " The deponents state no facts on which they ground their opinion. Tliis is to be required of physicians as well as others. Juries are to judge of facts ; and, although the opinion of professional gentlemen, on facts submitted to them, have justly great weight attached to them, yet they are not to be received as evidence, unless predicated upon fcicts testified to, either hy them or hy others." The depositions were excluded. 48 TESTAMENTARY CAPACITY. In Keith & ux. v. Lothrop, 10 Cash. 453, Metoalf, J., says: " Tlie witness Smith, wlio was called as an expert, was rightly allowed to give the reasons for the opinion that he expressed." This point was adjudged in Com. v. Webster, 5 Cush. 301. And in Collier v. Simpson, 5 Car. & P. 73, Tindal, C. J., ruled that counsel might ask a witness, who was called to testify as an expert, " his judgment and the grounds of it." The value of an opinion may be much increased or diminished, in the estimate of the jury, by the reasons given for it. Tliis is undoubtedly sound law. As a witness cannot be per- mitted to give his opinion as an expert, until it appears by a pre- liminary examination that he is a person of skill in the particular ^department or subject-matter in which his opinion is desired ; so, too, it must appear that he has reliable information, or knowledge of the facts involved, and upon which his opinion is to be founded, before he can testify as an expert. As remarked by Gaston, J., in Clary v. Clary, 2 Iredell, 78, " unquestionably, before a witness can be received to testify as to the fact of capacity (in a case involving mental soundness), it must appear that he had an adeqtiate oppor- tunity of observing and judging of capacity." We permit experts to testify as to the genuineness of handwrit. ing by comparison, but, before an opinion can be given, it must be admitted or proved that the specimen with which the comparison is made is genuine. Until the genuineness of the standard specimen is established, no comparison can be made, no opinion expressed. The very foundation for the theory of expert testimony is that of his superior knowledge in relation to the subject-matter of wliich he is permitted to give an opinion, by which he, in a degree, assumes the functions of the jury. This kind of evidence, though, at times, unquestionably of great value, is frequently open to observation. While the opinion of the experienced, skilful, and scientific witness, who has a competent knowledge of the facts involved in tlie case on which he speaks, affords essential aid to courts and juries, that of unskilful pretend- ers, quacks, and mountebanks, who, at times, assume the character of experts, not unfrequently serves to becloud and lead to erroneous conclusions. Tiie rules under which this class of testimony is re- ceived should not, in my opinion, be relaxed. Such, I believe, would be the judgment of every intelligent person who has had any con- siderable experience in courts of justice. POEM AND EFFECT OF EXPERT TESTIMONY. 49 If it should be said that it cannot be known how much the opin- ion of the witness might have been based upon what he learned from the nurse or wife of tlie defendant, the answer would still be the same ; the declarations of those persons, thus made, could not properly form an element in the basis of facts, upon which the wit- ness could predicate a legal opinion, to be given as evidence before a jury. The ruling of the judge being in my judgment correct, the ex- ceptions should be overruled. We should not feel justified in attempting to add much, upon the general value and effect of professional testimony, to* what we have already said, so much in detail, in the first part of our work on wills. But the form of giving such tes- timony is governed essentially by the purpose and desired effect of the testimony. And this, it seems now pretty well agreed, is to educate the jury, or the court and jury, in the laws of mental disease and decay. This is a subject dependent, of course, for its thorough comprehension, upon both study and experience. It is like the knowledge of the law upon any other subject, and may be well illus- trated by the mode in which we come at the laws of general jurisprudence, as applicable to the case in hand, before a jury. If it is a justice jury, where the magistrate professes no knowledge of law, and could give no aid to the jury, we address ourselves to the jury, upon their own common sense and business expe- rience ; and we consequently read to them such portions of reports of cases or elementary treatises as we deem to be within their comprehension, and calcu- lated to fortify our own claims and contentions in the case. And we should be compelled to pursue the same course in proving the causes of mental disease and decay, before probate courts, in localities where experts in regard to mental ca- pacity could not be obtained. This would be a very imperfect mode of reaching the laws affecting mental capacity, or mental disease, no doubt ; but it would, as in the case of a justice jury, afford some aid, and be better than nothing. But in a court presided over by an experienced and learned judge, we take the law of the case from his mouth ; and if dissatisfied with his rulings, we carry the question to the final court of appeal for revision. And we do the same in regard to the laws of the medical profession, except that, there being no court of appeal to settle conflicts of opinion, we are driven to the necessity of putting in all the evidence in favor of our own contentions which is obtainable, and then take the opinion of the jury, as the final arbiters, the same as in regard to ques- tions of municipal law before a justice jury. But the purpose and object of the testimony of the experts is to instruct the jury in the knowledge of the laws of that particular department of the profession. The questions must therefore be framed with the view of eliciting such facts as are requisite to the attainment of this knowledge. Some of the earlier English authorities upon this point seem to suppose you may properly ask medical experts to give the general laws of their profession concerning mental capacity or mental disease. In McNaghten's Case, 10 CI. & Fin. 210, Lord Brougham said, " You shall ask them, upon their experience, what is an indication of insanity; " and Lord Campbell said, " The 50 TESTAMENTARY CAPACITY. witness may give general scientific evidence on the causes and symptoms of insanity." Any one, having" had much experience in trials of this kind, will readily assent to the proposition that much of the testimony of experts is given in this form of general discussion and exposition upon the laws of insanity and mental disease. And the dictum, so often repeated in the books, that the expert is not to express any opinion upon the particular case before the jury, might naturally lead to the conclusion that the testimony should have a sole regard to other cases within the knowledge of the witness. But we believe that any such opinion is founded in mistake. It is the very case upon trial, and that only, in regard to which the expert can, in strictness, give testimony. The opinion or dictum, so often re- peated in the trial of cases, that the expert is not to express an opinion advis- ing the jury upon the general question upon which Aeir verdict is to turn, is, no doubt, sound, but somewhat liable to be misunderstood. The expert is not to be inquired of whether the testator, at the time he executed the will, was com- petent to do so, even when he has heard all the evidence. For there will com- monly be more or less conflict in regard to the testimony of the different witnesses as to the testator's condition at the time. And the general question, supposed, will compel the experts to fix upon some one state of facts, as the most probable, under all circumstances, in order to answer the question in that gen- eral form. And although the experts might, perhaps, even in regard to the weight of evidence, judge more wisely than the jury, they have no function or power to do so. That office pertains exclusively to the jury. The experts are to aid the jury, by their learning and experience in regard to such matters, in cor- rectly understanding the effect of particular facts upon the mental capacity of the testator. And this the experts may do by giving the jury their opinion upon this effect. And it is not of similar cases that the experts are to advise the jury, but in regard to the same case on trial, and that only.- The expert may, if he choose, fortify his opinion by referring to other similar cases in his experience, or even to opinions found in books ; but this will pot be evidence, but rather argument in support of the opinion of the expert. He will scarcely be called to do this upon the direct examination, unless where his opinion conflicts T^ith that which goes before it. But the expert may naturally be called, upon cross- examination, to state the grounds of his opinion somewhat in detail. And it is commonly by cross-examination, more than any other way, that the fairness and value of the opinions of experts will have to be tested. The expert should be questioned upon an assumed or testified state of facts, with reference to the particular case on trial, and as to the natural, or the com- mon and ordinary, consequence of the existence of the facts upon which the question is based. In short, it is proper to inquire the opinion of the expert upon all the facts claimed to exist upon both sides. It sometimes happens that the experts will regard the theory of both sides as leading to the same result, either of testamentary capacity or the want of it. But almost uniformly the experts, upon both sides, agree that the theory of both sides will lead to the result claimed by the party setting up the theory. There is no impropriety, we apprehend, in inquiring of the expert how far, according to his knowledge and experience, the facts of any particular theory are consistent with each other, and whether they could all coexist in the same FORM AND EPPECO? OP EXPERT TESTIMONY. 51 case, and if not, why not? In short, there is no opinion, calculated to elucidate the theory of either party, in regard to the particular case, which may not be asked of the experts with entire propriety. But, so far as the examination-in- chief is concerned, there is no propriety in asking the opinion of the experts as to any fact, or state of facts, not claimed to exist, upon one side or the other, in the particular case. The pretence that the expert is not to express any opinion bearing upon the solution of the particular case, lest the answer might trench upon the province of the jury, is scarcely excelled, in its absurdity, by the suppo- sition that one who consults medical men will expect them to advise him of their opinions upon other similar cases, and not in regard to his own. But we appre- hend no sensible judge ever held, that if the testimony of an expert was admissi- ble in the form of an opinion, it should not be given with reference to the assumed or supposed facts of the particular case. There is one other consideration which will aid our judgment in reaching the proper form of question to experts. They are not called to decide any question of fact involved in the case, but only to instruct and educate the jury, so as to enable them properly to estimate the weight and bearing of such facts upon the final determination of the case. And this instruction, aid, and assistance of the experts is not, in any sense, obligatory or coiitrolling upon the jury, but only auxiliary, so far as they deem it just and reasonable. This is clearly stated in the preceding cases under this head ; and the quality and character of the testi- mony of experts is particularly dwelt upon in those opinions, as being, in some cases, of great assistance to the jury, and in others almost wholly unreliable ; and the particular grounds of this defectiveness in the testimony of experts is specially dwelt upon by Chief Justice Shaw, in Rogers's Case. These are, want of knowledge and experience, and the attempt to maintain particular theories. By courtesy, the opinions of all practising physicians are commonly received in the trial of questions of insanity, especially where they have had opportunity to examine the particular person whose sanity is in question. But, in point of fact, half the practising physicians do not know as much about the symptoms and evidences of insanity as a well educated lawyer, or as many shrewd and cautious laymen. And, on the other hand, a medical man of considerable learning and experience, whose mind is filled with conceits and imperfect and untested theories, is almost incapable of forming a cool and dispassionate opinion upon any case of the kind. Ignorance is a fatal defect in an expert, but conceit is scarcely less so. You must, then, in order to render the testimony of experts of any avail, in a cause involving a question of testamentary capacity, found all your questions upon a clearly stated basis of facts, not too numerous, and by no means compli- cated or involved. And whether these facts are hypothetically,stated, or taken from the actual testimony given in the case, or assumed in any other form, as the basis of the question, is not material. They will, in any form, be understood by the jury, as having reference to the particular case, as claimed by one or both the parties. Unless that is the case, the question will have no relevancy what- ever, except upon cross-examination. 52 TESTAMENTARY CAPACITY. 4. Woodhury v. Obear, 7 Gray's Reports, 467. 1856. An expert who has been present during the trial, and heard all the testimony, cannot be asked, " Suppose the facts stated by the several witnesses to be true, was the testator laboring under an insane delusion, or was he of unsound mind ? " But he may be asked his opinion upon any state of facts which the counsel claims to be proved by all or any part of the testimony. Peculiar opinions of the testator, as that he believed in ghosts and supernatural influences, may show feebleness of mind, and consequent exposure to undue influence. Opinion of Shaw, C. J. 1. The court are of opinion that evi- dence tending to show that the testator was of feeble mind, and believed in ghosts and supernatural influences, liad some tendency to show unsoundness of mind, or that weakness of mind which would be easily imposed upon by the exertion of undue influence. The testator's statement of facts respecting Zebulon,his heir, were admissible, as showing his state of mind, but they raised no pre- sumption that the facts themselves were either true or false. If they were not proved to be false, or inconsistent with the relations in which the parties stood to each other, and with other facts proved or admitted, and not so intrinsically improbable, wild, and strange as of themselves to show unsoundness of mind, they would not go far to prove insane delusion ; but the question was one of weight, and not of competency ; it was competent, and its weight was for the jury to consider. 2. We think the question put to Dr. Williams as an expert, asking his opinion whether, having heard the evidence, he was or was not of opinion that the testator was of sound mind, was not admissible in that form. This would be especially irregular where the evidence is conflicting, because it puts it in the power of the expert to give an opinion upon the credibility of the testimony and truth of the facts, which is purely a question for the jury, and then upon the value and elBcacy of the facts and j^ircumstances, in his opinion thus proved, upon the question of soundness of mind. We think the question, as modified by the court and then admitted, was correct, to put the case hypothetically ; as thus : If certain facts, assumed by the question to be established by the evidence, should be found true by the jury, what would be his opinion upon the facts thus found true on the question of soundness of mind ? FORM AND EPFECiT OF EXPERT TESTIMONY. 53 Supplementary Cases upon Poiijts already alluded to. The following cases have an important bearing upon more than one of the questions which we have already discussed, and, coming from a judge of such unquestioned learning and ability, may well find a place at this point in our collection of cases. Harrison v. Rowan, Z Washington's Oircuit Court Reports, 580. 1820. 1. "A witness may be asked what opinion he formed of the sanity of the testator, at or about the time of the will being made, but not what he said to third persons upon the subject." 2. "It was irregular for the plaintiff in the first instance to give evidence of sanity. All that he has to do is to prove the due execution of the will, according to the form prescribed by the statute. Incapacity or fraud is the defence set up on the other side, which the plaintiff is then called upon to repel. Nevertheless, it would be too rigid to preclude the examination of his witnesses on that subject, because he had irregularly asked some questions respecting it in the first instance." The foregoing points are stated in the words of the court, and as they embrace the substance of the whole opinion in regard to them, it will not be important to give the opinion upon these points more in detail. The opinion upon the general merits of the case was given, very much in detail, by Mr. Justice Washington, and, although in the form of a charge to the jury, was no doubt pre- pared with great care, and has since been held in high esteem by all judges and text writers upon the questions embraced. The following notes cover the points discussed : — 3. It is not necessary to show that the will was read to the testator. The law presumes he knew its contents from his execution of it. But where he was blind, or incapable of reading, and there is evidence tending to show that he might easily have been deceived or imposed upon by those about him, it is incumbent upon those claiming under the will to prove satisfactorily that the testator understood the contents of the will. 4. The testator should be shown to have had a sound disposing mind and memory; that is, that he was capable of making his will, with an understand- ing of what he was doing. 6. The subject extensively illustrated. 6. The evidence of the attesting witnesses is of great weight. 54 TESTAMENTARY CAPACITY. "Washington, J., charged the jury. This is an issue directed by this court, sitting in equity, to try whether John Sinnickson made a valid will for disposing of hia real estate ; and this is the question which you are to decide, upon the evidence which has been laid before you. The plaintiff holds the affirmative of this question ; and all that he has to do is to satisfy you that this will was executed in due form, according to the laws of this State. This he has done, and no question has been made at the bar upon this point. But the defendant impeaches the validity of the will upon the following grounds : 1. Want of a testamentary capacity in the testator to dispose of his property by will ; and, 2. Fraud and cir- cumvention produced upon the testator by the person who drew the will. A third objection was made by one of the defendant's counsel, which was, that the will is not proved to have been read over to the testator in the presence of witnesses. We understand this to be made as a substantive objection to the will, although it was not so argued by the other counsel on the same side, who very properly considered it merely as a badge of fraud, that it was not proved to have been read. We will, therefore, at once dispose of this point by observing that it is not necessary, in order to establish the will, that the person claiming under it should prove that it was read over to the testator in the presence of the attesting or of other witnesses. It would be an unwise provision in the law to require this to be done, inasmuch as most men are careful to con- fine to their own breasts the manner in which they have disposed, or mean to dispose, of their property by will. The domestic peace and harmony of the testator's family might be very unhappily jeoparded if publicity were necessary to be given on such occasions. The law presumes, in general, that the will was read by or to the testator. But if evidence be given that the testator was blind, or from any cause incapable of reading; or.if a reasonable ground is laid for believing that it was not read to him, or that there was fraud or imposition of any kind practised upon the testator, it is incumbent on those who would support the will to meet such proof by evi- dence, and to satisfy the jury either that the will was read or that the contents were known by the testator. We now proceed to lay down some general rules for assisting the jury in coming to a satisfactory conclusion upon the two points of FORM AND EFFECT OF EXPERT TESTIMONY. 65 capacity and fraud, and to notice some of the arguments at tlie bar, for the purpose of giving the sanction of the court to such of them as we think are consonant with law, and our disapprobation of those whicli are not. 1. As to the testator's capacity. He must, in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an under- standing of the nature of the business in which he is engaged ; a recollection of the property he means to dispose of; of the per- sons who are the objects of his bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and compreliend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed — tlie disposition of his property in its simple forms. It is the business of the testator to dictate the pur- poses of his mind ; and of the scrivener to express them in legal form. In deciding upon the capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of his bodily health, that is to be attended to. The latter may be in a state of extreme imbecility, and yet he may possess sufficient understanding to direct how his property shall be disposed of. His capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of other business ; as, for instance, to make contracts for the purchase or sale of property. Bor most men, at different periods of their lives, have meditated upon the subject of the disposition of their property by will ; and when called upon to have their intentions committed to writing, they find much less difficulty in declaring their intentions than they would in comprehending business in some measure new. The soundness of the testator's mind is to be judged of from his conversation, or from his actions at the time the will is made, or from both taken together. It is not sufficient, 'per se, that he should be able to describe his feelings, or to give suitable answers to ordinary questions. Tiiis he may do, and yet the mind may be too much diseased to enable him to dispose of his estate with understanding and discretion. It must also be remembered that the fact of competency is to be decided by the state of the testator's mind at the time when the 56 TESTAMENTARY CAPACITY. will was made. And although evidence of the state of his mind and of his bodily health before and after that time may be given in order to shed light upon its condition at that period, still such evidence is not otherwise to be regarded. For, although it should be proved that at a prior or subsequent day he was incapable of making a will from the effect of a temporory cause, such as fever and the like, it will not follow that he was so when the will was executed. In weighing the evidence of sanity, that of the attesting witnesses is most to be regarded ; because it is more likely that they should be attentive to the conversation and actions of the testator than mere by-standers, who do not feel themselves particularly connected with the transaction. On the other hand, the subscribing wit- nesses are, in some measure, parties to it ; and there are few per- sons so ignorant as not to know that the sanity of the testator is essential to the validity of his will. As to the subject-matter of the testimony, it may be well to remark that the mere opinions of the witnesses are entitled to little or no regard, unless they are supported by good reasons, founded on facts which warrant them in the opinion of the jury. If the reasons are frivolous or inconclusive, the opinions of the witnesses are worth nothing. To this, as a general rule, the opinions of medical men, even although they did not see the testator, may be considered as an exception. A physician may, with some degree of accuracy, form an opinion of the nature of the disorder, and its probable effect upon the mind, where the symptoms are truly stated to him ; because, from a long course of experience and observation by himself and others of the profession, such have been the ordinary effects of these symptoms. But to entitle such opinions to the regard of a jury, they should be satisfied by the other evidence in the cajise that the symptoms did exist in the particular case under consideration. And if the opinions of these professional gentle- men should differ materially as to the ordinary effects of certain symptoms, the jury must weigh their evidence, as in other cases, and decide according to the opinion they may form of the com- parative judgment, learning, and experience of the witnesses themselves. In this case the physicians who have given testimony have differed essentially from each other in the opinions delivered to the jury ; and there is no inconsiderable collision in the evi- FORM AND EFFECT OF EXPERT TESTIMONY. 6 dence of the other witnesses respecting the material symptoms of the disorder, which, it is agreed on all hands, caused the death of the testator. It is proper to observe upon this subject that the opinion of the physician who attended the testator during his last illness is, for the most obvious reasons, always entitled to more regard than the opinions of physicians who had not this advantage. If the jury should be of opinion that the testator was not com- petent to make his will, they will, of course, find for the defendant. If they should not be of this opinion, they will then inquire, secondly, whether the will in question was obtained from him by fraud or circumvention of any kind. It is contended, in support of the charge of fraud, that the testator is proved to have been for a long time in the habit of using spectacles, and that he was without them on the evening when his will was executed ; consequently, that he could not have read the will himself after it was written ; and that the evidence lays strong ground for believing that the will was not read to him by the person who wrote it. It is further insisted that the unnatural disposition of so large a portion of the testator's estate from an only and beloved daughter to persons less nearly related to him, and this, in many respects, in opposition to previously formed resolutions, not shown to have been changed, and to declarations in proof of such resolutions, and the bequest of a considerable prop- erty to the wife of the person who drew the will, — unitedly estab- lish the charge of fraud and circumvention. That these circumstances, if proved to the satisfaction of tlie jury, deserve their serious consideration is unquestionable. For altliough fraud is never to be presumed, yet it is not necessary to prove it by direct and positive proof. Fraud most commonly veils itself in mystery ; and it is by circumstances only that it can in general be detected and brought to light. It should, nevertheless, be recollected that these circumstances should be so strong, wlien combined and examined, as to satisfy the jury of the existence of the fact they are adduced to establish. It will not do if they affect the judgment with nothing more than doubt and suspicion. Tlie charge of fraud is repelled by the plaintiff upon the follow- ing grounds : 1st. That Mr. Harrison, who wrote the will, did not obtrude himself upon the testator, but was sent for and confided in by him to perform this service, as he before had done other professional services ; that it was written by the direction of the 68 TESTAMENTARY CAPACITY. testator, who acknowledged to the witnesses that Mr. Harrison had not been officious in tlie business. 2d. That the testator declared, before the will was made, that he had arranged and digested the disposition of his property in his mind, and required only some person to commit it to writing. 3d. That Mr. Harrison was in the room with the testator for three or four hours, and had, there- fore, abundant time to write and to read over the will to him. And lastly, that the testator, after signing the will, acknowledged to the witnesses that it was his will ; and added, that he was per- fectly acquainted with its contents ; and being asked by Mr. Har- rison wlio was to take care of it, he answered, " You, of course." Mr. Harrison is the sole executor and trustee of the whole estate. It is insisted by the counsel, and we think with great weight, that if the testator knew what he was about, and was possessed of sufficient understanding to make a valid will, his acknowledg- ments to the witnesses, and liis direction to the executor to take charge of the will, amount to strong and persuasive evidence that he was acquainted with its contents. Whetlier the grounds of tlie plaintiff's and defendant's arguments are made out by the proofs in the cause, you must decide. There is considerable con- tradiction in tiie testimony of the witnesses on one side and on the other. It will be your duty to reconcile them as far as you can ; and, in weighing evidence, to compare not only the credibility and characters of the opposing witnesses, but their judgment and opportunities of giving correct information respecting the facts they have related. You are to say whether John Sinnickson had a sufficient capacity to make a testamentary disposition of his real estate with discre- tion and understanding at the time when this will was executed by him ; and if he had such capacity, then, 2d, whether this is his will, or whether he was induced to execute and acknowledge the same by fraudulent practices or imposition of any kind. If you find the first question in the negative, or the last in the affirmative, your verdict ought to be for the defendant ; if otherwise, you should find for the plaintiff. In weighing the evidence, should you think it doubtful or balanced, you ought to incline in favor of sanity, and against fraud. FORM AND EFFECT OF EXPERT TESTIMONY. 59 Steveiis V. Vancleve, 4 Washington's Circuit Court Reports, 262. 1822. A man whose memory is totally extinguished cannot be said to possess under- standing to any degree whatever, or for any purpose. But the memory of the testator may be very much impaired, so that he has not sufficient strength of memory and vigor of intellect to digest all the parts of a contract, and still he may be competent to direct the distribution of his prop- erty by will. The question is not so much as to the degree of memory possessed by the testa- tor, as, Had he a disposing memory ? Was he capable of recollecting the property he was about to bequeath, the manner of distributing it, and the objects of his bounty ? In short, were his mind and memory sufficiently sound, to enable him to know and to understand the business in which he was engaged at the time he executed his will ? The point of time to be looked at is that of the execution of the instrument. The testator may have been incapable of executing a will, at any time before or after ; but that is not important, except as it tends to show incompetency at the time of the execution. The testimony of the attesting witnesses is most important, since they attest not only the due execution, but the competency of the testator, at the time of execution. Next to the attesting witnesses, the testimony of those present at the execution of the will, will be regarded as most reliable, other things being equal. Testimony as to declarations made by the attesting witnesses, in conflict with their testimony, should be viewed with distrust, and carefully scrutinized, in order to be assured that it was made seriously, clearly understood, and correctly remembered and reported. The opportunities for its being mis- understood or imperfectly reported are such as to require great caution in acting upon it. What amounts to signing the will by the testator, through the agency or assist- ance of another, carefully considered, and discussed in detail. The burden of proving insanity rests upon the contestants, until it is once established; then the burden shifts, and the proponent must prove sanity restored at the time of making the will. The mode of weighing conflicting evidence discussed. Tliis case contains the discussion of all the foregoing points by a judge of great learning and experience, in an extended charge to the jury, in an important and closely contested case, after careful argument by the ablest counsel which have adorned the bar of New Jersey at any period of its brilliant history. We regard it, upon every account, as one of "the most valuable cases to be found in the American Reports ; and it has more and more commanded the respect of the profession, both here and in England, as time 60 TESTAMENTARY CAPACITY. advanced and the questions became more thoroughly understood. And the same may be said of the next preceding case. Washington, J., charged the jury. As the objection to the exe- cution of the will will be noticed hereafter, I shall, for the present, confine my observations to the single question of the testator's competency to make a will. He must, in the language of the law, be possessed of a sound and disposing mind and memory. He must have memory. A man in whom this faculty is totally ex- tinguished cannot be said to possess understanding to any degree whatever, or for any purpose. But his memory may be very imperfect ; it may be greatly impaired by age or disease. He may not be able, at all times, to recollect tlie names, the persons, or the families, of those with whom he had been intimately acquainted ; may at times ask idle questions, and repeat those which had before been asked and answered ; and yet his understanding may be sxifficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of memory, and vigor of intel- lect, to make and to digest all tlie parts of a contract, and yet be competent to direct the distribution of his property by will. This is a subject which he may possibly have often thought of; and there is probably no person who has not arranged such a disposi- tion in his mind before he committed it to writing. More especially, in such a reduced state of mind and memory, he may be able to recollect and to understand the disposition of his property which he had made by a former will, when the same is distinctly read over to him. The question is not so much what was the degree of memory possessed by the testator as this, — Had he a disposing memory ? Was he capable of recollecting the property he was about to bequeath ; the manner of distributing it ; and tlie objects of his bounty ? To sum up the whole in the most simple and intelligent form, Were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time when he executed his will ? This being the question, and the only one at this time for your consideration, I shall proceed to lay down the following general rules to assist you in your deliberations : — 1. The only point of time to be lo'oked at by the jury, at which the capacity of the testator is to be tested, is that when the will was executed. He may have been incapable to make a will at any FORM AND EFFECT OF EXPERT TESTIMONY. 61 time before or after that period ; and the law permits evidence of sucli prior and subsequent incapacity to be given. But unless it bear upon that period, and is of such a nature as to show incom- petency when the will was executed, it amounts to nothing. This being the important epoch : 2. The evidence of the attest- ing witnesses, and, next to them, of those who were present at the execution, — all other things being equal, — is most to be relied upon. The reason is an obvious one. The law considers the attesting witnesses, in particular, as called upon by duty to exam- ine into and to be satisfied of the capacity of the testator to make a will. There are few men so ignorant as not to know that a per- son non compos mentis cannot make a valid disposition of his property by will, and that his signature to the will attests not only its execution but its validity. These witnesses besides, and others present at the execution, have a better opportunity of judging of the soundness of the testator's mind, from his words, actions, and appearance, than those who merely saw him at other times. I now proceed to lay before you the substance of the evidence, beginning with that given by the attesting witnesses, and by those examined to support their testimony ; and afterwards that of the witnesses who speak of the testator's incompetency before and after the execution of the will. [After summing up the evidence on both sides, the judge pro- ceeded.] With respect to the evidence given of declarations made by two of the attesting witnesses upon the subject of the testator's com- petency, in collision with what they have sworn, I think it proper to remark that it ought in most, if not in all cases, to be received with great caution by the jury. The testimony of a witness whose veracity and character are otherwise unimpeached, given under the solemn sanction of an appeal to the great Searcher of Hearts, ought not to be lightly estimated, in consequence of loose declara- tions made at other times to persons in no wise interested in the subject to which they refer, and which were possibly on that ac- count little attended to, imperfectly understood, and never again thought of by them. I do not mean to say that such evidence is unworthy of the consideration of the jury ; quite otherwise. But it should be received with some degree of jealousy, and should be thoroughly examined and weighed. If, then, you believe the four witnesses who were present at the 62 TESTAMENTABY CAPACITY. execution of the will, and the facts to which they deposed, three of them being the attesting witnesses, the will was legally exe- cuted. It was contended, indeed, by the plaintiffs' counsel, that, in point of fact, the name of the testator was written by John Pharis ; and if so, the will was not executed according to the provisions of the law of this State. The fact is most probably stated correctly by the counsel ; but is it to be believed that, when all persons, except those of unsound mind and memory, are permitted to dis- pose of their property by will, the legislature could have intended . to deny this privilege to tliose who from accident, disease, or want of education could not write ? If such be the construction of the law, it would be insufficient for the testator to make his mark, since that would not amount to subscribing his name. The fact is, that at the time the act of assembly was passed, the Statute of Frauds and Perjuries, 29 Car. I., was in force in this State, and was not repealed by the act. And although at a much later period all the statutes of England were repealed, still the above statute had become incorporated with, and formed a part of the land laws of this State, so far as it respected last wills and testaments ; and has always, as I understand from Judge Pennington, been considered as furnishing the rule as to the execution of wills. If so, this will was executed in strict conformity with the statute ; since the submission of the testator (who, in relation to this part of the case, is to be considered as fully conusant of what he was doing) to have his liand directed, so as to write his name, was at least equivalent to an express direction to another to sign his name. For it cannot be denied ■ that, under the statute, the direction to subscribe the name of the testator may be given by him by signs, as well as by words. But be the law upon this subject as it may, this will, in the opinion of the court, ^^s, upon strictly legal principles, signed by the testator, his hand being with his own consent guided by another, and the will afterwards acknowledged by him. Under these cir- cumstances, the act of Pharis was, in point of law, the act of the testator. Whether the testator was competent to make his will, is a ques- tion of fact, which you must decide, after an attentive consideration of the evidence given on both sides. The presumption of law always is in favor of sanity at the time the will was executed, and FORM AND EFFECT OF EXPERT TESTIMONY. 63 the burden of proof lies upon the person who asserts unsoundness of mind, unless a previous state of insanity has been established, in which case the burden is shifted to him who claims under the will. In the examination of this question, your first inquiry will natu- rally be. Can the evidence be so reconciled as that the facts stated by the witnesses on both sides may be true ? If, by a fair com- parison of the evidence and a correct course of reasoning, this can be done, charity, as well as the injunctions of law, call upon you to examine that evidence with this view. Although the testator's memory had greatly failed, even to the extent stated by many of the plaintiffs' witnesses ; although when those witnesses saw him, sometimes for a very short period, at others for a long duration, the testator sometimes addressed by the witnesses, and at other times not spoken to at all, or excited to speak ; although- he was sometimes seen by those witnesses lying silent, and in a state of apparent insensibility, with a vacant or stupid stare, so helpless as to be ministered to as if he were an Infant ; sometimes appearing to recognize those about him, and at other times not, — may he not have spoken and acted precisely as the four witnesses who were with him when the will was executed have sworn he did ? Between those witnesses tliere is no material contradiction, though they do not state all the circumstances pre- cisely in the same way. May not John Pilaris have spoken the truth and judged correctly, when he deposed that the testator was more revived on the morning of the 24th of August than he liad seen him for three or four weeks preceding, and that he continued so for the greatest part of the day ? May not the anodynes which it seems he was in the liabit of using have affected his speech or his disposition to speak at particular times ? And may he not have been more disposed, at all times, to converse with or address questions to the members of his family, wtio were generally in his room, and attending to him, rather than with strangers, or even neighbors and friends who called only occasionally to see him ? These and similar questions may be well worthy of the serious examination of the jury. But if, in your opinion, tliere are irreconcilable contradictions in the evidence, so that the state of the testator's mind could not be as the plaintiffs' witnesses have deposed it was before and after the 24th of August, and yet that he should be competent to make 64 TESTAMENTARY CAPACITY. his will 911 that day ; you will then have to weigh the credit of the witnesses, to inquire into their respective capacities to form a correct judgment upon the matters about which they have deposed, and to compare the opportunities of judging correctly which were offered to the witnesses on the one side and the other. The jury found for the defendant. Examination op many Qoestions discussed more or less in the preced- ing Cases, especially in Regard to the Form of Questions to Experts AND other Witnesses, when allowed to express Opinions. The following opinions, although covering a large space, em- brace a very exhaustive examination and discussion of a consider- able number of important practical questions, both upon principle and authority, most of which we have considered to some extent in the earlier parts of this volume. It will be seen by a careful reading of the opinions that the American courts have attempted many refinements upon the form of propounding questions, especially to experts, which in the English courts have been left more to the good sense of the examiners and the exigencies of the particular case. This was more the practice in the earlier cases in this country ; and as the acknowledged purpose of all testimony before a jury is to enable them to obtain the most perfect knowledge of the case, in all its bearings, we have never been able to perceive any benefit, in most of the refinements which have been attempted in regard to the form of questions to be propounded to witnesses, in regard to testamentary capacity. It seems to have been held, from an early day, that witnesses should not be called to express a direct opinion upon the very point upon which the verdict is to turn. And" still it is impossible to maintain that in the details of a trial, upon points where it is competent for witnesses to express opinions, they are not to express those opinions upon the very point before the jury. Whenever it becomes important for a jury to pass upon a question of value of property, or solvency, or health, nothing could be more absurd than to take the opinion of the witnesses upon some supposed analogous case. No State or coun- try ever attempted to maintain any such rule, that we ever knew or heard of, except the State of New Hampshire ; and while they have FORM OP GIVING TESTIMONY BY EXPERTS. 65 thus become a laughing-stock, even to themselves (for we never met a New Hampshire lawyer who did not view it in that light), they have perhaps gained more credit for persistence in the error than they could have lost by its original adoption, since it is made a very 'harmless thing in their practice. Instead of asking the opinion of the witness in regard to the value of the very house which the jury are to appraise, and with which the witness has been long well acquainted, he is gravely asked his opinion of the value of just such another house, the court and jury having a grim smile and half sneer over the form of the inquiry, and the counsel on either side responding. It may seem almost like levity in us thus to refer to the solemn process of appraising property before a jury, by first finding the value of other property of precisely the same qualities in all respects, — and all this to avoid interfering with the province of the jury ! But, in fact, the New Hampsliire courts have the advantage in the argument, if the American or English courts are well founded, in applying the same rule to questions of sanity or negligence before a jury. If there is any soundness in the rule, it must apply to all analogous questions before the jury. But the truth is, that the rule itself has no application to any particular question before a jury, or certainly not to the particular evidence, upon one side or tlie other, but only to the general result and summing up of all the evidence, either upon different sides of a particular question, or upon different points in the case. No doubt this grouping of the different opinions on one point, or on the different points in the case, is exclusively the province of the jury ; and no expert can be allowed to give testimony, with a view to aid them in that function or duty. That is the office of counsel ; and if it is supposed the learning and experience of scientific men can render important aid in enabling the jury to come to a satisfactory result even in digesting the Evidence, which is not improbable < in many cases, it must be done by them, by way of argument, or else tiirough counsel. But to extend this same rule to all the particular ^opinions allowed to be given in evidence during the trial, is an extension of the rule, the absurdity of which one can scarcely comprehend, in any such perfection, as by push- ing it to the same extreme which is done in New Hampshire, where we may suppose, upon questions of identity, when the verdict turns upon that single question, the witnesses will be precluded 5 66 TESTAMENTARY CAPACITY. from saying to the jury that in tlieir opinion it is the very same person, but only that he is in all respects just such a person. If law- yers and judges were not more obtuse than most other classes of persons, in comprehending their own errors, we should suppose it would be impossible to state the case of witnesses, called to express opinions upon questions of personal identity, and not convince them that the attempt to apply tiie rule to any opinion of a witness^ upon any particular question upon trial before a jury, was an absurdity. But we suppose they will still continue to wade through the absurdity, year after year, in trial after trial, without coming to any such common understanding as will enable them to abandon it. To apply these views to the case of opinions upon testamentary capacity, it will not be diiScult to comprehend that there is no more need of evasions and refinements in order to escape from the inconsistency of thrusting the witness into the province of the juror, in questions of testamentary capacity, than in regard to questions of the value of property, or of personal identity. If in the latter two cases it involves a gross absurdity to ask the opinion of the witness upon any other than the very question before the jury, the rule is equally applicable in questions of mental comprehension and capacity. The jury do not desire to know the opinion of the witness upon some similar or. analogous case, but upon the very one before them; they do not ask the witness how far one of equal capacity with the testator will be able to comprehend a similar will to that before them, but how far the testator himself, in the very state of mind he was in at the time he made the will before them, really did possess mental comprehension sufficient to understand it. It is only because we have not sufficient confidence in the capacity and firmness of juries that we devise so many idle and absurd safeguards against their being misled or imposed upon. But the fact often is, that a common jury will really digest and apply the testimony in a complicated will-case more judiciously and with a wiser discrimina- tion than the experts, the counsel, or the court even. We have ourselves more than once known a jury to return into court with doubts, suggested by views entering deeper into the real principles involved in the case than any other one connected with the trial had before suggested. We have never found any difficulty in keeping the jury to the true principles involved in the case, and we should have no more apprehension of their being misled by COMPETENT TESTIMONT. 67 irrelevant testimony, than of the court being misled in the same manner. Jurors are not misled by any of these refinements and evasions to which we resort to avoid misleading them. They com- prehend, as well as we do, the thinness "of the partition between put- ting the question directly, or indirectly, and we make our conduct matter of ridicule to them in resorting to all such petty evasions. And even the counsel, by common consent, before the trial is half over, commonly abandon the refinements of questioning in a par- ticular form, and fall into the natural, straightforward mode. See the remarks of Woodward, J., in Daniel v. Daniel, 39 Penn. St. 191 ; s. c. post, p. , and the opinion of Doe, J., in State v. Pike, 11 Law Eeg. N. s. 233, -post, p. 140. Beaubien v. Oicotte, 12 Michigan Reports, 459. 1864. Where a witness is under cross-examination as to the minute particulars of what passed in a former transaction, in regard to which he had before testified, it is not improper to inquire whether he did not, on the former occasion, testify to the occurrence of a particular fact. In order to fix the exact time of a transaction by the testimony of a witness, it is not improper to call the witness's attention to his language in giving testimony on a former occasion, or even to read in his hearing the minutes of testimony taken by counsel on that occasion. Where a will, in favor of a particular party, is attempted to be impeached, upon the ground that it was obtained through the weakness of mind of the testator, and the undue influence of the beneficiary, it is competent to give in evidence the declarations of the testator in regard to his aversion to such person, and the necessity of his yielding to her demands, to obtain peace, made about the time of executing the will. After one of the subscribing witnesses has testified to the valid execution of the will by the testator, and his capacity to execute the same, and has denied saying upon a particular occasion that if the family followed it up they would break the will, for it was not worth a snap of his fingers, it is competent to show by other witnesses that he did so state, especially when the witness was the at- tending physician of the testator at the time the will was executed. Such testimony tends directly to detract from the weight of the testimony of the witness. The complaints made by the testator's wife, who was the principal legatee under the will, against the provisions made, in a former will, for the family of the testator, and her abuse of tbem, and the testator's declarations that his family had not importuned him to make such provisions, are competent evidence to show the relations of the family and the testator's position and state of mind. Capacity requisite to execute a will implies that the testator understands what he is doing, to whom he gives his property, and in what proportions, and whom he is depriving of it. 68 TESTAMENTARY CAPACITT. The object of the trial is to give the jury perfect knowledge of the testator's mental condition. This was formerly done by personal inspection, or by the testimony of witnesses to facts, and opinions founded upon such facts, and other facts incapable of description. But unprofessional witnesses long acquainted with the testator have been al- lowed to give an opinion founded upon their knowledge and observation, and then detail such facts on cross-examination. [It should rest in the discretion of the court when the facts are stated, since it comes to the same result finally.] Unprofessional witnesses, not subscribing witnesses to the will, may express opinions in regard to the conduct, appearance, and capacity of the testator, and how far they indicated a sound mind. There is no good reason for any distinction in this respect between the subscribing witnesses and any others. Witnesses may state in detail the capacity of the testator to transact business of any or all kinds, but the answers should be, as far as practicable, directed to the particular kind of business, or the transaction under consideration. In the English courts of every kind all witnesses may testify to their knowledge, observation, and opinions, in .rtgard to the sanity and mental capacity of the testator. Professional witnesses may express opinions from the testimony of others ; but, in America, all witnesses are required to state the basis of their opinions, as far as it is practicable. There is no sound reason why witnesses should be denied the right to express opinions upon the very points before the jury ; but the decisions in this country do not seem to go that length. But in any sound view the question should be so framed as to require the opinion of the witness in the nearest allowable conformity to the very point before the jury. If it is not allowable, as some of the cases hold, to take the opinion of the wit- nesses, professional or otherwise, upon the point of the testator's capacity to comprehend the very will under consideration, it is clearly competent to take it in regard to one of precisely the same character ; and the nearer, the more satisfactory. The witnesses may give opinions upon any measure of capacity in the testator calculated to. aid the jury in their deliberations and conclusions. It is essential that the opinions which juries receive should enlighten them upon the very point in controversy, if possible, for otherwise their verdict must be conjectural, or the result of indefinite analogies. The opinion of the court was delivered by — Campbell, J. This case arises upon the will of Antoine Beaubien, deceased, probate of which was refused in the Probate Court and in the Circuit Court for Wayne County, to which an appeal was brought. The will was opposed on the grounds of incapacity and fraud and undue influence. The proponents now bring error, alleging that the court below received and rejected testimony improperly. The will was sworn to have been executed at Detroit on the 12th STATEMENT OF THE CASE. 69 day of January, 1858. The testator had been married several years to the plaintiff in error, Julia Beaubien (now remarried to Thomas Coquillard), and had no children of his own. His wife had- four children, one of whom, Rose, was married to Joseph A. Moross, who, with his wife, also joins in the writ of error. The will was drawn at Mt. Clemens, in Macomb county, by Robert P. Eldredge, who drew it from memoranda furnished by James B. Eldredge. Moross visited Mt. Clemens to get R. P. Eldredge to come to Detroit and draw it. He sent his son James, wlio was at that time a student at law. He testifies to having received instruc- tions from Beaubien, through Mrs. Beaubien and Moross, who in- terpreted between him and Beaubien, witness not understanding French, which was the language in which they conversed. R. P. Eldredge the next day drafted the will at Mt. Clemens from his son's memorandum, and gave it to Moross. This was on the day before the will is sworn to have been executed. He also gave Moross a memorandum, directing, among other things, that the attending physician of Mr. Beaubien should be present at the execution, and ask him if it was his will, and attest it as the principal subscrib- ing witness. The persons present at the execution as witnesses were. Dr. Isaac S. Smith, Beaubien's physician (who lived at Gi'osse Point, about nine miles from Detroit), Ignace Moross, a brother of Joseph Moross, and Francis Provost. Dr. Smith testified in his direct examination concerning tlie time and circumstances of the execution of the will, and that on that occasion a servant-man came to his place after him, and said Mr. Beaubien wanted he should come down, and that witness arrived at the house from ten to eleven o'clock. Upon cross-examination concerning the time and circumstances of his going to Detroit, he stated : " A man, I suppose a servant, came for me the day of the execution of the will, and told me that Mr. B. wanted me to come as soon as I could conveniently. He did not tell me to come in haste, and I did not hurry. QanH say whether the man came hefore hreak- fast; think I got to Mr. Beaubien's about eleven o'clock." The next day, his cross-examination continuing, he testified : " I think that when the man came to call me on the day that the will was exe- cuted, he simply stated that Mr. Beaubien wanted to see me." He then states that the man must have come earlier than he before testified, and must have arrived at his house before breakfast, and by seven o'clock. Further on he testifies : " The man who came fO TESTAMENT AET CAPACITY, ifter me, at the time the will was executed, said that Mr. Beaulien wanted I should come down and see him as quick as I could." He JFas then asked whether in his examination in the Probate Court ;ie did not testify that the man who came for him Irought the mes- sage that Mr. Beaubien was very sick. The question was objected ;o, but allowed under exception. Witness said it might have been 50, and he might have said so. No ground for the objection to the question is given in the bill of exceptions, but it is alleged to be irrelevant, and hearsay. We think the testimony was not objec- tionable. Witness on his direct examination had undertaken to state what the messenger told him ; and it seemed to have become important to ascertain the whole circumstances attending Dr. Smith's visit to Detroit, and whether it was hurried or deliberate. His own testimony had been somewhat inconsistent, and there would be no impropriety in suggesting to him — especially on cross-examination — whether he liad not testified before upon the same point, in order to get at his best recollection. It cannot be regarded as immaterial to ascertain all the details of a transaction which, if not a lawful and proper testamentary transaction, must have involved an improper combination or conspiracy. If a will is not genuine, or is in any way improperly obtained, it is to be expected that no publicity will be given to the steps attending its preparation. In all cases, therefore, where a will is contested on any such ground, a very broad inquiry is permitted into the whole chain of circumstances attending its preparation ; and the trans- action must be deemed to embrace all the immediate preliminaries. It has always been held that inquiries concerning alleged frauds could not be limited by arbitrary rules, but that proof may be given of any matter at all tending to throw light upon the affair. It appears here that the instructions for executing the will con- templated that the physician should be sent for. The res gestae necessarily embrace this as one of the steps actually taken. What message was sent, or received and acted upon, is therefore admis- sible as a circumstance, which may have weight or not, as made significant or not by other proofs. Objection was also made to allowing Dr. Smith to be asked whether he did not testify on a former trial that he " said yes and no, and played good Lord and good devil, because he did not know into whose hands he might fall." We can see no ground for any objection to this question. It would go very directly to his fairness and candor, and is one of COMPETENT TESTIMONY. 71 those questions commonly allowed to test the value of the witness as one likely to afford reliable evidence to the jury. Witness on cross-examination had stated that, some years before, he had a conversation with Mr. Beaubien in his wife's presence. No part of the conversation was given, and it does not appear what' it was about. Plaintiffs in error sought, upon re-examination, to ascertain what Mr. Beaubien said on that occasion. This the court refused to permit, as the cross-examination had not covered it. This refusal was correct. It does not appear to have had any bearing whatever upon any part of the controversy, and would have been opening an entirely new field of investigation. The proponents asked to have Joseph A. Moross and Rose J. Moross discharged from the case, upon exhibiting a renunciation by Moross of the executorship, and a quitclaim from Rose to her mother of all interest under the will ; and also proposed to have said Moross sworn as a witness on such discharge. The court refused to permit the change of parties to be made. Whether parties who have taken an appeal from the court below, as proponents of a will, can be discharged in the Appellate Court, is a question concerning which we have been referred to no satis- factory authorities. It has been held in some cases that an original Probate Court may discharge, in its discretion. But if the power exists, it can hardly be claimed as a matter of right. The proponents of a will, when they appeal from the decree refusing probate, become actors responsible for costs, and shaping the issue to suit themselves. Should they all withdraw, the appeal must go down, according to the ordinary rules governing such matters. If all cannot withdraw, and all should desire to do so, and yet to leave the controversy pending, it might be difficult to settle such a dispute if the right exieted. The utmost that can be claimed, as we think, is that a court may use its discretion to allow a claimant to withdraw upon such terms as shall not prejudice the rest. It is intimated in Brush v. Holland, 3 Bradf. 240, that an executor cannot withdraw after he has so far acted as to offer the will for probate. The question, except so far as it regards this suit, is unimportant now, because parties are no longer excluded as witnesses. If there was any power in the court to allow the application, it was discretionary, and the refusal is not to be re- viewed on error. We do not feel called upon, therefore, without further argument, to determine under what circumstances, if any, such parties may be allowed to withdraw from the controversy. 72 TESTAMENTARY CAPACITY. The witness, Peter P. Le Pevre, having testified concerning the time when he made a visit to Beaubien before his death, counsel for contestants were allowed, under objection, to call his attention to his testimony on a former trial, in order to refresh his recol- •lection ; and this was done by referring to and reading counsel's minutes of the former testimony. The authorities recognize this as not improper. The modes of recalling a witness's memory to facts which he has forgotten can- not be arbitrarily restricted, and, if suspicious means should ever be used, the remedy is to be found in cross-examination and com- ment. 1 Stark. Ev. 177. The precise course allowed here was permitted in Laws v. Reed, 2 Lew. Cr. Ca. 152. Mr. Greenleaf also refers to some other decisions involving the same principle. 1 Greenleaf Ev. § 436, note 3. The point was not strenuously urged upon the argument, and we think the court below com- mitted no error in allowing the question to be put, or in allowing the reference to the former testimony of the witness. One Matthias Rouleau, who had been a gardener in Beaubien's employment for several years, but left him some time before his death, was permitted to testify to a conversation held with Beau- bien shortly before his death, in which the deceased expressed regret at having married, and stated that he was not master at home ; that he was afraid of his wife, and was compelled to sub- mit to her demands, or otherwise there would be trouble in the house. The issue presented for trial involved questions of capacity and of undue influence. It has been held generally that the dec- larations of a testator concerning his feelings in regard to different persons are the best evidence of his real sentiments, where they are made sincerely and unreservedly. His feelings towards his wife, and towards the relatives of his own who would be affected by such a testamentary provision as is set up for allowance, must necessarily be inquired into in order to get at the true state of the case. It is said by the court in Waterman v. Whitney, 11 N. Y. 157, that " the mental strength and condition of the testator is directly in issue in every case of alleged undue influence ; and the same evidence is admissible in every such case, as in cases where insanity or absolute incompetency is alleged. It is abundantly settled that upon either of these questions the declarations of the testator, made at or before the time of the execution of the will, are competent evidence." Tlie question in that case was whether COMPETENT TESTIMONY. 73 the same rule would permit the proof of subsequent declarations, and it was held it would. See also Eambler v. Tryon, 7 S. & R. 90 ; Lightner v. Wike, 4 S. & R. 203. We can perceive no ground upon which this testimony can be properly excluded. Dr. Smith, who had testified in his direct examination to the valid execution of the will and the capacity of the testator, was asked wliether he had not, on a certain occasion, at Mr. Beaufait's house, had a conversation with George Moran and one Page, refer- ring to Beaubien's death and will, and declaring that if tlie family should follow it up they would break the will, for it was not worth a snap of his fingers. This he denied. Moran was called upon the stand and asked whether, on that occasion, Smith made the remark mentioned concerning the will. The question being ob- jected to was discussed, and withdrawn to introduce some prelim- inary inquiries which were objected to, and which related to tlie preliminary conversation touching Beaubien's death, and whether Moran had any conversation with Smitli that night about the will. Smith having denied any conversation with him on any subject. Tlie grounds of the objection were not given, but it is now claimed that the conversation, if had, was immaterial. We think the con- tradiction comes properly within the rule of impeachment. When a witness testifies on the stand that a paper was duly executed by a competent testator, his statement on another occasion that the instrument was worthless, is a clear contradiction on the very essence of the issue. The case of Patchin v. Astor Mutual Ins. Co., 3 Kern. 268, where the same objection was made that is made here, that the statement was one of opinion and not of fact, is directly in point. It was in the witness's power, if he saw fit, admitting the conversation, to explain that it was a mere matter of opinion, and based upon the facts sworn to on the trial. Such a statement, however, upon so plain a matter, is usually one which' would be understood as intended to cover facts ; and even if con- fined to opinion, it would, upon a question of capacity, and coming from the attending physician and subscribing witness, be as directly material to the issue, because the witness's opinion formed one of the most important parts of his testimony. It is difficult to con- ceive how a subscribing witness could declare a will wortliless, and yet not intend to convey a statement, of fact inconsistent with testimony which should show it to have been made by a man of sound mind, and acting without pressure. Tlie preliminary ques- 74 TESTAMENTARY CAPACITY. tions were necessary in order to identify time and place, and tlie fact of a conversation. The subsequent rejection of testimony which should have been received cannot affect the admissibility of this. The testimony of Trombley, to which similar objections were raised concerning preliminary questions, is express as to specific facts concerning the execution of the will, related to him by Smith, and not excluded or objected to. The preliminary inquiries were pertinent and proper. The testimony showing Mrs. Beaubien's abuse of tlie Beaubien family, when she ascertained the contents of a former will making provision for them, and her quarrel with her husband about it, was properly received. In all cases of this character it has been customary, as the reports show, to allow a wide range of inquiry into the family relations and the terms upon which they have lived. It would be impossible to obtain a clear idea concerning motives and probabilities without it. These cases, as before intimated, are determined generally upon circumstantial evidence ; and it must be received upon all points tending to throw liglit upon the various family relations. Tlie same remark will apply to the negative evidence that no complaint was made by Beaubien of any impor- tunity from his natural heirs. Although of no great force alone, it liad a tendency, if true, to show that her charges made to him about their rapacity did not meet with any response in his feelings, and also that he had not been driven to disinherit them by any such importunities of theirs. It was not irrelevant, and was ad- missible as throwing some light, however faint, upon these domestic affairs. The former wills, and other pecuniary arrangements for Mrs. Beaubien connected with them, were properly received in evidence. It is true, of course, that making one will does not, of itself, render it at all unlikely tliat another will may be substituted ; but previous preferences and plans may have a plain bearing upon an issue, where the question arises whether the testator has under- standingly, and of his own free will, changed his settled views. No case has been cited holding such proof inadmissible. It is of very frequent occurrence in the cases reported. Hughes v. Hughes, 31 Ala. 519 ; Irish v. Smith, 8 S. & R. 573 ; Love v. Johnston, 12 Ired. 355; Dodge v. Meech, 1 Hagg. 612; Marsh v. Tyrrell, 2 Hagg. 84; Mynn v. Robinson, 2 Hagg. 169; 1 Jarm. on Wills, 81-82, and notes (Perkins' ed.). The principal question argued upon the hearing related to the INQUIRY BEFORE THE JURY. 75 kind of evidence admissible to prove the extent of tlie testator's capacity, and the witnesses competent to give their opinions on the subject. We have had occasion in Wiiite v. Bailey, 10 Mich. 155, and Evans v. People, 12 Mich. 27, to refer to some features of thisinquiry, but the fulness of the argument in tlie present case, and the necessity of removing any doubts which may exist among practitioners in this State, render it proper for us to express our views more fully than was necessary in those cases. The case now before xis furnishes a good example of its kind, inasmuch as it involves the investigation, not only of the actual extent of Mr. Beaubien's capacity to make a will if let alone, but also that of making a will unaffected by such influences as are alleged to have been at work to guide his action. The abstract question, how much capacity a man must have to make a will, is not very impor- tant, because, with but one or two exceptions, the authorities are entirely agreed upon all that it is necessary for us to consider. It cannot be claimed that a will is valid, unless the testator not only intends of his own free will to make such a disposition, but is capable of knowing what he is doing, of understanding to whom he gives his property, and in what proportions, and whom he is depriving of it as heirs or devisees under the will he revokes. Harrison v. Rowan, 3 "Wash. C. 0. 580 ; Burger v. Hill, 1 Bradf. 360; Weir v. Fitzgerald, 2 Bradf. 42; Kinne v. Kinne, 9 Conn. 102 ; Sutton v. Sutton, 5 Harr. 459 ; Home v. Home, 9 Ired. 99 ; Converse v. Converse, 21 Yt. 168. Whether he can be required to possess any further qualifications, we do not now propose to con- sider. It was necessary, therefore, in the present case, for the jury to be made acquainted, as nearly as possible, with the precise condi- tion of the testator, in order that they might judge of it as they would have done had they personally known all about it. In all testimony the object of the law is to enable the jury to know all that the witness knows, which is pertinent to the issue ; and every rule of evidence is designed to secure this end. It is expected of jurors that they have the same powers of judgment possessed by ordinary men, but not the special knowledge belonging to certain occupations or studies. And the first question which arises is, whether there is any thing in the nature of inquiries concerning mental capacity, which requires juries to be informed, of necessity, by other than ordinary witnesses. 76 TESTAMENTARY CAPACITY. The law has always required mental capacity to render persons responsible for contracts or crimes, as well as able to make wills, although not applying precisely the same rules to the three sub- jects. In criminal cases, the jury, from time immemorial, have been obliged to pass upon the capacity of the accused. In civil cases, persons dealing with their neighbors have been held bound, generally, to form their conclusions of capacity at their peril, where they have had means of observation. Beavan v. McDonell, 26 E. L. & Eq. 540. It is only in modern times that medical science has been brought to bear upon these matters. Except in obscure cases of disease, or those peculiar cases where the conduct and appearance of tlie alleged unsound person present nothing unrea- sonable or unusual, we have the same means, — whether perfect or imperfect, — which have always been had, of forming an opinion without medical aid, and no better. The general stock of knowledge among unscientific men is now, as always, derived from common observation and experience, and, whether adequate or inadequate for all purposes, it certainly serves for most. This is especially true in regard to cases of natural decay from age or weakness. The appearances and effects of this decline are familiar to all mankind. And while it is well that new means of information may be attainable, the law does not gen- erally exclude any class of men from being witnesses because there may be found wiser men, or more acute and sagacious observers. Lord Sale remarks that " physic and salves were before licensed physicians and chirurgeons : " 1 Hale P. C. 429 ; and it is equally true that men were acquainted with the ordinary mani- festations of mental weakness and unsoundness, before they were included in the domain of science. By considering the manner in which questions of mental condition have been treated and in- vestigated in tlie various courts, we may be enabled to understand what course has been the result of long experience. The most common controversies, involving questions of mental condition, arose in criminal trials and prosecutions ; and it is per- haps significant that questions of evidence on this subject have rarely been reported until very recently, even in these. Had the tests of mental soundness been technical, and the inquiries to the witnesses been governed by peculiar rules, it cannot be doubted that the books would have preserved some trace of the practice. But enough appears incidentally to furnish sufficient light for our COMPETENT TESTIMONY. 77 guidance. By the rules of the crimhial law a person could not be held liable for criminal acts committed during mental unsound- ness, nor could any step whatever be taken against him during the incapacity, whether it existed at the time of the offence, or was brought on afterwards. We have accordingly inquiries made, not only upon trial, but also upon arraignment and after conviction, as well as the special inquisition made for purposes of guardian- ship. In the latter the condition of the person was to be determined by personal inspection, as well as by the testimony of witnesses ; while, upon appeal to the King in council, the personal examina- tion appears to have been chiefly relied on. Fitzh. Nat. Br. 232, 233 ■; 1 Hale P. C. 33. And personal examination and inspection has always been deemed of the utmost importance. A private ex- amination by the Chancellor has been of very frequent occurrence, and has often been entirely satisfactory. In all of these proceed- ings, while testimony is generally necessary, and in many cases scientific testimony is of the utmost value, yet the law has always regarded the subject as usually open to the common understand- ing, and capable of being judged by personal intercourse. In Ex parte Smith, 1 Swanst. 7, it is said that where the lunatic is unfit to appear before the jury, and they cannot all go to liim, one or two go and examine, and report to the rest his state and condition. And in the matter of Russel, 1 Barb. Ch. 38, tlie im- portance of having the jury see the alleged lunatic is declared in very strong terms, the Chancellor expressing a determination to require his production on pain of punishment to those neglecting it. Accordingly Lord Hale says, " If a lunatic be indicted of a capital crime, and this appears to the court, the witnesses to prove the fact may and must also he examined, whether the prisoner were under actual lunacy at the time the offence was committed." And the question whether a person was non compos mentis, so as to excuse him from trial, or from punishment on conviction, is rec- ognized as in the determination of the judge, although Hale rec- ommends an inquest in all doubtful cases ; and this is now the general practice in England. 1 Hale P. 0. 36. According to him the judge may even stop the trial, and discharge tlie petit jury, on discovering insanity ; but the more common practice has been to direct an acquittal. In the case of Regina v. Goode, 7 A. &, E. 536, where a prisoner was brought for arraignment into the 78 TESTAMENTARY CAPACITY. Queen's Bench before all the judges, and it was proposed to call a medical man before the jury of inquest to testify concerning his present state of mind, the court said it was unnecessary, and the jury were instructed to decide from what had taken place in their presence, and found him insane. In the celebrated case of Regina V. Oxford, 9 C. & P. 525, where the prisoner was indicted for a treasonable attempt to murder the Queen, his insanity was proved by his relatives and other unprofessional witnesses. The report says, "The most material evidence as to the prisoner was given by an inspector of police named Tedman, who saw him frequently for about eighteen months, during which he was barman." The opinion of this witness appears to have been given after showing the extent of his acquaintance, and without undertaking to describe the appearances on which he formed it ; for afterwards, upon " being asked upon what fact he founded his opinion that the prisoner was of unsound mind," he proceeded to give some details of his conduct. Several eminent medical men were also examined, and in reference to their testimony the court, through Lord Den- man, C. J., observed : "It may be that medical men may be more in the habit of observing cases of this kind than other persons ; and there may be cases in which medical testimony may be essential ; but I cannot agree with the notion that moral insanity can be better judged of by medical men than by others." Baron Alder- son and Mr. Justice Patteson were associated with Lord Benman on this trial. Tlie inquiries concerning the capacity and under- standing of the deaf and dumb are included by the autliorities within the same rule which governs as to capacity generally ; and in these cases medical testimony does not appear to have been deemed important. Rex v. Pritchard, 7 0. & P. 303 ; Rex v. Dyson, 7 0. & P. 305 ; Rex v. Thomas Jones, 1 Leach 0. 0. 102. No Englisli case has been found by us, which, in criminal pro- cedure, has required scientific evidence, to the exclusion of the tes- timony of ordinary witnesses acquainted with the accused. In the case of Freeman v. The People, 4 Denio, 9, where tliere was much controversy concerning the field which might be covered by the opinions of medical men, the opinions of ordinary .witnesses, of the sanity of the defendant, were received on behalf of the prosecution without any exception from the defendant, and the question does not seem to have excited any serious discussion in criminal cases. The same evidence whicii is proper in one common-law tribunal COMPETENT TESTIMONY. 79 before a jury, cannot be improper in another. The form of the questions is a distinct consideration, concerning which we may also derive light from the practice in criminal cases ; and to this reference will be made presently. The next class of cases requiring attention embraces those raising the question of testamentary capacity directly. That the English ecclesiastical courts allow witnesses of all kinds to testify to their opinions concerning persons whom they have seen and known, is not to be questioned. And the fact that these investi- gations are much more frequent there than elsewhere, is a reason why the results of their experience should be deemed of no small value. But, inasmuch as some authorities referred to on the argu- ment seem to intimate that those courts have introduced new and unsound rules of evidence, it may be proper to examine into the decisions and practice of other tribunals. But, at the same time, it must be remembered that we are now considering a case which was appealed from a probate court, whose practice is largely bor- rowed from that of the English ecclesiastical courts ; and it is not easy to perceive why testimony allowable in the lower court should be shut out on the hearing above. It has never been disputed that the subscribing witnesses may testify concerning the actual mental condition of the testator, as freely as medical witnesses who speak from personal acquaintance and investigation. The reasons given by those courts which con- fine such testimony to these witnesses are based upon the assump- tion that they are called in for the special purpose of scrutinizing tlie capa,city, as well as the acts, of the testator. It is matter of every-day experience that wills made in extremis must usually be witnessed by any persons who are conveniently to be found ; and it is not often that much care is taken to procure educated or pecu- liarly intelligent witnesses ; nor is their attention, in fact, very closely addressed to the question of capacity, beyond what would naturally be the case with any other observers present But, be this as it may, the rule assumes that any person of ordinary capac- ity may form a reliable opinion concerning tlie condition of another from simply witnessing the execution of a will, which is rarely drawn up or discussed in the presence of the attesting witnesses. It is little short of absurdity to hold that persons having equal or greater facilities, derived from personal acquaintance and long intercourse, are not as competent to form opinions as those who 80 TESTAMENTARY CAPACITT. are required to have no opportunity beyond one brief interview. The rule is also fallacious iu ignoring the fact that, in most cases of alleged fraud or imbecility, the procurement of a will involves a suspicion of malpractice, and that those relying upon a will im- properly obtained would have a most dangerous advantage given them by aifording their subscribing witnesses a degree of credit which, in many instances, would render any attack upon their statements useless. Referring, as befcrre, to the English practice outside of the eccle- siastical courts, we find the commonest examples of the investiga- tion of mental capacity in suits in chancery, brought to establisli or set aside wills and devises. In these cases it is quite common to have the testimony perpetuated ; and whenever there is any serious controversy, an issue of devisavit vel non is sent down for trial. The rule in chancery, requiring the examination of all tlie subscribing witnesses, is thus explained by Lord Oamden : " San- ity is the great fact the witness is to speak to when he comes to prove the attestation ; and that is the true reason why a will can never be proved as an exhibit viva voce in chancery, though a deed may ; for there must be liberty to cross-examine to this fact of sanity. From the same consideration, it is become the invariable practice of that court never to establish a will, unless all the wit- nesses are examined, because the heir has a right to proof of sanity from every one of them whom the statute has placed about his ancestor." Gresley's Eq. Ev. 123. And if no examination has been had as to sanity, the cause will be adjourned to have it taken. Ibid. The form of interrogatory calls directly for the conclusion of the witness, and is as follows : " Was the said testator, at the time of the execution of the said produced will or writing, of sound memory and understanding or not, as you know, or for any and what rea- son or reasons believe ? " Gresley's Eq. Ev. Appx. The form given in the Equity Draftsman is, whether the testator was " of sound and disposing mind, memory, and understanding, or liovv otherwise, as you for any and what reasons know or believe." In the case of Tatham v. Wright, 2 Russ. & M. 1, where upwards of sixty witnesses were examined in the court of chancery, and upon the trial of the issue in the court of law, some, quotations are given, showing what answers the witnesses were permitted to give, with the approval of the court. One of the attesting witnesses, after speaking of the weakness of John Marsden's, the testator's, COMPETENT TESTIMONY. 81 faculties, said, " that he was capable of making a plain, straightfor- ward will or codicil to a limited extent." On his cross-examination, he gave his opinion as to the incapacity of Marsden to transact business, manage property, &c., very fully, and also that he " had not the power to follow his own inclinations, or to act as he wished, without the restraint or control of the defendant, Wright, in mat- ters of consequence, and that he had not a will of his own in such matters ; thai he did not think John Marsden was capable of giving written instructions or directions for his will to Criles Bleasdale or to any other person, and that, in his opinion, John Marsden was not capable of comprehending, combining together, and judging accurately of the nature and consequences of any legal instrument creating a vari- ety of new rights and interests." Another witness said " Marsden was of sufficiently sound and disposing mind, memory, and under- standing, to make a plain and simple will or codicil, though not to make an intricate or complicated will or codicil." His cross-exami- nation corresponds almost exactly with that quoted from the other witness. Another phrase, quoted by Tindal, C J., from one of the defendant's witnesses, — not a subscribing witness, — is, " He was utterly incapable of managing and conducting bis own affairs, and of giving instructions for such a will as that in question, even divested of its technicalities." The Master of the Rolls, the Lord Chancellor Brougham, the Chief Baron of the Exchequer, Lord Lyndhurst, and Chief Justice Tindal, all received and acted upon this testimony, but sustained the will upon the whole case. The heir, who was held not bound by the decree, then brought eject- ment, and the questions raised upon the various trials were car- ried through all the courts, and finally settled in the House of Lords. Wright v. Doe d. Tatham, 1 A. & E. 3, 7 A. & E. 313, 4 Bing. N. C 489. It will be perceived by referring to these re- ports that the testimony concerning the capacity of the testator was introduced in the same way as in the chancery cause, and the witnesses gave the same kind of opinions. The controversy was thoroughly and sharply contested, but no question whatever was raised in any of the courts concerning the propriety of asking or receiving these opinions. The case finally went up on the admis- sibility of certain letters found opened among the testator's recep- tacles, addressed to him, but having no memoranda made by him, and not proved to have been answered or acted on. Letters answered seem to have been received in evidence. These unan- 6 82 TBSTAMENTAKY CAPACITY. swered letters were offered to show how he was treated by his friends, it being claimed that they were in the nature of res gestae, and such as would not have been written to a man lacking ordi- nary capacity. Lord Benman, and Coleridge and Littledale, JJ., concurred in rejecting them, admitting, however, that the slightest act of the testator connecting him with them would have made them admis- sible. Patteson and Williams, JJ., had been of counsel, and gave no opinion. In the Exchequer Chamber and in the House of Lords some of the judges thought them admissible as acts. A majority regarded them as merely equivalent to the statement of opinions which should be rejected, because not made under oath, nor under the test of cross-examination. The practice of receiving the opinions of witnesses upon capacity is fully recognized, and such evidence is stated by Alderson, B., to be not properly mere opin- ion, but a compendious way of reaching the fact of capacity which cannot otherwise be explained. And to the same purport is the remark of Parke, B. (who concurred with Alderson, B., and the majority in rejecting the letters), who says : " The question is not what the capacity of the testator was reputed to be, but what it really was in point of fact ; and though the opinion of a witness under oath as to that fact might be asked, it would only he a com- pendious mode of ascertaining the result of the actual observation of the witness from acts done as to the habits and demeanor of the deceased." In this case some of the judges say that if the ecclesi- astical courts admitted evidence of the manner in which a person was treated by others, independent of his own acts under that treatment, they disapproved the practice ; but it is not intimated by any one that, in regard to the question in controversy before us, there was any difference in the practice of any of the courts. We do not feel called upon to express any opinion upon the point decided in that suit. So far as tlie form of the question is concerned, it has been cus- tomary in all the courts to allow it in such a way as to test the capacity with reference, as near as may be, to the very act or kind of act in dispute. In Eex v. Pritchard and Rex v. Dyson, before cited, this appears very clearly, as it does also in the cases above referred to. See also Bagleton v. Kingston, 8 Ves. 439. In several of the criminal decisions the proper form of a question to be put to the medical witnesses has been discussed, and it was THE FORM OP GIVING TESTIMONY BY EXPERTS, ETC. 38 finally referred by the House of Lords to the judges, whether a form commonly used did not interfere with the prerogatives of the jury. That form was, whether from the testimony of the other wit- nesses, the act of the prisoner was an act of insanity. In Rex v. Wright, Russ. & Ry. 456, this question was allowed, and it is said several of the judges doubted its propriety. The witness was allowed to discuss the whole case upon the evidence of the rest. In Rex V. Ofiford, 5 0. & P. 168, which was tried subsequently, the evidence was received in that form. The case of Rex v. Wright was referred to in a note, but it does not appear whether the atten- tion of the court was called to it. In Regina v. Pate, 5 Warren's Works, 309, a physician, who said that/rom all he had heard that day, and from personal observation, he was satisfied the prisoner was of unsound mind, was rebuked by Alderson, B., for assuming the functions of the court and jury. In McNaghton's Case the physicians were allowed to give their conclusions from the evi- dence, one of them summing up the entire case by saying that the prisoner was insane and committed the offence while afflicted by a delusion under which he appeared to have been laboring for a con- siderable length of time. The result of McNaughton's acquittal was an inquiry by the House of Lords into the general subject of insanity, and, among other things, whether a medical witness, who never saw the prisoner, but was present at the trial and heard the testimony, could be asked his opinion of the state of the prisoner's mind at the commission of the offence, or whether he was con- scious of acting illegally or laboring under any delusion. The judges all agreed that the question was open to the objection that it allowed the witness to form his own conclusions from the testi- mony of others, whereas their credibility should be determined by the jury. But otherwise the question was not deemed objection- able, and they stated it would be proper where there was no dis- pute or difference among the witnesses. Maule, J., considered the question admissible according to the settled practice, although theoretically open to the objection named. Opinions of Judges, note to Regina v. Higginson, 1 C. & K. 129. In Bainbrigge v. Bain- brigge, Taylor's Med. Juris. 908, such a question was ruled out on the ground suggested, while in the later case of Duke of Man- chester V. Bennet, Taylor's Med. Juris. 901 , 908, it was held com- petent. Prom the best examination which it has been possible for us to 84 TESTAMENTARY CAPACITY. make of the English practice, we are satisfied that in all of the courts, civil and criminal, as well as in the ecclesiastical courts, the practice concerning proof of mental condition is the same, and permits all who have had means of observation to testify concern- ing the existence and measure of capacity with reference to the matter in controversy ; while it does not permit those who do not testify from personal observation to give a direct opinion of ca- pacity, except upon some given hypothesis. In every case the wit- nesses who speak from their own observation are expected to describe, as well as they can, what has led to their conclusions, as well as their means of observation. But the cases referred to show that, in many instances, the results of very limited observa- tion have been permitted ; the safeguard of cross-examination and a comparison of testimony being deemed sufiBcient to prevent any mischief from the imperfect knowledge of single witnesses. In the United States, the authorities all require the witness to state such facts as he can, in order that the jury may be better enabled to determine the value of his opinions, — stress being of course laid upon his opportunities of judging. In many cases the facts which can be described will be very significant to a jury, while there are many facts susceptible of a different interpretation, from which a jury could obtain no light whatever without the aid of the witness's judgment. The strongest indications of mental weakness or aberration often exist in expressions and appearances incapable of reproduction, even by an accomplished mimic, and yet decisive to any intelligent eye-witness. The great body of de- cisions in the United States adopt the English practice, and open the door to all testimony which can enlighten the jury from every kind of witnesses. And in regard to the kind of weakness alleged to have existed in the case of Mr. Beaubien, there has been a very general feeling that very little aid can be had from strictly scien- tific witnesses beyond that furnished by ordinary experience. The mere fact that a person is a physician does not of necessity qualify him to speak ex cathedra on this subject, especially when every one can assume the title with impunity. Men of real knowledge can always gain a respectful hearing on their own merits. The fact that in all important litigations the experts are found arrayed against each other, renders it necessary for the jury to determine which is right, and in doing this they must fall back upon their own knowledge of human nature. Judge Bedfield has referred to COMPETENT TESTIMONY. 85 this difficulty in the chapter on Senile Dementia. Am. Law Reg. for June, 1864, pp. 458, 459. See also Taylor's Med. Juris. 890, 891, 907, and Delafield v. Parish, 25 N. Y. 9. And where the witnesses speak from their own observation, the questions which may be put to one may be also properly put to another. The authorities in this country have passed directly upon points which in England have been settled by unbroken practice ; and we find, therefore, that here the admissibility of non-professional testi- mony has been discussed very fully.. The general doctrine is, that all witnesses speaking from observation must, as far as possible, state such facts as they can give as the basis of their opinion. This rule does not require them to describe what is not susceptible of description, nor to narrate facts enough to enable a jury to form an opinion from those alone. This would be impossible ; and if it could be done there would be no occasion for any opinion from the witnesses. It is a matter of daily experience that the opinion of an intelligent and familiar eye-witness is the only satisfactory means of ascertaining mental condition, or disposition, or expres- sion, or any other of those impalpable but important facts upon which men rest in dealing with each other. There is no substi- tute for personal observation. But if witnesses were not compel- lable to state such facts as are tangible, there would be no means of testing their truthfulness. When they state visible and intelligible appearances and acts, others who had the same means of observa- tion may contradict them, or show significant and explanatory facts in addition ; and if their story is fabricated, or if they de- scribe facts having a medical explanation, medical experts may detect falsehood in inconsistent symptoms, or determine how far the symptoms truly given have a scientific bearing. But from the nature of things, no rule can be laid down declaring what amount of acquaintance or what opportunities are necessary to enable an observer to be a witness. There are cases of insanity open to the slightest scrutiny, while others defy the keenest search. But no testimony can be of any real value unless it appears the wit- ness had adequate means and opportunities for forming some conclusion. The cases of Clary v. Clary, 2 Ired. 78; Clark v. State, 12 Ohio, 483 ; Potts v. House, 6 Geo. 324 ; Dunham's Appeal, 27 Conn. 192 ; Norris v. State, 16 Ala. 776, and Powell v. State, 25 Ala. 21, are so full and satisfactory in their reasoning upon the 86 TESTAMENTAET CAPACITT. admissibility of opinions from all witnesses speaking from personal knowledge, that nothing can be added to enforce them. To the same effect are Roberts v. Trawick, 13 Ala. 68 ; Watson v. Ander- son, 13 Ala. 202 ; Florey v. Florey, 24 Ala. 241 ; Wilkinson v. Moseley, 30 Ala. 562 ; Hughes v. Hughes, 31 Ala. 519 ; Doe v. Reagan, 5 Blackf. 217 ; Rogers v. Walker, 6 Barr, 371 ; Kinne V. Kinne, 9 Conn. 102 ; Grant v.- Thompson, 4 Conn. 203 ; Dicken V. Johnson, 7 Geo. 484 ; Brooke v. Townshend, 7 Gill, 10 ; Dor- sey V. Warfield, 7 Md. 65 ; Baldwin v. State, 12 Mo. 223 ; Lester V. Pittsford, 7 Vt. 158 ; Dewitt v. Barley, 17 N. Y. 340. Many other cases might be added, were it desirable to multiply cita- tions. The only remaining question is, in what form it is allowable to introduce evidence of capacity. It was objected on the hearing that a direct answer that a person is insane, or incapable of doing one thing or another, is not receivable, because usurping the office of the jury. The only authority relied upon is a statement in Judge Selden's opinion in Dewitt v. Barley, 17 N. Y. 340, that the decision of the same court in the same cause, in 9 N. Y. 371, was only binding upon that question, and not upon the general doctrine of the inadmissibility of opinions for any purpose. But while Judge Selden relies iipon this distinction to avoid a conflict with a reported case, he distinctly approves of the dissenting opin- ion of Judge Denio, which demonstrates the propriety of just such inquiries ; and the whole of his reasoning is aimed at overthrowing the position of the majority opinion on the former hearing. The opinion of Judge Denip in 9 N. Y. refers to numerous cases in which the inquiry was made and answered distinctly. And in Delafield v. Parish, Judge Selden quotes as quite conclusive the answers of some witnesses coming directly within the supposed objection. Mr. Lord says, in regard to the testator's condition at the date of the second codicil, " I had no doubt, and have not any, of his entire capacity to understand what he was doing, and the effect of it." The same witness speaks as to the testator's ca- pacity to make the third codicil : " In my judgment it was per- fect for the purpose of making a codicil of this hind ; he fully understood it, and fully agreed to it." And Dr. Taylor testified : " / had not myself the least douht of the soundness of his mind, nor could I have supposed that any intelligent person could doubt its soundness." P. 106. This is the testimony upon which Judge COMPETENT TESTIMONT. 87 Selden chiefly relied, and no suggestion is made by liim, or any one else, that it was not admissible. The objection to a witness assuming the functions of a jury did not escape the notice of the court, a majority of whom held that a " medical witness cannot be asked his general opinion (i. e., his conclusion from all the evi- dence) as to the state of the party's mind at the time of doing the act." P. 75. A majority of the court concurred in so much of Judge G-ould's opinion as commented on the attempt to introduce the opinions of medical men violating this rule. But no one held any of the opinions of the witnesses who spoke from their own observation to be incompetent, although there was a great deal of such testimony. They simply say of them that their value depends on how far they are sustained by facts. P. 38, 39. It cannot be said, after the decision in Delafield v. Parish, that such opinions are regarded by the Court of Appeals as infringing upon the prov- ince of the jury. Nor have we discovered any ruling elsewhere excluding opinions in that form, where they are received at all. Counsel for plaintiffs in error admitted on the hearing that the general practice was to receive them, and referred to several authorities to that effect. They might be multiplied almost in- definitely. Thus, in Hughes v. Huglies, 31 Ala. 519, the testi- mony was that " the testator was of sound and disposing mind and understanding." In Culver v. Haslam, 7 Barb. 314, " not capable of transacting business understandingly." In Weir v. Fitzgerald, 2 Bradf. 42, the question went to the capacity to make a will. In Mowry v. Silber, 2 Bradf 188, capacity to transact ordinary business. In Massachusetts, such witnesses as may give opinions, give them in the same way. Poole v. Rich- ardson, 3 Mass. 330 ; Buckminster v. Perry, 4 Mass. 593 ; Hathorn V. King, 8 Mass. 371 ; Dickinson v. Barber, 9 Mass. 225 ; Need- ham V. Ide, 5 Pick. 510 ; Commonwealth v. Rogers, 7 Met. 500. In this latter case, Shaw, C. J., explains the whole doctrine very clearly, and distinguishes between an opinion which the jury can estimate by the truthfulness and intelligence of the witness, and one which is based upon the witness's judgment of other testimony, which he might believe and the jury might disbelieve. He says there is no legal objection because the opinion covers the substan- tial facts of the case, — a thing which is done by direct testimony of facts in a majority of simple cases. To the same effect is Lun- ning V. The State, 1 Chandler, 178, 264. In Cook v. Castner, 9 88 TESTAMENTAET CAPA^CITY. Cush. 266, this subject is further elucidated by Chief Justice SJiaw. That case involved an inquiry into the condition of a vessel's tim- bers at a prior date, and whether decay was ascertainable on inspection ; and an expert was allowed to be asked whether, from his knowledge of the vessel, it would have been possible, fifteen months before, to take oif a piece of the thick streak, and replace it with new, without discovering the rot, such replacing having occurred. In Cottrill v. Myrick, 3 Pairf. 222, where a stream had been improved, a witness was allowed to testify from his knowledge of the habits of certain fish, whether they could have ascended the river in its natural state. In Willis v. Quimby, 11 Fost. 485, a witness, not an expert, was permitted to state that a horse could not have been sound at a certain time, because soon after a disease appeared in his feet, manifestly of long standing. In Malton v. Nesbit, 1 C. & P. 70, it was held that a nautical expert might tes- tify that a given state of facts would be negligence ; while in Sills V. Brown, 9 C. & P. 601, it was held such a witness could not be asked whether, /rom the evidence he had heard, there was such neghgence. And in Penwick v. Bell, 1 C. & K. 312, it was held that a nautical witness might be asked whether, " having heard the evidence, and admitting the facts as proved ly the plaintiff to he true, he was of opinion that a collision between the two ships could have been avoided by proper care on the part of the defend- ant's servants." These three cases illustrate very forcibly the true distinction as explained in the answers of the judges to the House of Lords, before referred to. We think that there can be no impropriety in allowing the opin- ions of the witnesses upon any measure of capacity which is calcu- lated to aid the jury in coming to a conclusion. What we loosely term opinions and impressions are declared by many of the author- ities to be no more nor less than statements of fact, differing, from ordinary statements only because of peculiarity of the subject. When a witness is asked what is the size or color of a certain object, or whether the evening is light or dark, clear or cloudy, the only difference between the impressions from which he speaks and those relied on in cases of capacity is, that they are less open to difference of opinion among observers. Evidence concerning per- sonal identity must always be matter of opinion, but it is always received in a positive form. So may be evidence of value, of hand- writing and the like, which are purely matters of opinion. When- ADMISSIBILITY OP OPINIONS PROM UNPROFESSIONAL WITNESSES. 89 ever the facts are such that the jury cannot form an unaided opinion, it is essential that the opinions which they receive should enlighten them upon the exact point in controversy, if possible, for otherwise their verdict will be conjectural. The course of decision upon this subject is so complete and uniform that we must accept it as the practice found safest by experience. Juries are not bound to accept opinions unless they consider them well founded, and we do not find in practice that they are often mis- led by the opinions of eye-witnesses who approve themselves sen- sible and candid. The questions objected to in the case before us come very far within the rule laid down. Capacity to understand an ordinary document, or to hold a continuous conversation, may certainly be inquired into as furnishing a means of informing the jury, as near as may be, of the extent of the testator's powers, physical and mental combined, as affecting his capacity to make the will pro- pounded. Unless such inquiries can be made, it is hard to con- ceive to what point questions could be directed, so as to give the jury any light whatever on the case. To exclude them would inevitably lead to compelling jurors to form their decision upon such descriptions of acts and appearances as the witnesses could give, and entirely shut out the opinions of any witnesses based on their own observation. We think there is no error in the rulings. IV. The Value of the Opinions of Unprofessional Witnesses IN Regard to Testamentary Capacity, and the Ground upon WHICH it is admissible. 1. Broohe v. Townshend, 7 GiU's Reports, 10, 27. 1848. How far unprofessional witnesses may express opinions upon sanity. An unpro- fessional witness, long familiarly acquainted with the testator, after giving an account of his conduct and appearance, may be asked his opinion of the tes- tator's capacity and state of mind. The answer to this question is not to be regarded as mere opinion, it is knowledge, derived by the witness from obser- yation and experience, and is but stating, in brief, the effect upon his own mind of the conduct and conversation of the testator. [It is more valuable than the testimony of experts unacquainted with the testator.] 90 TESTAMENTARY CAPACITY. Opinion of tlie court by — Martin, J. It appears from the fourth exception that the caveatees produced a witness who proved that he had been a neiglibor of the testator, and had known him well for twenty-five years ; that he had often had dealings with him, and would never, during his acquaintance with him, have hesitated to buy from him, or sell to him, land and negroes, for any amount that might have been agreed on between them. This evidence was admit- ted without objection. Tlie caveatees then offered to prove by the witness, that, in his opinion, based on the foregoing facts, and from his acquaintance with the testator, the testator was of sound and disposing mind, and capable of executing a valid deed or con- tract, during all the period of the witness's acquaintance with him. The court, on objection interposed by the caveators, refused to permit the witness to express his opinion with respect to the capacity of the testator. An exception was taken to this ruling of the court, and the counsel for the appellants have insisted that, after the witness had proved that he was for a series of years in the habit of frequent intercourse with the testator, in the way of business and in the interchange of friendly offices, he might be re- quired to express his opinion, based on such observation and facts, in relation to the capacity of the testator. The proposition advanced by the counsel for the appellants is unquestionably correct, and the court below erred, we think, in the opinion expressed by them in this exception. It is stated by the elementary writers upon this subject that the attesting witnesses are considered in the law as placed round the testator, to protect him against fraud in the execution of his will, and to judge of his capacity ; that the testator is intrusted to their care ; and it is their duty to inform themselves of his capacity, before they attest his will ; and it is on this ground that these witnesses are permitted to testify as to the opinions they formed of the testator's capacity at the time of executing his will. And it is equally true, as a general proposition, that the mere naked opinions of other persons, not occupying the position of medical men, are inadmissible in reference to the mental capacity of a testator whose will may be controverted. But the testimony proposed to be submitted by the caveatees to the jury, as illustrative of the mental condition of the testator, was ADMISSIBILITY OP OPINIONS FROM UNPROFESSIONAL WITNESSES. 91 not the mere naked, isolated, unsupported opinion of the witness. The impression made upon the mind of the witness by the conduct, manner, bearing, conversation, appearance, and acts of the testator in various business transactions, for a long series of years, is not mere opinion ; it is knowledge, and strictly analogous to the cases of personal identity and handwriting, which are constantly estab- lished in the law courts, by the opinion and judgment of persons who have enjoyed the opportunity of observing the person or handwriting sought to be identified or proved. Mr. Greenleaf, in his Treatise on Evidence, says : — " It is the constant practice to receive in evidence any witness's belief of the identity of a person ; or, that the handwriting in question is, or is not, the handwriting of a particular individual : provided he has any knowledge of the person or the handwriting." 1 Greenl. Ev. § 440. In the case of Clary v. Clary, 2 Iredell, Law, 87, the late Judge Graston, in delivering the opinion of the Supreme Court of North Carolina upon a subject similar to the one now under considera- tion, says : — " The judgment founded on actual observation of the capacity, disposition, character, temper, peculiarities of habit, form, features, or handwriting of others, is not mere opinion ; it approaches to knowledge, and is knowledge so far as the imperfection of human nature will permit knowledge of those things to be acquired ; and the result thus acquired should be communicated to the jury, be- cause they have not had the opportunities of personal observation, and because in no other way can they effectually have the benefit of the knowledge gained by the observation of others." In the case of Grant v. Thompson, 4 Conn. Rep. 203, the Supreme Court of Connecticut held, that though the mere opinions of wit- nesses relative to the sanity of a party are not admissible, yet their opinions in connection with the facts on which they are founded are admissible. The court said : — " The County Court rejected the mere opinions of witnesses rel- ative to the defendant's insanity, but admitted them in connection with the facts on which they were founded ; and in doing this they discriminated soundly and legally. This is not a novelty, but sanctioned by the usual practice of courts in such cases." They say : " Although it would be dangerous in its tendency to admit the uncorroborated opinion of a witness relative to the operations 92 TESTAMENTARY CAPACITY. of another's mind, yet, when it is found to be presumptively sup- ported by facts, it carries with it a convincing weight. The best testimony the nature of the case admits of ought to be adduced ; and on the subject of insanity it consists in tlie representation of facts, and of tlie impressions whicli they made." The same doctrine was maintained in a strong opinion delivered by Judge Duncan in Rambler v. Tyron, 7 Sergt. & Rawles' Eep. 92; and in Morse v. Crawford, 17 Verm. Rep. 502. The court declared " that the law was well settled, and especially in that State, that a witness may give his opinion in evidence in connec- tion with the facts upon which it is founded, and as derived from them, though he could not be allowed to give his opinion founded upon facts proved by other witnesses." So in Swinburn on Wills, 72, 2 Stark Ev. 1279, n., it is said : " It is not sufficient for a witness to depose that a testator was mad, or beside his wits, unless a sufficient cause can be given to prove this deposition : as that he saw him do such acts, or heard him speak such words, as a person having reason would not have done or spoken." Thus discriminating between mere abstract opinion and opinion predicated upon and fortified by facts within the personal observation of the witness. In the celebrated case of Wright v. Tatham, 5 Clark & Fin. 670, it was held by the House of Lords that letters written by third persons, since deceased, to a party whose will was disputed, and found among his papers, are not admissible evidence of his com- petency without some proof that he, himself, acted upon them ; but it will be found, by an examination of the elaborate opinions pronounced seriatim in this cause, that though the mere naked opinions of witnesses would not have been considered as admissi- ble with respect to the capacity of a testator, yet such opinions would become evidence in connection with the facts upon which they were founded. Upon this subject Alderson, Baron, said : " The object of-laying such testimony before the jury is to place the whole life and con- duct of the testator, if possible, before them, so that they may judge of his capacity ; for this purpose you call persons who have known him for years, who have seen him frequently, who have con- versed with him, or corresponded with him. " After having thus ascertained their means of knowledge, the question is generally put as to their opinion of his capacity. I ADMISSIBILITY OP OPINIONS PEOM UNPEOPESSIONAL WITNESSES. 93 conceive this question really means to involve an inquiry as to the effect of all the acts which the witnesses had seen the testator do for a long series of years, and the manner in which he was, during that period, treated by those with whom he was living in familiar intercourse. This is not properly opinion, like that of experts, but is rather a compendious mode of putting one instead of a multi- tude of questions to the witness under examination, as to the acts and conduct of the testator." We think, therefore, that the caveatees were entitled to the opinion of this witness, with respect to the capacity of the testa- tor, in connection with the facts upon which it was founded, and that the County Court were wrong in rejecting this testimony. This question does not appear to have been heretofore directly adjudicated by this court, although the implication from the opin- ion in the case of Brooke v. Berry, 2 Gill, 98, is, that evidence of this character would have been regarded as admissible. This case, with those which follow, taken together, present the questions under this head in the clearest aud most intelligible light, of any cases, perhaps, in the American reports. It has always seemed to us rather incomprehensible how any one could seriously urge the exclusion of the opinions of unprofessional witnesses, long acquainted with the testator, in regard to the state of his mind and consequent testamentary capacity, as being less reliable than that of an expert, who had never seen him. But that opinion, if it ever had much countenance by the profession or the courts, is fast losing it. It may be a long time before the course of the decisions throughout the country will reach the point of entire uniformity upon this question, but there has evidently been, of late, a consider- able approximation towards it. And the extreme difficulty of obtaining the desired, and sometimes expected, aid from professional experts, selected, as they now are, by the parties, and committed to a particular theory of the case, will lead the courts, constantly more and more, to fall back upon the unprofessional testimony. The great benefit of the testimony of those familiar with the tes- tator, above that of those wholly unacquainted with him, lies in the comparison of his present state, at the time of making the will, with his former state. And this is the great test of sanity in all cases. And this comparison can only be intel- ligibly made by witnesses who have had the opportunity of personal knowledge, and communicated to the court through the opinions of such witnesses. How unwise, then, to reject this, and attempt to supply it by resort to the speculations of experts upon the imperfect descriptions of others ! 2. Dunham's Appeal, 27 Connecticut Reports, 192, 197. 1858. The ground upon which unprofessional witnesses may give opinions. Where the witness has had opportunity for observing the conduct and conversation of the testator, for any time, longer or shorter, his opinion of his mental soundness 94 TESTAMENTARY CAPACITY. and capacity is matter of knowledge rather than of speculation and com- parison. But such a witness, professing no special experience or skill upon the subject, cannot be required to express his opinion upon a hypothetical case put to him by counsel upon cross-examination. How far partial insanity destroys testamentary capacity. Any extent of mental perversion, which does not involve the general structure of the mind, will not invalidate the will of such person, unless it is in some sense the offspring of or affected by such perversion. [The discussion of the learned judge presents the important questions involved in a very perspicuous and satisfactory light.] The opinion of the court by — Ellswobth, J. The next error complained of is, the refusal by the court to allow the question to be put to Mr. Nash on his cross- examination, whether, if the testatrix harbored feelings of hostility and aversion to her sisters and relations for a cause which did not exist, and she had no evidence that it ever did exist, and indulged in feelings of hostility towards them without any cause whatever, it would in his opinion be evidence of insanity. It was not claimed that Mr. Nash was an expert, or was called to testify as such ; nor at that time had there been proof introduced of the facts assumed in the question. Besides, the court did con- sent that the question, based upon any facts within the witness's knowledge, might be answered. The only ground upon which this question can be claimed to be proper is, that it goes to test the judgment of the witness as to what in his mind constitutes insanity ; for it is not and cannot be claimed that Mr. Nash, not being an expert, could be asked in chief for an opinion merely, on hypothetical facts. It is claimed that, as he had testified in chief for the appellees, " tliat he was well acquainted with the testatrix and had frequently done business with her, and knew the character of her mind, and that she was in his opinion of sound and disposing mind," the cross-question be- came proper. Some of the court have doubts if this cross-examination is not so within the discretion of the court, whether to allow or not the putting such : n hypothetical and complex question, as not to be the subject of error ; but be that as it may, we all think that the question should not have been allowed, at least not to any greater extent than it was allowed by the court. It is very true that Mr. Nash had expressed an opinion as to the sanity of the testatrix, but as the opinion of a non^expert it was ADMISSIBILITY OP OPINIONS PROM UNPROFESSIONAL WITNESSES. 95 not, as a mere opinion, admissible or important. We never allow the mere opinion of a witness to go to the jury if objected to, unless the witness is an expert and testifies as such, where the jury, from want of experience or observation, are unable to draw proper inferences from facts proved. But where a witness speaks from his personal knowledge, and, after stating the facts, adds his opinion upon them, or, in a certain class of cases, gives his opinion without detailing the facts on which it is founded, his testimony is received as founded not on his judgment, but on his knowledge. As, for instance, the case of personal identity, where the witness may say that he knows the man, and that the person whom he saw was that man, and he is not obliged, unless requested, to state liis height, size, age, complexion, gait, voice, and dress. So a witness may state that a certain road is or is not in repair, or that a cer- tain bridge is sound and safe or otherwise, or that a farm or horse is worth so mucli, without going into the particular facts on which he founds his opinion, these facts being known to him personally. He only states in such cases the result of his own observation and knowledge. Wherever the particulars are quite numerous, a witness is allowed to testify what he knows as the result of his observation of facts, and thus to testify to the general fact, rather than to recite every circumstance that conduces to that knowledge. This is a rule of convenience which must be applied on trials, unless they are to be indefinitely protracted'by a useless minuteness of inquiry. This rule has been very generally, in this country, applied to the case of insanity. It prevails in the ecclesiastical courts in England, but not in their courts of common law. It has always prevailed in this State. Every professional man knows that it has been again and again sanctioned in this and in all our courts. I do not remember a contested case of insanity, whether upon a will or deed, where the witnesses have not expressed their opinions as the result of facts within their own observation and knowledge. Grant v. Thompson, 4 Conn. 203 ; Comstock v. Had- lyne, 8 id. 265 ; Kinne v. Kinne, 9 id. 102 ; Porter v. Pequounoc Manufacturing Co., 17 id. 249. In Potts V. House, 6 Georgia, 324, this subject is discussed with very great learning and ability. The court held that the opinions of physicians in relation to the sanity of a testator are admissible, whether founded on facts coming within their own observation or as testified to by others ; and that subscribing witnesses to a will yb TESTAMENTARY CAPACITY. may give their opinion, as is done in all the English courts ; but that the mere opinions of witnesses, other than physicians aiid attesting witnesses, are not admissible unless accompanied with a statement of the facts on which they are founded ; and that such witnesses, after having stated the appearance, conduct, conversa- tion, or other particulars from which the state of the testators' mind may be inferred, may be allowed to express their opinion as the result of these facts, that is, as their own knowledge. Refer- ence is made to the case of Clary v. Clary, 2 Iredell Law E.. 78, where Judge Gaston, giving the opinion of the court, states the same doctrine, and cites many cases in support of it. He remarks that it is impossible for the witnesses to specify and detail to the jury all the minute circumstances by which their own judgment was determined, so as to enable the jury by inference from these facts to form their own opinion. It appears to me that the distinction here made is the true one applicable to this class of cases. The judgment of a witness, founded on actual observation of the capacity, disposition, temper, character, peculiarities of habit, form, features, or handwriting of others, is different from and more than a mere opinion of an expert. It approaches to knowledge, and in fact is knowledge, so far as the imperfection of human nature will permit knowledge of these things to be acquired, and such knowledge is proper evidence for the jury. In Gibson v. Gibson, 9 Yerg. 330, the court decide tliat attest- ing witnesses, and they only except experts, are permitted to give their opinion merely and without cause or reason assigned, of the testator's state of mind ; and that the opinions of otiier witnesses who are not experts are not evidence unless accompanied with a statement of facts within their own observation, and where the opinion is the result of such observation. This was likewise held in the case of Vanauken, an alleged lunatic. 2 Stock., Ch. R. 190. In Rambler v. Tyron, 7 Serg. & R. 92, the same doctrine is held in a case exceedingly resembling the present. The witness had testified in chief, as here, to the capacity of the testator in his opinion, founded upon his knowledge and observation of his conduct, conversation, &c. On the cross-examination he was asked what his opinion would be on a different state of facts. The court decided that the question was an ensnaring one, to which the witness might justly have excepted, and that it was improper ; that a witness must draw his opinion from facts within his own EFFECT OF PARTIAL INSANITY. 97 knowledge and observation, and not from the knowledge and observation of others, — that the witness was not bound to give an opinion on an assumed state of facts or facts sworn to by other witnesses, the reason given being that opinion is not evidence without the facts on which it rests. To give such latitude sis is claimed to a cross-examination, the court say would be trying a cause not by the evidence of facts and opinions formed by the witness from his own observation and knowledge, but upon hypoth- eses and facts stated by others, unknown to the witness. We presume that the appellants' counsel would not have claimed the testimony had it been called for in chief. But it is claimed that it might be put on cross-examination for the purpose of test- ing the judgment of the witness. We think, however, that this makes no difference. It certainly was not so regarded in the last case cited ; and we think it ought not to on principle. The mere opinion, without knowledge, of a non-expert, is opinion still. It is an inference from hypothetical facts formed by a person who avow- edly has no qualification or legal competency to form an opinion. In the nature of the case it must be so. 3. We come next to the most interesting and the main question in the cause, the law in relation to the subject of insanity. The appellants' counsel requested the court to lay down three distinct propositions on this point. Two of these, the second and third as stated in the motion, were laid down substantially as requested by the appellants, and so far they of course cannot complain. We proceed at once, then, to consider the correctness of the first prop- osition. As we understand this proposition, the principle of law which it assumes is, that a delusion harbored in the mind on any subject makes the mind so unsound generally, that, as a matter of law, a will made during its existence is void as the act of an insane man ; or, in other words, that a delusion on any single topic is, as matter of legal inference, absolute insanity, sufficient to vacate a will or contract ; and by parity of reason it would seem, affording immunity in the case of crime, unless, indeed, as is laid down in some of the books, more understanding is required in the case of wills and contracts than in the case of crimes. Now, on the trite subject of insane delusion, so much has been said and written by the learned, — so many discordant views and theories advocated by medical and other writers, and even these 7 98 TESTAMENTAET CAPACITY. sometimes stretched and distorted to save life or defeat a hard will, — that we scarcely dare say what is the true rule of law on the subject. The particular physical theory, too, of the human mind adopted by some persons very greatly influences their views about insanity ; as, for instance, the phrenologists, who maintain that the mind is not a unit, and that it often is diseased and enfeebled in some of its faculties or organs of manifestation while it is sound and healthy in others, and as to these sound faculties is properly chargeable with responsibility for their exercise while it is not as to the others. Some of the distinctions made, I must think, do not furnish cer- tain and satisfactory rules for the government of courts and juries in the administration of either the civil or criminal law. After having examined and somewhat thoroughly read the treatises and reported cases brought to our notice on the trial, and reflected upon facts that have fallen under my own observation during forty years spent at the bar and on the bench in numerous trials in our courts, I am convinced that the question of a man's ability to make a contract or will, or of his legal responsibility for his actions, is best determined by calling the attention of the court and jury to two plain questions of common sense : 1st. What degree of mental capacity is essential in such cases ? which is a question of law ; and 2d. Does that capacity exist in the case in hand ? which is a question of fact. Refinements and speculations beyond this can avail very little in my judgment; and to indulge in them will confuse more than enlighten the minds of the jury ; and, after all, it will come to these questions, whatever technical rule may be laid down by the court. What better rule, what more simple or easy of application, can be devised than these ? especially as it respects the jury, who are not necessarily learned men, nor familiar with the refinements of phrenological or physiological science, or with the pathology of mental disease. All the books agree that a person has capacity to make a contract if he be of mature age, and can understand the nature of the contract and the efiect of the language used to ex- press his intention ; and certainly the fact whether there be or not sach a capacity must be judged of by scanning the daily conversa- tion and conduct of the individual in matters of a like nature, and not by inquiring if in some particular thing, in no way relating to property or contracts, he fancies something which does not exist, EFFECT OP PARTIAL INSANITY. 99 and of which he has no reasonable evidence. The fact of such de- lusion may well go to the jury for what it is worth upon the gen- eral question of unsoundness of mind, but it is not absolute and universal unsoundness. To hold it such would be unendurable, and at variance with the doctrine practically recognized in all courts, and with the good sense of all mankind. Were we to de- cide that men cannot make contracts, nor dispose of their estates, however sensible and shrewd, because they fancy some things to exist which do not, and of which they have no reasonable evidence, at least so far as other persons can perceive, our courts would ere long present the spectacle of a plentiful harvest to the profession, or the affairs of society must be arrested from uncertainty and fear. What would be the condition of those who happened to have dealings with a jealous husband, a suspicious neighbor, an infatu- ated lover, a deceived and half crazed demagogue, a Hindoo wor- shipping an idol, a sincere and enthusiastic but deluded follower of Mahomet, or a modern spiritualist with his " harmonial phil- osophy " and " aerial spheres " ? Are these men to be read out of society as insane on all subjects, and rendered powerless to pro- vide for themselves and their families ? Lord Hale had full belief in the existence of witches, while he presided with distinguished ability in the highest court in Eng- land. Dr. Johnson was confident that he heard the voice of his deceased mother calling his name. Lord Castlereagh, a short time before his solemn death, gave a narration of a supposed apparition, which he firmly believed, and which deeply affected him. Lord Herbert believed that a divine vision had indicated to hiip the cor- rectness of a particular course of religious speculations, which, on the faith of the supposed vision, he published, and which he made the basis of his future action. The second Lord Littleton was equally persuaded that a divine warning had admonished him of his approaching death. The same was true of the Earl of Chester- field. Abercrombie gives an instance of an habitual hallucination, which at the same time was consistent with reason. Now we say these things did not, in the individual cases, constitute what we understand by the term " insanity," nor, of course, general unsound- ness of mind, though such facts may be evidence tending to prove insanity, and, taken with other facts of a more marked character, may satisfy a jury that a man has not mind enough to make a valid will and testament. The proper inquiry in such cases is, 100 TESTAMENTARY CAPACITY. has the testator mind enough to know and appreciate his relations to the natural objects of his bounty, and the character and effect of the dispositions of his will. If he has, then he has a sound and disposing mind and memory, although his mind may not be entirely unimpaired. In Kinne v. Kinne, supra, this court held that the real question was, whether the testator had an understanding of the nature of the business he was engaged in, a recollection of the property he meant to dispose of, and of the persons to whom he meant to con- vey it, and of the manner in which he meant to distribute it among them. Judge Williams there says : " The mistake has arisen from the fact that if the testator was not in a condition which would justify his transacting all kinds of business, it has been supposed he could not do this." So in Comstock v. Had- lyme, 8 Conn. 265, the question for the jury was, whether the devisor had a sound and disposing mind ; and the court 'gave the rule above stated. In Stevens v. "Vancleve, 4 Wash. C. 0. R. 262, Washington, J., says : " The testator may not have sufficient strength of mind and vigor of intellect to make and digest all the parts of a contract, and yet be competent to direct the distribution of his property by will. The question resolves itself into this, Were his mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged?" The same rule is laid down in Rambler v. Tryon, 7 Serg. & R. 95, Hawthorn v. King, 8 Mass. 371, Lowe v. Williamson, 1 Green Ch. 82, Stewart v. Lispenard, 26 Wend. 255, and Potts v. House, supra. See also 1 Jarman on Wills, 29, and the numerous cases referred to in the notes. We will not dwell longer on this part of the case, and should not have said so much as we have had we not felt that the notion that a single delusion is general insanity, and that the jury are to be so instructed, irrespective of the degree or intensity of it, is no- where countenanced in this country, and not until lately in Eng- land. The rule in England was for a long time the same as the one above laid down, and is most elaborately argued by Nicholls, J., in the Prerogative Court in Dew v. Clark, 3 Addams' Eccl. R. 79. There the question was, whether the testator's delusion as to his daughter was sufficient to set aside a will disinheriting her. It EFFECT OF PARTIAL INSANITY. 101 was held that it was. But no such point was decided as is made here, that a delusion on any other subject was a general unsound- ness of mind, much less absolute insanity, as matter of law. This notion being alluded to, the court say : " It has been repeatedly said by the counsel for the residuary legatees, that this partial in- sanity is a something unknown to the law of England. Now if it be meant by this that the law of England never deems a person both sane and insane at the same time upon one and the same subject, the assertion is a mere truism. But if by that position it be meant and intended thiit the law of England never deems a party both sane and insane at different times upon the same subject, and both sane and insane at the same time on different subjects, there can scarcely be a position more destitute of legal foundation, or rather there can scarcely be one more adverse to the current of legal authority." The learned judge sustained himself by the authority of Locke, who says : " A man who is very sober and of a right understanding in all other things, may in one particular be as frantic as any man in Bedlam ; " and of Lord Hale, who says : " There is a partial insanity of mind, and a total insanity ; in the first as it respects particular things or persons, or in respect of degrees, which is the condition with very many, especially melan- choly persons, who for the most part discover their defect in exces- sive fears and grief, and yet are not wholly destitute of the use of reason." This question came up again in the Privy Council, in Waring v. Waring, 6 Moore, P. 0. C. 349, where, in the opinion delivered by Lord Brougham, it would seem as if all distinction between partial and total insanity is denied. Perhaps such is now the law of England, but in a very late treatise, written with much ability by Wharton and Stille (Med. Juris. 27, 28, 32), this is held to be an innovation, and is reviewed and disappi-oved of, as leading to absurd and dangerous consequences. Besides, if the law be taken to be as laid down in Waring v. Waring, this will not sustain the broad claim of the appellants in this case, that any delusion harbored in the mind, on any subject however foreign, is^er se and as matter of law absolute and uni- versal unsoundness of mind. And further, it may be important to remember that in the ecclesiastical courts in England there is no jury trial, but the fact and the law go together to the court, and a nice distinction between them on such a question as that of insanity 102 TESTAMENTAET CAPACITY. is not necessary, nor is tie court required to settle any narrow and abstract rule on the Subject. There, all the evidence is with the court, and the court can decide whether there is a general or partial insanity, and if the latter, whether it is so great or so extensive in its relations as to aifect substantially the entire under- standing. We can well see that while the court would not be embarrassed on the whole evidence, a jury who are to receive a technical rule from the court, as was here asked, might be unable to render a verdict according to their own convictions of the real fact. They might find that the person said to be under a delusion was abundantly competent to dispose of his estate, and feel that it would be absurd and unjust to render a verdict of insanity, while yet such a rule of law as is claimed by the appellants would, if laid down by the court,' require them to do so. But even this would not appear quite so absurd in England as here, for there proceed- ings are instituted to try the specific question of the insanity under a commission of lunacy. It seems to be admitted that the rule does not" apply in criminal trials. Monomania, or partial insanity, is recognized in criminal law, and its effect in relation to criminal responsibility tolerably well settled, and we find that such insanity has often been success- fully set up in defence of the accused. In submitting such cases, the judge always instructs the jury that they must inquire into the condition of the prisoner's mind at the time of the act, on the par- ticular subject to which the crime relates, and though the language used by the different judges is somewhat variant, it is the same in effect. They all agree that the question is, whether the person accused had, at the time of the act, sufl&cient understanding to know the nature and effect of the act for which he is put on trial, and that it was a violation of law, exposing him to punishment. If so, they say that he may be found guilty. I will cite only two cases to this point, both of which are deserv- edly of the highest authority. The first is that of Commonwealth V. Eogers, 7 Met. 500, where the learned Chief Justice Shaw says : " On the contrary, although the prisoner may be laboring under partial insanity, if he still understands the nature and character of his act and its consequences ; if he has a knowledge that it is wrong and criminal, and a mental power sufficient to apply that knowledge to his own case, and to know that if he does the act he will do wrong and receive punishment, — such partial insanity is EFFECT OF PAETIAL INSANITY. 103 not sufficient to exempt him from responsibility for criminal acts." The other case is that of Daniel M'Naughton, in the House of Lords, 47 E. C. L. 129, 10 CI. & Fin. 200, where the opinion of the judges was asked upon the following questions : " 1st. What are the proper questions to be submitted to the jury when a person alleged to be afflicted with insane delusion respecting one or more particular sub- jects or persons is charged with the commission of a crime (murder, for example), and insanity is set up as a defence ? 2d. In what terms ought the question to be left to the jury as to the prisoner's state of mind at the time ? 3d. If a person under an insane delu- sion as to existing facts commits an offence in consequence thereof, is he thereby excused ? " The answers to these questions are full and explicit to the effect that in the opinion of the judges there is a clear distinction be- tween total and partial insanity, and of course a corresponding difference in the accountability of the offender. They say that if the accused was at the time of the act conscious that the act was one which he ought not to do, and was contrary to the law of the land, or if he had a sufficient degree of reason to know the nature and consequences of his act, he would be a proper subject of pun- ishment, even to the total loss of liberty or life. Why ought not the same rule to be applied in civil causes ? Is life or liberty less important than property or civil rights ? If a person possesses reason enough to be held accountable for his criminal acts, he may, it appears to me, have enough to obligate himself by contract, and make a good and valid disposition of his estate. The reasoning of Dr. Ray on this subject, in his late and able treatise on insanity, p. 16, is most worthy of attention. " The language of the law virtually addressed to the insane man is, your reason is too much impaired to manage your property ; you are unable to distinguish between those measures which would con- duce to your profit and such as would end in your ruin, and therefore it is wisely taken from your control ; but if, under the influence of one of these insane delusions that has rendered this step necessary, you should kill your neighbor or steal his property, you will be supposed to have acted under the guidance of a sound reason, and will be tried, convicted, and executed, it may be, like any common criminal whose understanding has never been touched by madness. As for any physiological or psychological ground for this distinction between the legal consequences of the civil and 104 TESTAMENTARY CAPACITY. criminal a6ts of an insane person, it is in vain to look for it. That the mind when meditating a great crime is less under the influ- ence of disease and enjoys a more sound and vigorous exercise of its powers than when making a contract or a will, few will be hardy enough to affirm, and yet the practice of the law virtually admits it. The difference, if there be any, would seem to be all the other way. In the disposal of property the mind is engaged in what has often exercised its thoughts, the conditions and consequences of the transaction require no great mental exertion to be compre- hended, and there may be nothing in it to deprive the mind of all the calmness and rationality of which it is capable. Now criminal acts, though abstractly wrong, may, under certain circumstances, become right and meritorious ; and if the strongest and acutest minds have sometimes been perplexed on this point, what shall we say of the crazy and distracted perceptions of him whose reason shares a divided empire with the propensities and passions." On the trial of this cause there was very little if any evidence, and little or nothing said as to any delusion in the mind of the testatrix except on the subject of her property and the right of her sisters as her natural heirs to receive it at her death. Now, as to the effect of this supposed delusion, we think the court went quite far enough in the charge. The court said, " If the testatrix, at the time of executing the will, harbored an unnatural, unreasonable antipathy towards her sisters, or either of them, and that antipathy was the result of a morbid delusion as to the character and con- duct of these sisters, the will is void, although she may have been sane in all other respects." The jury have therefore found that the testatrix was laboring under no delusion at all, which ought, it would seem, to put an end to the case so far as the question of insanity is concerned, and this being so, it is not easy to see of what benefit a new trial will be to the appellants beyond the chance of another verdict, which of course constitutes no reason with us for granting a new trial. But our decision is not affected by this view of the case. We hold that the legal proposi- tion expressed in the first request to the court is not a sound one, and does not state the true principle of the law of insanity. OPINIONS BY UNPROFESSIONAL WITNESSES. 105 3. Clapp V. FuUerton, 34 New York Reports, 190, 194. 1866. The opinions of unprofessional witnesses are admissible to the extent of charac- terizing the acts and declarations to which they testify, as being done or made by the testator, as having been, or appearing to them to have been, either rational or irrational. But they are not allowed to express an opinion upon the general question how far the testator was, in fact, rational or not at the time of executing the will, or at any other particular time. As in appeals from probate, tried before the surrogate's court, the Supreme Court sits as a court of equity, its judgment will not be reversed on the ground of the admission of incompetent evidence, where the Court of Appeals can see clearly that such evidence had no important bearing in the decision of the case, and that other evidence was given fully justifying the judgment. The fact that the testator believed one of his daughters was illegitimate, upon slight and unsatisfactory evidence operating upon a sensitive and ill-balanced mind, provided there was no insane delusion controlling his mind, will not avoid the will. Discussion of the difference between prejudice and suspicion, and insane delusion. Opinion of the court by — Porter, J. The surrogate seems to have assumed that non- professional witnesses who did not attest the execution of the will were competent to express an opinion on the general question of testamentary capacity. Wlien a layman is examined as to facts within his own knowledge and observation tending to show the soundness or unsoundness of the testator's mind, he may charac- terize as rational or irrational the acts and declarations to which he testifies. It is legitimate to give them such additional weight as may be derived from the conviction tlaey produced at tlie time. The party calling him may require it to fortify the force of the facts, and the adverse party may demand it as a mode of probing the truth and good faith of the narration. But to render his opin- ion admissible even to this extent, it must be limited to his con- clusions from the specific facts he discloses. His position is that of an observer and not of a professional expert. He may testify to the impression produced by what he witnessed ; but he is not legally competent to express an opinion on the general question, whether the mind of the testator was sound or unsound. An exception to this rule is recognized in the case of attesting witnesses. They are present at the very act of execution, and 106 TESTAMENTARY CAPACITY. their opinions on the general question of testamentary capacity are admitted ex necessitate. It is the policy of the law to provide all possible safeguards for the protection of the heir as well as the testator. No light is excluded in reference to the res gesta, which can be furnished by the immediate actors. The subscribing wit- nesses may be required to state not only such facts as they remem- ber, but their own convictions as to the testator's capacity, for it may well happen that on so vital a point they may retain a clear recollection of the general result long after the particular cir- cumstances are effaced by lapse of time or obscured by failing memory. In the present case the attesting witnesses were not called upon to express their judgment ; but others not qualified to speak as experts were permitted to testify generally that, in their opinion, the testator was of sound mind. That this ruling was wrong is shown with great clearness and force in the opinion delivered by Judge Bockes at the general term. If the error had occurred on the trial of an ordinary action at law, it would have called for a reversal of the judgment, in accordance with the rule on this subject, as heretofore limited and defined by the successive deci- sions in the case of De "Witt v. Early, 5 Seld. 371, 17 N. Y. 340, 347. The court below was right, however, in holding that the error was not fatal, if it be apparent, upon the whole case, irrespective of the evidence improperly admitted, that the testator was clearly competent, and that the will was properly admitted to probate. On appeals from the decrees of surrogates, the Supreme Court succeeds to the jurisdiction and authority of the old Court of Chancery. The review is in the nature of a rehearing in equity ; and the admission of improper evidence on the original hearing furnishes no ground for reversing the final decision if the facts established by legal and competent testimony are plainly sufiicient to uphold it. Schenck v. Dart, 22 N. Y. 420, 421. In this case the proof is clear that the statutory forms were observed in the execution of the will, and that the testator had sufficient intelligence to understand the nature and effect of its provisions. The vigor of his mental faculties was impaired, but not to such an extent as to disable him from making a testamen- tary disposition of his property. He retained a clear recollection of the provisions of his previous will ; and his determination to WHAT AMOUNTS TO INSANE DELUSION. 107 change tliem was thoughtful and deliberate, whether the motives that induced it were rational or irrational. The case bears no analogy to that of a testator who contributes nothing to his will but a series of nods and a cross, or a signature traced by a guid- ing hand stronger and steadier than his own. Before he directed the preparation of the instrument he had avowed his intention to inake Mrs. Clapp his principal legatee. He assigned as a reason for the alteration the change which had recently occurred in the relative pecuniary circumstances of his elder and younger daughter. He went a considerable distance on foot and alone to procure the previous will, which he had deposited at the house of a friend. He intrusted an intelligent professional gentleman with the preparation of a new will, and personally gave him the instructions from which it was drawn. It was subse- quently executed in the presence of the draftsman and the sub- scribing witnesses, and in the absence of the principal beneficiary. He wrote his own signature, requested the witnesses to attest it, and declared the instrument to be his last will. He subsequently communicated to others the fact of its execution and the motives which induced him to give the bulk of his property to the pro- ponent. In view of these undisputed facts, the opinions of non- professional witnesses on the general question of testamentary capacity could have no possible weight, and all such testimony should be disregarded as needless to the proponent and harm- less to the contestant. It was also insisted that, aside from the issue of imbecility, the testator was disqualified by lunacy. This claim rested on the assumption that during the last year of his life he was laboring under an insane delusion as to the legitimacy of his elder daugliter. To sustain the allegation it is not sufiicient to show that his sus- picion in this respect was not well founded. It is quite apparent from the evidence that his distrust of the fidelity of his wife was really groundless and unjust ; but it does not follow that his doubts evince a condition of lunacy. The right of a testator to dispose of his estate depends neither on the justice of his preju- dices nor the soundness of his reasoning. He may do wliat he will with his own ; and if there be no defect of testamentary ca- pacity, and no undue influence or fraud, the law gives effect to his will, though its provisions are unreasonable and unjust. In determining the question whether his impression in regard 108 TESTAMENTARY CAPACITY. to his wife was due to insane delusion, attention must be given to the circumstances in wliich it originated, and to his physical and mental condition at the time it obtained lodgment in his mind. She died at the age of twenty-six, when he was thirty years old. He married again after an interval of twenty years. He had no children by the second wife, and was grievously disappointed at her death by a bequest of a portion of her property to her rela- tives. Some three years before her decease he sold his house to Clapp, and from that time until his death he was a boarder in the proponent's family. He was uneasy and discontented, seeking some opportunity to find a more agreeable home, charging his daughter with irreverence and neglect, and her husband with cupidity and fraud. He was overtaken by disease, and became irritable and infirm. He was strongly attached to his elder daughter in Ohio, and in his first will, made some two years before his death, he gave to her the greater portion of his property. After the execution of this will his infirmities increased. He be- came nervous and querulous, and was easily moved to tears. He was conscious of the decay of his faculties and apprehensive of the approach of death. His memory became unretentive of recent occurrences, and, as usually happens in such cases, his mind was constantly recurring to the incidents of early life. It is one of the compensations of age that, when current events cease to imprint themselves upon the memory, those of former years are often re- produced with the freshness of first impression, and become the leading topics of reflection and conversation. The testator, in view of his own approaching end, very naturally recurred to the circumstances attending the death of his first wife, which had been the most marked event in his own family history. He. unfortunately recalled a declaration made by her on her death- bed, that the contestant, though born in wedlock, was not his daughter. He knew that it was uttered in the delirium of a fatal disease of the brain, but he permitted it to be a source of uneasi- ness and disquietude, until it made an impression on his mind in his then feeble and morbid condition which it had not produced when the incident occurred. He connected it with the circum- stances of his occasional absence from home during the first year of his married life, of her light-hearted youth and gayety, and of suspicions which had fallen upon some who had been early asso- ciates of the family ; and he was thus led to apprehend that her EEEOE IN FACT NOT INSANE DELUSION. 109 statement, though made when she was delirious, was more signifi- cant than he had deemed it at the time. He admitted that he had attached no importance to the declaration when it was made, and expressed his surprise that it had not impressed him more deeply. He spoke of it, however, only to his nearest relatives, and evi- dently appreciated the embarrassment and delicacy of alluding to it at all. He continued to refer to Mrs. PuUerton in terms of kindness and affection, acknowledged that he did not and could not know that she was not legitimate, and declared that he should always continue to claim and treat her as his daughter. It is manifest that his original judgment was right. He dismissed the delirious expression of his wife as of no moment when all the cir- cumstances were fresh and his mind healthy and vigorous ; but when his affection for her had waned with the lapse of time, and he was no longer able to recall the grounds of his former confi- dence in her fidelity, the recollection of the incident produced undue impression on a mind enfeebled by age and disease. The fact should be referred to weakness and credulity rather than to insane delusion. The repose of families has often been disturbed on grounds as slight and trivial as those which misled the testator. It is evident that he did not arrive at a clear and settled convic- tion that he had been wronged in the conjugal relation ; but he was brought to a condition of doubt, suspense, and uncertainty, which not only saddened the last year of his life, but entailed un- merited reproach on the names of his wife" and eldest daughter, and doubtless cooperated with other causes in changing the direc- tion of the inheritance. The allegation of undue influence rests mainly on inferences to be deduced from facts which are proved only by the declarations of the testator. These are too vague and indeterminate in their nature to lead to a clear and satisfactory conclusion. The mind is involuntarily predisposed against the will by its apparent inequality and injustice. Many of the circumstances surrounding 'the trans- action cloud it with grave suspicion. The strong probability is, that the testator's false impression in regard to his wife received encouragement from those who should have been the first to dis- abuse him of his error. It appears from the testimony of his sister, Mrs. Wilson, that even after his death the proponent affected to credit the scandalous imputation, though it would seem from the nature of the case that the only absolute assur- 110 TESTAMENTARY CAPACITY. ance she could have, either of her own or her sister's legitimacy, was the purity of the mother whose honor she seemed ready to impugn. We do not think the proof of undue influence rises to a degree of strength which would justify the rejection of the will. There was probable cause for contesting the validity of the instru- ment ; and, while we think the judgment should be affirmed, it should be with directions that the costs of both parties be paid from the estate. 4. Stackhouse v. Horton, 15 New Jersey Chancery Reports, 202. 1854. Opinion of witnesses. The abstract opinion of any witness, medical or of any- other profession, is not of any importance, as evidence. It must be brought to the test of the facts upon which it is founded, and its weight thus determined by the court. It is not a mere unsoundness of mind, or a memory impaired, that constitute that mental incapacity which will deny testamentary capability. If the prejudice of a testator, in regard to any of the natural objects of his bounty, amount to nothing more than misconception or misjudgment, and involve no insane delusion, which is entirely outside the domain of reason and judgment, it will not defeat the testamentary act. Where there are not only some plausible grounds for the opinions entertained by the testator, but much reason to doubt whether they are not entirely just and sound, it would be absurd to pronounce them insane delusions, however much professional witnesses may so characterize them. Influence to become so undue as to defeat a will induced by it " must amount to fraud. Nothing less can vitiate the instrument." One friend has the right, when asked to do so, to advise another, in regard to her will, " and it is not to be presumed that he deceived her, or took an undue advantage of his friendly position." The opinion of the court was delivered by — Hon. Hekry W. Green, Chancellor and Ordinary. The decedent, Esther Horton, died in February, 1852. She was upwards of seventy years of age. She had been feeble in bodily health for seven or eight years prior to her decease. During the last four months of her life her decline was rapid. Her disease was an affection of the lungs. It finally assumed the shape of consumption, of which she died. For the last three years of her life she was deprived of her sight, — most of that period totally blind. Silas Horton, her husband, died in December, 1842. There was no issue of their marriage. It nowhere appears, in the voluminous testimony taken, what rela- STATEMENT OP PACTS. Ill tives Silas Horton left at his decease. The numerous individuals by the name of Horton, mentioned in the paper offered for pro- bate, and others by that name connected by the evidence with this case, are the blood-relations of Esther Horton. Whether they were of any relationship to Silas Horton, deceased, does not ap- pear. Silas Horton died seised of a large real and personal estate. His personal property was inventoried at nearly twenty-nine thou- sand dollars. Of this his widow received, by his will, about six- teen thousand dollars, and the real estate devised to her is valued at upwards of ten thousand dollars. She died seised of the same real estate devised to her by her husband, and the personal prop- erty, which she received under the will of her husband, accumu- lated in her hands, so that the amount, at the time of her death, exceeded twenty-one thousand dollars. The disposition made by her of this real and personal property, by the paper writing pro- pounded for probate, is the origin of the present controversy. Esther Horton left a paper writing, bearing date the 13th day of January, 1852, purporting to be her last will and testament, and it was offered for probate in the surrogate's office of the county of Morris, by Jacob H. Crammer and William Logan, named therein as executors. Pour caveats were filed, — one by Silas Horton, who is a nephew of the decedent, but not one of her next of kin, his father, Aaron Horton, being alive ; Aaron Horton, a brother of decedent ; Susan McCollum, a sister ; and Curtis Coe, a nephew, and one of the next of kin, each filed a caveat. After a protracted investigation before five judges of the Or- phans' Court of the county of Morris, that court (two of the judges dissenting) adjudged and decreed that the instrument offered for probate is not the last will and testament of the said Esther Hor- ton, deceased, and probate thereof was denied by the court. The court did further order that the costs of both parties to the litiga- tion before them should be paid out by the estate. The court taxed the costs for the services of the judges at two dollars a day each, making $690 ; for the counsel of the will, |1,250 ; and for the counsel of the caveators, $1,250. The surrogate's fees are taxed at $296, including $20 for reading the depositions ; sheriff's fees for serving citations, $21.64 ; stationery is charged $16.52. These expenses are independent of the witnesses' fees, which were or- dered to be paid, but the amount of which I do not find carried out in the bill of expenses. The whole amount of. costs is nearly four thousand dollars. 112 TESTAMENTARY CAPACITY. From these orders an appeal was taken to this court. I must determuie whether the Orphans' Court was right in refusing this writing probate ; and it is my further duty to decide whether the costs taxed by that court shall be paid out of the estate. The caveators object to the writing offered as the last will and testament of Esther Horton, as follows, on the ground, — 1st. Of the general incapacity of the decedent to make a will at the time of the execution of this paper. 2d. That if of sufBcient general legal capacity, yet the decedent was the subject of monomania in reference to one of her relations, who had claims upon her bounty, so warping her affections and understanding as to prevent her making a disposition of her prop- erty in conformity with her real affections and her moral obliga- tions. 3d. That the execution of the paper was the result of improper influence and fraud. The witnesses who express opinions unfavorable to the capacity of the decedent to make a will, as well as the facts upon which their opinions are based, are few, notwithstanding the unusual amount of evidence that has been pressed into the case, the larger part of it wholly irrelevant, and which should not have been ad- mitted by the court. It is not contended, nor was any effort made to prove, that the decedent was naturally a woman of feeble intel- lect. On the contrary, the whole evidence taken on both sides shows that she possessed, at maturity, rather a strong mind. She was self-willed, impetuous, and unusually susceptible to preju- dices. She had an opinion of her own, in state as well as domestic affairs, and her opinions in these matters were neither singular nor erratic. Her business capacities are abundantly proved by the fact that she maintained always, even up to the day of her death, the control and management of the estate left Tier by her husband, selecting her own agents to aid her, without any dictation from others, and herself directing those agents, and they submitting to her judgment, without ever questioning its propriety. But it is contended that her mind began to fail her soon after the death of her husband ; that from that time her body began to yield and give way to a slow, but a steady and wasting, disease, and that with her body there was a natural decay of her intellect, which became so feeble, during the last few months of her existence, as to deprive her of those qualities of mind which capacitated her for the DISCUSSION OF ITS REQUISITES. 113 important duty of disposing of her property by a last will and testament. That the mind of the decedent was broken, impaired, and shat- tered by disease, is beyond question. But with such a standard of capacity, very few who had reached the age of threescore and ten years would be deemed competent to make a final disposition of their property. Did the decedent comprehend the act she was performing ? and was her mind strong enough to form a fixed intention, and to summon her scattered and enfeebled thoughts so as to enable her to execute that intention ? If she did not comprehend the act, or, if comprehending it, she could not control the feeble faculties of her mind so as to enable her to execute her intention, then she was not capacitated to make her will ; it mat- ters not whether such incapacity was the effect of a disordered or an enfeebled intellect. _ But although the numerous authorities, in our own and other courts, touching the subject of testamentary capacity, were ably reviewed and criticised by counsel in this case, I deem it unnecessary to do more than adopt for my guide in this investigation the rule laid down by Judge Washington, in Den v. Vancleve, in the Circuit Court of the United States for this dis- trict. That rule has been approved and acted upon by my prede- cessors ; it commends itself to my own judgment, and I do not feel willing, nor is it necessary in the present instance to question its propriety, or complain that it is not sufficiently rigid in the standard it fixes for the mental capacity of a testator. " He mxist," in the language of the law, " be possessed of sound and disposing mind and memory. He must have memory ; a mau in whom this faculty is totally extinguished cannot be said to possess understanding to any degree whatever, or for any purpose. But his memory may be very imperfect ; it may be greatly impaired by age or disease ; he may not be able at all times to recollect the names, the persons, or the families of those with whom he had been intimately acquainted ; may at times ask idle questions, and repeat those which had before been asked and answered, and yet his understanding may be sufficiently sound for many of the ordi- nary transactions of life. He may not have sufficient strength of memory and vigor of intellect to make and to digest all the parts of a contract, and yet be competent to direct the distribution of his property by will. This is a subject which he may possibly have often thought of, and there is probably no person who has not 8 114 TESTAMENTARY CAPACITY. arranged such a disposition in his mind before he committed it to writing. The question is not so much what was the degree of memory possessed by the testator as this, Had he a disposing memory ? Was he capable of recollecting the property he was about to bequeath, the manner of distributing it, and the objects of his bounty ? To sum up the whole in the most simple and intelligible form, Were his mind and memory sufficiently sound to enable him to know and to understand the business in which lie was engaged at the time he executed his will ? " Was the decedent of disposing memory ? It is a most singular fact that here was an aged female, — you may with some propriety say alone in the world, declining in health during the last eight years of her life, — managing by her own judgment, discreetly and most successfully, a large landed and personal property ; transact- ing business with individuals in all situations in life ; yisiting and visitfed by friends, near and distant ; taking a deep interest and mingling in neighborhood affairs ; participating in controversies, both of church and state ; executing five different wills, and nam- ing in each of them, by their proper names, upwards of twenty-six blood-relations, some of them as distant as grandnephews and grandnieces ; and yet, in the volume of evidence taken, not one single instance testified to, with any reliable certainty, where she mani- fested even an inaccuracy of memory. It is true it was argued that, having made no mention in her will of any of the seven chil- dren of her deceased sister, Hulda Coe, while all others of her living sisters, as well as brothers, and the representatives of such as were deceased, are remembered and referred to, is evidence of a failure of memory, even as to those who were proper objects of her bounty. But the same omission occurs in a will which she executed in 1843, and also in the three intermediate wills between that and the one now propounded for probate. The fact of the omission is accounted for. Her sister, Hulda Coe, left this part of the country more than fifty years ago, and had not been seen by the decedent during that long period ; and I believe there is no evidence of her ever having even seen any of Mr. Coe's children, except one of them, Mrs. Ben- nett. Her declarations to the Rev. Mr. Underwood, that it never was the intention of her husband that Silas Horton should have the place, and that it had never been her intention, though not true in point of fact, is easily explained, I think, in a more plausible manner than by attributing to her any failure of memory in these DISCUSSION OP THE EVIDENCE. 115 particulars. As to her showing a want of memory in reference to the extent of her estate at the time she executed the writing in question, I shall have occasion to refer to this fact at another place in this opinion ; I will only say here, I do not think the evidence justifies the conclusion attempted to be drawn from it. I will now examine the particular portions of the evidence relied upon as showing the incapacity of Esther Horton at the time she executed this writing. I do not consider it out of place for me to say that, when this case was presented on the argument, nor since, during a laborious investigation, which the importance of the case imposed upon me, has the slightest doubt ever crossed my mind as to the capacity of Mrs. Horton to make a will at the time of the execution of the writing in question. This conviction has not abated nor embarrassed my efforts in endeavoring to arrive at the truth of this case. The unusually protracted investigation in tlie Orphans' Court ; the decision of that court, refusing probate to the instrument; and the confidence assumed by all counsel on the argument, — all had their proper influence in leading me not to rely upon my first impressions. A most careful examination of the whole testimony has, however, but confirmed them. The Rev. Mr. Underwood was the first witness called by the caveators. He expresses no opinion as to the capacity of the decedent to make a will. The question was not asked him by either party. It may be well to say a word here as to the weight to be attached to the opinions of witnesses on the subject of men- tal capacity. The abstract opinion of any witness, medical or of any other profession, is not of any importance. No judicial tribu- nal would be justified in deciding against the capacity of a testator upon the mere opinions of witnesses, however numerous and re- spectable. A man may be of unsound mind, and his whole neigh- borhood may declare him so. But whether that unsoundness amounts to judicial incapacity for the discharge of the important duty of making a final disposal of his property, is a question which the court must determine upon its own responsibility. It does not depend upon the uncertain or fluctuating opinions of witnesses, but is to be ascertained by the court by the application of certain rules of law, in the exercise of a sound discretion regulated by these rules. How many in the community would declare a Millerite, or a Mormon, or an abolitionist, unsound in mind ? The opinion of a witness must be brought to the test of facts, that the court may 116 TESTAMENTARY CAPACITY. judge what estimate the opinion is entitled to. It is proper and legal to ask a witness his opinion as to the mental capacity of the individual to discharge the duty in question. He must state the facts upon which his opinion is based. The court will judge of the intelligence of the witness upon the subject to which he testifies, and the proper weight to be given to his opinion from the facts and circumstances upon which he founds his opinion. Had Mr. Underwood testified to the decedent's incapacity, no reliance could properly have been placed on his judgment. He resided some fifty miles distant from her neighborhood, and had not seen her for ten years prior to November, 1852. He details the circumstances of an interview he had with her in the month last named ; and so far from the facts detailed by him having a ten- dency to bring in question her mental capacity, they show, to any one who has any knowledge of the character of the woman, a mind most remarkably free from the ravages of disease and old age, and with a quickness and shrewdness to accommodate herself to the company she was in, rarely to be found in one in her situation in life. She comprehended at once the object of the visitor. It was ostensibly and perhaps for tlie only purpose of speaking to her upon the subject of her religious feelings. Worldly matters were, however, the main topics of conversation, and absorbed all other considerations. When the witness thought proper gently to hint at the judicious arrangement in the disposal of the farm on which she lived, and which he assumed had been made by her, it induced some remarks from her from which the conclusion has been at- tempted to be drawn that her memory was impaired. She denied warmly that it was ever the intention of her late husband to give the farm to Silas Horton, or that such was ever her own intention. This was not true, either in respect to her late husband or herself. But the further conversation upon the subject, drawn out by the remarks of Mr. Underwood in reply, shows very plainly not that the denial She had made was to be attributed to a decay or failure of memory, but exhibited her fixed determination that she would not be influenced in the disposition of her property, and that she well understood the neighborhood interest that existed in reference to this subject. I cannot discover, in the interviews Mr. Underwood had with her, the slightest evidence of feebleness of intellect. Her memory did not fail her in any particular, although their conversations embraced a variety of subjects. Distant friends DISCUSSION OF THE EVIDENCE. 117 were spoken of, and in her inquiries respecting them she exhibited a strong mind, a memory unimpaired, and good sense. She in- quired of the Rev. Mr. Hewson, who resided in Madison, if he was a friend of the Union. The witness asked what she meant, if she meant that he was a friend of the fugitive slave law ; that he supposed one might be a friend of the Union, and not be a friend of the fugitive slave law, and presumed that Mr. Hewson was not a friend of the fugitive slave law, but was a friend of the Union. She replied that she did not see how that could be. This opinion was consistent with her well known and uniform political views. She exhibited her pride, her self-conceit, her prej- udices. They were all consistent with her natural disposition and character. They showed, in the language of another witness while speaking of her still later in life, that she was Mrs. Horton still. Doctor Samuel Willet was Mrs. Horton's physician the last nine years of her life, and attended her constantly during her last sickness. He is the most important witness in opposition to the will, and his testimony is justly entitled to great consideration. He says the decedent was a woman of good mind — she was blind the last three or four years of her life, the natural effect of which was to make her disposition irritable ; her disease would not have that effect, nor was it calculated to disturb her mind ; it was chronic bronchitis, which turned to consumption, and terminated in her death. He says that, during the last two or three months of her life, she became more irritable and restless, and that during " her poorly turns " she would be a little delirious at times. This he discovered several times, once in particular about the 23d of January. When asked to state how she manifested this delirium, his reply was, that " she appeared when speaking to forget the subject she was upon, and spoke on- different subjects ; her mind appeared to be wandering, wishing to state something, and could not recollect what she wanted to express." Again he says, " she appeared at all times to be very forgetful, — some little derange- ment every poorly turn, — sometimes two or three weeks would intervene. I could not at any time depend upon her answers to questions put to her. On asking Mrs. Horton a question, I would look at the nurse. If Mrs. Horton answered the question correctly, she would signify it by a nod of the head ; this was in the latter stage of her case, the principal part of the month of January." Several significant questions were put to the doctor as to the 118 TESTAMENTARY CAPACITY. mental capacity of the decedent, and in order fully to appreciate the answers, it is requisite to have the relative questions and answers in juxtaposition. He was asked : Q. Prom the examination you made of her, as her physician, and from your observation of the effect of her disease upon her, had she, or not, in your opinion, at any time after the first of December, a.d. 1851, a sound and dis- posing mind and memory t A.\ could not say, from the examina- tion that I made, that she had a sound mind, and her memory was defective, or deficient, I meant. Q. Had she, or not, in your opinion, sufficient mind and memory to understand the relative situation of her connections, and the general extent and value of her property, during the last two or three months of her life? A. Prom the questions put, anci the answers received, during the months of October and November, her mind and memory were not good, or were more deficient, I ought to have said, than they were three months previous ; and in the months of December and January the change of mind and memory had been still more, or was still more deficient. Q. Had the change of mind and memory, in your opinion, during the mouths of December and January, been such that she could or could not understand the relative situation of her connections, and the general extent and value of her prop- erty 1 A. 1 should suppose, in her situation, it would be very difficult for her to recollect all her connections, and to make a correct estimate of her property." Upon these answers of Doctor Willet no judicial tribunal would be justified in deciding against the general capacity of the decedent to make a will. His testimony is only to the effect, that at times she was delirious ; that her mind was unsound and her memory deficient. But it is not a mere unsoundness of mind, or a memory impaired, that constitute that mental incapacity which will deprive a person of disposing of his property. In the rigid examination of Doctor Willet there is no fact stated by him to show that the de- cedent's mind or memory was pe'mianently impaired. It is true there was delirium and a defect of memory, but only temporary in their character. In her extreme sickness her mind was wandering, and the only defect in memory which the doctor specifies is, that he could not depend upon her answers to the questions as to her health and pains, ordinarily put by a physician to his patient. No instance of forgetfulness, as to her numerous family connections and friends, or of the neighborhood matters, in which she had DISCUSSION OP THE EVIDENCE. 119 manifested a deep interest, and which were the frequent topics of her conversations, is mentioned by the doctor or by any one else. On cross-examination. Doctor Willet says < " This slight delirium that I spoke of was produced by fever or febrile action, and passed off as the fever declined." But, in addition to all this. Doctor Willet testifies as to the situation of the decedent on the very afternoon that she executed this paper, and proves conclusively that, according to the estimate he made of her character, she was in the eye of the law capable of making a will. While Judge Logan was drafting the will. Doctor Willet went in. The decedent had then been up for several houi's engaged in preparing and consulting about the paper. When the doctor went in, he said something about intruding. Mrs. Horton said he was not, and asked him to take a chair. He asked her how she was, and felt her pulse. He says, " I did not think she had any fever when I examined her ; her pulse was feeble, and I advised her to take wine. I was certain she had no fever when I examined her. I did not discover any thing different in her ap- pearance at that time. I did not discover any thing like delirium in the few minutes that I was in her room." I consider Doctor Willet a strong witness in support of Mrs. Horton 's capacity, at the time, to make a will. It is true, he says, he considered her insane in reference to certain church matters. If he was right in this, there were many more insane persons in that neighborhood besides Mrs. Horton. But I think I may safely say there is room for two opinions, not only as to whether Mrs. Horton was insane, but whether she was right or wrong in her judgment as to the church difficulties referred to. But I shall have occasion, in another part of the case, to refer to these matters. Lydia Ann Coleman, another witness against the probate, testi- fies to several instances to show the unsoundness of mind of the decedent. For the first time, in the fall of the year before dece- dent's death, she noticed someting strange and out of the way, and she details the circumstance as follows : " Last fall was the first that I noticed ; we were on a ride to the plains ; she wanted that I should stop the horses ; I done so, and asked her what she wanted ; she asked me where I was taking her to ; I told her to the plains ; she said I was not, that I was taking her in the woods — she said she had one girl drive her in the woods to murder her or rob her — it was with difficulty that I got her to go any further; 120 TESTAMENTARY CAPACITT. she insisted on going back, and sat for some time before I could get her to go any way ; she finally concluded to go to the plains. She would repeat over a line out of the Bible, and then one out of the hymn-book, and in a few minutes she would spell a word, and then put one out for me to spell." The witness mentions two other instances of supposed aberration of mind, — one, in which the old lady insisted that a Sharon tree, which had formerly stood by the corner of the house, was a dahlia, and had been destroyed by her nephew and his wife ; and the other, in which she insisted that her nephew had grown so thin as to become a mere skeleton in appearance. Admitting these instances of unsoundness of mind in all their force, and without any explanation, they only show temporary derangements, transitory in their nature, and very far removed from that degree of unsoundness of mind which will disqualify the individual from the exercise of a testamentary privilege. But in connection with the fact, that, in a life of more than seventy years, these' are the only instances in which similar peculiarities of in- sanity were exhibited, and these before one witness only, they throw no light upon the subject we are investigating. They look to me more like sallies of pleasantry on the part of Mrs. Horton than the evidences of her insanity of mind. Thomas K. Leek saw the decedent on the 26th or 27th of De- cember preceding her death. She sent for him to come and see her. She wanted to lease to him her farm on which she resided. They had considerable conversation together upon that and other subjects. She said or did nothing which the witness relates, during the interview, to lead any intelligent man to doubt her sanity. The witness, however, says, that he made no bargain with her about the farm, because he did not consider her at that time capa- ble of doing business. Upon being cross-examined, the witness admitted that immediately after his interview with the old lady, upon being asked why he did not take the farm, the reason he gave was that he could not make a satisfactory arrangement about the farm-house. He admits that, in conversing with his neighbors upon the subject of the interview, he never gave the reason for not taking the farm, now for the first time alleged in his examination. He never expressed his opinion to any one of the incapacity of Mrs. Horton at that time, or that the interview he had with her excited any such suspicion in his mind upon the subject. DISCUSSION OF THE EVIDENCE. 121 Elisha Skillinger, another witness of the caveators, appears to be a man of intelligence, and one whose position towards Mrs. Horton would afford him some opportunity of forming an opinion as to the state of her mind. Speaking of an interview with her in January preceding her death, he does not venture the opinion that she was not of sufficiently sound mind and memory at that time to make a will. The furthest he is willing to go is to say, that he thought, at the time, that she was not in a condition to reason clearly, and, likewise, that she was strongly prejudiced. Mr. Skillinger differed with her in church matters. They belonged to different parties in the church. He went to reason with her upon these difficulties, and to disabuse her mind in reference to some of them, in regard to which he supposed she had conceived wrong impressions. After a long and exciting conversation, in which she exhibited much feeling, the judgment of the witness, as to her mental faculties, was that of an intelligent and judicious man, — not that she was insane, but that she was greatly preju- diced, and not in a condition to reason clearly. The testimony of this witness is very important. The time he speaks of was two or three days before the decedent signed the writing in dispute. It is the same time at which Lydia Coleman represents her as most feeble in mind and body. The evidence of Mr. Skillinger shows that the great debility of body and weakness of mind, which Lydia Coleman represents Mrs. Horton to have exhibited at this time, must have existed only at intervals. The long and exciting con- versation, or controversy it may most properly be called, which Mr. Skillinger refers to as having taken place, was calculated to try the nerves and the strength both of body and mind. It is impos- sible that there could have been any permanent decay of memory, and not have exhibited itself then. Matters of an exciting char- acter, running through a period "of eight years, were talked over and discussed. Men and their transactions were named and talked about, and yet the witness does not mention or intimate that Mrs. Horton betrayed the least weakness of memory or any evidences of insanity. There is much satisfaction in meeting with a witness like this. His feelings are one way, but he remembers his respon- sibility as a witness, and will not permit his judgment to be warped by his partialities. There were seven other witnesses examined against the will. They are witnesses whose opportunity of judging as to the dece- 122 TESTAMENTARY CAPACITY. dent's capacity was by no means as good as that of the witnesses we have particularly referred to ; they state no facts of impor- tance, and I do not think it necessary, therefore, to examine their evidence. Upon a careful examination of all the evidence offered by the caveators against the probate, I do not think there is a doubt cast upon the general capacity of the decedent to make a will at the time this paper was executed. The evidence of the witness to the execution of the paper pro- pounded, and that of other witnesses examined to support the decedent's capacity, is most satisfactory and conclusive on the point. Three witnesses were present at the execution of the writ- ing, — the three subscribing witnesses, and Judge Logan, one of the two individuals named as executors. Judge Logan was ob- jected to as incompetent when offered as a witness before the Orphans' Court. The objection was overruled, and his testimony was taken and reduced to writing with that of the other witnesses examined. No objection was made to reading his evidence on this appeal ; indeed, it was used and relied upon by the appellees to sustain their views of the case. I am not called upon, therefore, to decide whether a person who "is named as executor in a will is competent as a general witness to sustain it upon a caveat filed against its admission to probate. It is hardly necessary for me to advert to the particulars of the testimony of the witnesses upon the subject of capacity. The facts and circumstances they state prove, as clearly as the fact could be established by human testimony, that Esther Horton, at the time she executed the paper, was of sound and disposing mind and memory. There is no way of avoiding the conclusiveness of their testimony upon this subject, except by impeaching it ; and that im- peachment cannot be by charging the witnesses with forgetfulness, inaccuracy, or by being biassed by partiality or prejudice, but must convict them of the grossest dishonesty. The counsel met the case boldly, and relied for success upon establishing the dishonesty of every one of the subscribing witnesses, and of Judge Logan, who drew the will. Who are these witnesses ? William Logan and Nathan A. Cooper are men who have long since passed the meridian of life. They have always enjoyed the confidence of the community in which they lived. They have oc- MONOMANIA OB PAETIAL INSANITY. 123 cupied places of trust under the State government. They have, each of them, by a long hfe of integrity and usefulness, earned for himself a good name. William Logan takes nothing under this ■will except as executor, and neither Nathan A. Cooper or any of his connections or friends are directly or indirectly benefited by it. John Vandoren and William I. Topping, though men in a humbler sphere of life, are of good and honest report. They are all of them now charged, not only with perverting the truth, but of enter- ing into a most, dishonest and wanton combination. And what is charged as the reward of their iniquity ? As to one of them, the. mere gratification of revengeful feelings for a supposed injury toward one of the objects of the decedent's bounty. As to an- other, the paltry commissions of an executorship ; and as to the others, no motive can be imagined. The general character of these witnesses is not impeached ; but it is said that the testimony of each of them is inconsistent and contradictory in itself, and that, in detailing the particulars of the same occurrence, they contradict each other. I have been unable, after a most careful scrutiny of the evidence given by these wit- nesses, and of the particulars in which it is alleged the contradic- tions and inconsistencies exist, to detect any thing calculated to excite a suspicion that either of them is not entitled to the most implicit confidence. There are, it is true, apparent contradictions ; but they are such as not in the slightest degree impeach the integ- rity of the witnesses. Four honest men, in detailing the particu- lars of a transaction which lasted several hours, might naturally be expected to make like variations in their account of what took place. In the leading facts they all agree. In immaterial matters and in the order of occurrences there is some variance. There is enough for criticism, but not enough to excite any surprise that honest, or even accurate men should have madei them. The second objection interposed to admitting the writing to probate is, that the decedent was the subject of monomania towards her nephew, Silas Horton. We have already considered the subject of the general capacity of the decedent, and have reached the conclusion of her general competency. There was no general derangement then of the intel- lectual faculties indicating a mania rendering the subject incom- petent to make a will. Our inquiry must now be limited to the consideration of the proposition, which the caveators have under- 124 TESTAMENTARY CAPACITY. taken to establish, that Esther Horton was the subject of a partial derangement of the mental powers, affecting her relation to her nephew, Silas Horton, to such a degree as to incapacitate her in the eye of the law from making by will a final disposition of her property. In examining this question it is important that we should con- sider the connection which existed between Esther and Silas Horton, and ascertain how the fact of Esther Horton's partial derangement, confined to her nephew, can legally affeet the dis- position of the decedent's estate, for a person may be a monoma- niac, — the subject of a partial derangement towards a particular individual, — and this derangement may be the cause of depriving such individual of the bounty of a testator which he otherwise would have enjoyed, and yet the will be valid and obnoxious to no principle of law. Instance the case of an individual having two sons, his only heirs-at-law, and a nephew, to whom he is under peculiar moral obligations to leave a liberal portion of his estate. He acknowledges his obligation, and he intends that this nephew shall be an object of his bounty, and shall share with his legal heirs his whole property. He suddenly conceives the notion that his nephew has become a king, or an inheritor of immense wealth, and under this vain delusion he makes his will, leaving his whole estate to his sons, — to one of them two-thirds, and the remaining third to the other, the proportion between the two sons being in no wise affected or having no connection with the delusion towards the nephew. Can the validity of such a will be questioned ? Oui bono ? Not by the nephew. The delusion, it is true, has lost to him a valuable estate ; but the interposition of a court, by refus- ing probate to the will, cannot make him an heir-at-law or a par- ticipator in the inheritance. Nor can the son who takes the lesser portion of the estate impeach the will, for the delusion in no way affected the disposition made to him. In this case, if Esther Horton was under a moral obligation to make her nephew, Silas Horton, a devisee or legatee under her will, but was prevented doing so by an insane delusion which had seized upon her mind, and which was confined to Silas Horton alone, the court will not refuse probate to the will on that account, unless by doing so it can restore Silas Horton to a position which he has lost by the intervention of the instrument. Silas Horton is not an heir-at-law of the decedent. The inquiry is, therefore, a MONOMANIA OR PARTIAL INSANITY. 125 proper one, What interest has Silas Horton in the question ? and as to the other caveators, did the delusion, if any existed toward Silas Horton, affect in any way the dispositions made by the dece- dent of her property in respect to them ? Esther Horton was under some obligation to devise the farm which she received by will from her husband to Silas Horton. Her husband had given instructions to the scrivener to draw his will, and to leave the farm to his wife's nephew, Silas. The will was prepared agreeably to such instructions. It was altered in the particular referred to upon the solicitations of Esther Horton, and she assured her husband that she would leave the farm to Silas. She intended, until within a few months of her decease, to fulfil this promise. Admitting that she conceived in her mind an unfounded delusion toward Silas, amounting to such a partial derangement of her intellectual faculties as to obliterate all obliga- tion she was under towards him, and to deprive her of her right reason in every thing connected with him, how can this partial derangement disturb this paper-writing as her last will and testa- ment ? Silas Horton is not one of her heirs-at-law. If this writ- ing is not admitted to probate, Esther Horton died intestate. There is no other paper offered for probate as her last will. It is true she did execute other papers prior to the one in question, but they were all cancelled. They are not offered for proof ; and this court is bound to decide upon this paper as involving the question as to whether the testator died intestate or not. There is no other paper that this court can now establish as the last will of Esther Horton, except the one in dispute. There is no other set up or propounded as her last will. It will, therefore, be of no avail or benefit to Silas Horton for this court to declare that such delu- sion and derangement as is alleged did exist. Does any one else show that such delusion afifected his interest in the decedent's estate ? Susan McOoUum, who caveats against this paper, is a sister of decedent. It is proved that Esther Horton's state of mind towards Silas has in no manner afifected her interest. She gets by this will, if sustained, -f 100. By four other wills, executed by the decedent and cancelled, one as early as 1843, nothing was given to this sis- ter. Aaron Horton, a brother and heir-at-law, gets f 100 by this will. Nothing had been given him by any of the prior wills. Ourtiss Coe, another heir-at-law, being one of the children of a 126 TESTAMENTARY CAPACITY. deceased sister, who also lias filed a caveat, takes nothing by this will. Neither he, his mother, nor any of the family, had been mentioned in any of the wills of decedent. It is proved, as clearly as any such fact can be established, that the feelings of Esther Horton towards her nephew did not in any manner affect these caveators. I feel perfectly satisfied in coming to the conclusion that if the derangement or monomania towards Silas Horton did exist, as contended for, it is no objection to admitting this writing to probate. But did any such derangement of mind or monomania pervade the mind of the decedent as would, under any circumstances, have incapacitated her from making a will ? It is important in investigating such a question to distinguish between unreasonable and unfounded prejudices and a derange- ment of mind. In the ejectment suit which turned upon Green- wood's will. Lord Kenyan, in his charge to the jury, to be found in Curteis' Ecc. Rep., vol. iii. Appendix, says : " A mul- titude of instances there have been where men have taken up prejudices against their nearest and dearest relations ; it is the history of every week in the year, and the history of almost every family, at one time or other, that harsh dispositions have been made — that unreasonable prejudices have taken place — that one child standing equally near in blood has been pre- ferred to another ; and if once we get into digressions of that kind, then we get upon a sea without a rudder. Where will you stop ? What partiality will be enough to set aside a will ? And what partiality will you give way to and say the will is good ? These are questions which the most correct and acute mind that ever addressed himself to the consideration of questions will not be able to settle." It is alleged that Mrs. Horton was deranged in reference to church matters ; that she conceived the notion that Silas Horton was combining with the Rev. Mr. Stoutenburgh, the pastor of the Congregational Church at Chester, and was squandering certain funds which had been left to the church by her husband ; that he and the Rev. Mr. Stoutenburgh were changing the platform, as it is called, of the church, and destroying its usefulness. Was all this a mere delusion ? did it exist only in her imagina- tion ? or was there some foundation for the belief she entertained ? For if there were actual ground for suspicion of an injury, though 127 in fact not well founded and disbelieved by others, the misappre- hension of the fact will not be considered mental delusion, and a will made by a party afifected by such suspicion may be valid. Greenwood's Case, 13 Ves. Jr. 89, 3 Bro. C. C. 444 ; Dew v. Clark, 1 Add. 279, 3 Add. 209 ; Heath v. Watts, Prerog. 1798, Deleg. 1800. There was a feud in this church, in which Mrs. Horton took a part. The pastor of the congregation insisted that a colored clergyman from Newark should be permitted to preach. To this there was great opposition, and, with many others, Mrs. Horton was greatly excited, and took part against her clergyman. Nathan A. Cooper, who was then the treasurer of the congregation, and Mrs. Horton belonged to the same party. Silas Horton joined the party of the Rev. Mr. Stoutenburgh. The aunt and the nephew thus became estranged. In February, 1851, Nathan A. Cooper was displaced as treasurer, and Silas Horton elected in his place. This widened the breach, and these, with other matters connected with the subject, induced the belief in Mrs. Horton's mind that they were ruining the church. As to squandering the funds, the history of that matter is this : The husband of decedent had by his will bequeathed a legacy of f 3,000 to this church, with instruc- tions " that it should be placed at interest, secured by bond and mortgage on real estate, and the interest thereof appropriated towards the supporting of the preaching of the. gospel in said church." When this fund was received, Nathan A. Cooper was elected treasurer, and took charge of the fund. This fund had been infringed upon to the amount of several hundred dollars, and the deficiency had never been made up. When Nathan A. Cooper was turned out as treasurer and Silas Horton took his place, Mrs. Horton entertained the belief that they were squandering this fund of 13,000 left to the church by her husband. Who has a right under such circumstances to say that the conviction upon Mrs. Horton's mind in reference to these matters was the evidence of insanity or derangement ? Whether her judgment was right or her conclusion reasonable is not the question. But is it at all singular that, under the excitement existing in that congregation in reference to these matters, she formed the judgment that she did ? Was not the cause adequate to the effect, and cannot the conclusion she arrived at be accounted for upon the rational opera- tions of the human mind ? Without expressing my own opinion as 128 TESTAMENTARY CAPACITY. to her judgment of the course taken in reference to the introduc- tion of a colored person into the pulpit, I think I may safely say, if it is evidence of insanity, more than three-fourths of the people of the State could easily be found insane. And as to her judgment upon the use that the trustees were making of the funds of the church, and its consequences, it was no evidence of derangement of mind, unless it can be shown that it is irrational to form or express an opinion unfavorable to a clergyman or an officer of a church. From the evidence before me, I cannot say that Mrs. Horton showed either a want of judgment or of good sense in relation to these church matters. As to the declaration of Mrs. Horton that Silas was not a good farmer, that he was suffering the fences on the farm to go to ruin, and other like declarations, they are all accounted for from the fact of the excitement in church matters, and from her feelings towards Silas in consequence of the part he had taken in them. There is nothing in the objection that Esther Horton, at the time she ex- ecuted this writing, was the subject of monomania towards her nephew, and that the paper offered for probate was the result of such a derangement of mind. The only further objection to probate is, that the writing was produced by undue influence, and should be rejected on that account. This influence is alleged to have been exerted by Nathan A. Cooper. He has no interest in the question of the will of the decedent. The motive attributed for the alleged influence is to gratify his malignity towards Silas Horton. Nathan A. Cooper and Silas Horton were opposed to each other in church matters, and the latter supplanted the former as treasurer of the church. From these facts the inference is first to be drawn that Nathan A. Cooper cherished a concealed spirit of revenge against Silas Hor- ton, for there is no evidence to show that they were not on appar- ently friendly terms, or that Nathan A. Cooper ever said or did any thing openly that exhibited any thing like malice or revenge towards Silas Horton. Such influence, if any was exerted, must amount to fraud. Nothing less can vitiate the instrument. Pacts are relied upon from which it is asked that fraud may be inferred. It is proved that a difference existed between Nathan A. Cooper and Silas Horton ; that Esther Horton was involved in the controversy, PROOF OF UNDUE INFLUENCE. 129 and that she took sides with Cooper ; that she and Cooper were on most friendly and intimate terms ; that he visited her some four or five times during the three months immediately preceding the execution of the writing ; that three days prior to .its execu- tion he made her a visit, and an arrangement was then made for the meeting, when the will was executed ; that he was present with Judge Logan and Mrs. Horton while the paper was drawn ; that he went after two of the subscribing witnesses, and with them wit- nessed the instrument. It is proved that she declared, upon two or three occasions, that Cooper furnished her with a copy of the " negro resolutions," as they are denominated in the Evidence, and that he told her that the Rev. Mr. Stoutenburgh was squandering the church funds. There is no proof that she at any time con- sulted with him as to the disposition of her property, or that he ever advised her to make the disposition of it she did ; that he ever spoke to her about Silas Horton in reference to her estate, or un- kindly about him in reference to any other subject. There is no proof that he ever at any time said one word to her that influenced her in the disposition of her property. Judge Logan testifies that Mr. Cooper was there during the whole afternoon while the will was being drawn, but that he was not consulted, and that he did not give any advice, or interfere in any way with the business. There is no evidence to justify the belief that Mr. Cooper exerted any improper influence over Mrs. Horton in reference to the dis- posal of her property or the execution of this paper. He had a right to advise her, if his advice was asked. He was her friend and neighbor. If he did advise her, it is not to he presumed that he deceived her, or took an undue advantage of his friendly posi- tion. No such influence can fairly be drawn from the facts proved in this case. I feel bound to say, in justification of Mr. Cooper, that there is nothing proved in this case that ought for a moment to shake any one's confidence in him as an honest man. There is not the slightest ground for the objection to the probate, that the instrument was procured by improper or undue influence exerted by Nathan A. Cooper. 130 TESTAMENTARY CAPACITT. 4. Turner v. Oheesman, 15 New Jersey Equity Reports, 243. 1857. We give below the opinion of Chancellor Green, as Ordinary, in the Prerogative Court of Probate, in the State of New Jersey. It will be found to embrace much judicious commentary upon testa- mentary capacity, and especially upon the weight of the testimony of the subscribing witnesses, and the different character of such witnesses, as dependent upon the mode of their selection. The mere fact that one is a subscribing witness to a -will does not entitle his opin- ion of the competency of the testator to execute the same to any more weight than that of any other witness. And if it happens, as is not uncommon, that he is selected at the moment, merely for the purpose of meeting the legal requirements, his opinion upon the tes- tator's state of mind can be of but very little weight. The weight of the evidence from the opinion of the subscribing witnesses de- pends upon the same considerations which affect the weight of the opinion of other witnesses upon the question of the testator's competency. ' ' Whether a subscribing witness or not, we must look at the intelligence of the man, and the means he enjoyed of forming the opinion which he advances, and give weight to his opinion accordingly." One who knew the testator intimately for many years before, and especially near the time of the execution of the testamentary act, if he was a close observer and possessed of discriminating and impartial judgment, must be regarded as competent to afford great aid in determining the testator's competency, by his opinion, in connection with the facts upon which it is based. Undue influence. That degree of influence which is sufficient to deprive the tes- tator of his free-agency — and which he is unable to resist — will invalidate the testamentary act thus induced, not only in reference to the person of persons by whose instrumentality it was procured, but as to all others in- tended to be benefited by such undue influence. The facts are sufBciently stated in the opinion of — Green, Chancellor, acting as Ordinary. On the 9th of February, 1853, Peter Cheesman executed a writing as his last will and testa- ment. On the 4th of March, 1856, he executed a paper, purporting to be a codicil to his will of February, 1853. On the 25th of March, 1856, he died. The above instruments of writing were offered for probate to the surrogate of the county of Camden. To the proof of the will, dated February, 1853, no objection was made. The re- spondent filed a caveat against probate of the codicil- After in- vestigation before the Orphans' Court of the county of Oamden, STATEMENT OP THE CASE. 131 the judges being equally divided as to the admission of the codicil to probate, an order was made rejecting it. This is an appeal from that order. After a careful examination of the evidence, I think the order made by the Orphans' Court was erroneous, and that the codicil should have been admitted to probate. By the will of 1856 the decedent devised his homestead farm to his wife during her life, and at her death to be equally divided among his children. By the codicil he devises his homestead farm, after the death of his wife, to his son, John S. Cheesman. This is the only material difference made by the codicil, and has given rise to this controversy. The grounds of objection made to admitting the codicil to pro- bate are two : first, that the testator, at the time of its execution, was not of sound and disposing mind and memory ; and, second, that while his mind was debilitated and distracted by the disease under which he was suffering, his two sons, Benjamin and John, took advantage of the testator's situation, and, by exerting an undue influence, induced the execution of the codicil. On the 25th of January, 1856, the testator was taken ill of the sickness of which he died. It was a chronic affection, designated by the physicians hydro-thorax, or an accumulation of water in the cavity of the chest. The disease is one fluctuating in its character ; but in the case of the testator was so violent as, upon a man of his age, to leave no hope of a permanent cure. He was about eighty- five years old at the time of his death. There certainly is nothing in the evidence to justify the enter- tainment of a doubt as to the entire comjietency of the testator to make a will prior to his last sickness. Our inquiry, therefore, is confined to a very limited period, — that intervening between the 25th of January, 1856, and the 25th of March following, which was the day of the testator's death. It was in this interval of time that the codicil was executed. I think this is one of those cases which must depend very much upon the testimony of the subscribing witnesses, and for this rea- son ; there is no pretence, or, at any rate, no evidence, to justify taking the ground that there was any permanent continued de- rangement or prostration of mind, such as would render the testa- tor incompetent to make his will. Jacob Johnson, one of the strongest witnesses for the caveat, and upon whom the respondent places much reliance, says he was with the testator a good deal 132 TESTAMENTARY CAPACITY. during his last sickness, and sat up with him several nights ; part of the time he appeared to he rational, and part of the time ap- peared to know nothing. He further says, before he was so sick as to require sitting up with, I did not notice any thing of his being out of his mind. William C. Garwood, the son-in-law of the tes- tator, a witness for the caveat, says, when he saw the testator, six weeks before his death, he seemed to have his proper mind as much as could be exipected for a man of his age and as sick as he was. John Lane says, he could not say the old man was right all the time, or wrong all the time. This is a fair specimen of the evidence of the witnesses who were sworn in support of the caveat. Most of the witnesses examined on behalf of the caveator have their feelings enlisted in this controversy. They are nearly con- nected with the family, and certainly feel a desire to defeat the codicil. I am doing, and intend them no injustice in saying this ; for I could not fail to notice in this case in reference to, I think, all the witnesses who were in a position to feel an interest in the controversy, that they did not deny nor attempt to conceal upon which side their feelings were enlisted. I place more reliance upon their evidence for their candor in this particular. What was the state of mind of the testator on the 6th of March, 1856, the date of the codicil ? The will of 1856 was drawn by Edward Turner, and he also drew the codicil. Mr. Turner's char- acter for probity and as a man of intelligence is not questioned. He was named as one of the executors in the original will. He is in no way interested in the question that has arisen as to the codicil. Whatever may be the issue as to it, his executorship is not affected. He does not appear to have taken any part in this controversy, and has not manifested any interest in favor of any of the parties. He has not been examined as a witness ; but it is something in favor of the validity of the codicil that it was drawn by him. As he was well acquainted with the testator, and pos- sessed his confidence, and was intrusted by him to draw and exe- cute his will, we cannot suppose that he would have drawn a codicil and have permitted the testator to have executed it at a time when he was not competent to dispose of his property. We have the fact that, on the day before tlie will was executed, Mr. Turner went to the testator's house and received his instruc- tions as to drawing the codicil. What transpired at the time, or who was present when the instructions were given, if any one OPINIONS OF ATTESTING WITNESSES TO WILL. '133 besides Mr. Turner, there is no witness who testifies. The fact of the testator having himself given instructions to Turner appears from a remark made at the time of the execution of the codicil. When Mr. Turner, in reading the will, read forty acres, the old man interrupted him and said, " I told you twenty." The witnesses to the codicil are Samuel D. Sharp and Joseph Kean. We have the opinion of both of them, that at the time of the execution of the codicil the testator was competent. They detail all the circumstances that took place at the time ; and, as related by them, what then transpii-ed would seem fully to justify the opinion they formed as to his competency. The mere fact of a man's having affixed his signature to a will as a subscribing witness does not, it appears to me, of itself entitle his opinion, as to the competency of the testator, to any more weight than that of any one else who may be called upon to testify. If the subscribing witness is a stranger, — which is sometimes th§ case, — called upon to meet the exigency of the moment and having no opportunity in a sick chamber to ascertain and judge of a man's capacity, his opinion is not certainly entitled to as much weight as that of a friend who saw the testator about the same time, and who was afforded an opportunity of conversing with him and testing the sanity of his mind. The opinion of a subscribing witness is entitled to' weight from the same consideration as that of any other man who is not a subscribing witness. Tlie means which he enjoys of forming a correct opinion gives weight to his opinion. The opinion of anyone — whether a subscribing witness or not — is but of little value, unless he can give us the reasons for the opinion he expresses, and can show that he had an opportunity to justify him in forming the opinion he expresses. If the subscribing wit- nesses are acquaintances and friends of the testator, familiar with his peculiarities ; and if, added to this, they are men of intelligence, and at the time were afforded an opportunity of judging of the tes- tator's state of mind, their opinion would be entitled to very great and controlling consideration. It is often said that subscribing witnesses are those called by the testator himself to attest to his capacity, and that, on this account, the law attaches great weight to their opinion. But it most frequently happens that a testator gives it very little thought as to who are the witnesses of his will, and in fact has nothing to do with selecting them, but leaves it altogether to the scrivener who draws his will. An individual, 134 TESTAMENTAET CAPACITY. called into a sick chamber to witness the will of an invalid, would be thought destitute of good breeding and impertinent should he propound any question for the purpose of testing the sanity of the man whose will he is called upon to attest. Such an occasion is regarded as a mere business one, and is despatched with little ceremony, and most frequently without any opportunity being afforded of judging of the state of mind of the man who executes the instrument. Whether a subscribing witness or not, we must look at the intelligence of the man, and the means he enjoyed of forming the opinion which he advances, and give weight to his opinion accordingly. In this case both the witnesses were friends of the testator of long standing, and they had the opportunity afforded them of ascer- taining the state of mind of the testator at the time of the trans- action of which they testify. Mrs. Cheesman, the wife of the testator, and Mr. Turner, the scrivener, were present with the wit- nesses, and they all saw the will executed. It was not done in haste, but in a manner and under circumstances that afforded a full opportunity of judging whether the testator at that time understood the business he was transacting and was capable of performing it. Samuel D. Sliarp was a subscribing witness to the will to which this was a codicil. He was therefore a very suitable person to be called upon as a witness to this instrument. The testator recognized the witnesses and conversed with them. He- gave directions to his son to get in wood, and keep the house warm. Tbe codicil was read over to him. His wife asked him if she should go out of the room. He answered, " No, you can stay in." The testator stopped Mr. Turner twice while he was reading the codicil, and had alterations made, and gave his reasons for the alterations, and in both instances gave evidence of memory and understanding. After the alterations were read over to him, he said they were right. After the execution of the codicil, the witness, James Kean, sat by the bedside and conversed with the testator. He said, address- ing the witness, " Jonas, I have been worried about this, for fear I could not get it fixed." He then stated that, having the codicil fixed, he was satisfied. He reached his hand over to the witness and said, " I am now ready to die ; I was ready before, — all but that." The witness says he had been acquainted with the testator for twenty years ; that he was a man of decision and firmness ; UNDUE INFLUENCE. 135 and from the conversation he had with him that day, and a few- days before, he thought he had the best mind of any man of his age he had ever known. We have here the testimony of three intelligent and disinterested witnesses in favor of the competency of the testator at the time the codicil was executed. Although Mr. Turner was not examined as a witness, the position he occupies towards all the parties — the fact of his receiving the instructions as to the codicil the day before its execution, and his presence at the time superintending its execu- tion — is testimony as strong in favor of the testator's competency as if he had given direct evidence to that effect as a witness upon the stand. In corroboration of these witnesses, we have the tes- ■ timony of Dr. Clarke. Prom the 8th of February to the 7th of March, the testator had no attending physician. Dr. Clarke was called in, and visited him for the first time on the 7th of March, and attended him as his physician to the time of the testator's death. He testifies that at his first visit the testator's mind was perfectly clear ; that his disease had no direct connection with his mind, and would not affect his mind directly as fever would ; that he saw nothing about his case which would lead him to doubt his competency to make a will ; that on the 13th of Marcli, when he next vi-sited him, he found him pretty much the same as at his first visit, and so again at his next visit on the 17th of the same month ; that on the 20th he was worse ; on the 23d he was insen- sible ; on the 24th he died. He explains the characteristics of the disease, which explanation reconciles the testimony of the wit- nesses, who declare that at the times they saw him he was in- competent to make a will, with the testimony of the subscribing witnesses, that when he executed the codicil he was competent. It appears to me tliat there is nothing in the evidence which has been adduced on the part of the caveator to invalidate the evidence of the subscribing witnesses, and that it is proved, beyond any reasonable doubt, that the testator at the time he executed the codicil was of sufficient sound mind, memory, and understanding to dispose of his property by will. As to the other objection against admitting the codicil to pro- bate, — that the codicil was induced by undue influence, — I do not think there is any evidence to justify the charge. There is no evidence that Benjamin or John ever, at any time, had any conver- sation with their father about making his will. The facts that 136 TESTAMENTARY CAPACITT. Benjamin once said he was going to try to make his father give John the homestead ; that wlien it was alleged his father was out of his mind, John denied it ; that John lived with his father, and was kind and attentive to him ; that he went after the witnesses to attest the will ; that John said his father was going to make his will in February, 1853 (which was the time the first will was exe- cuted), and that Edward Turner was coming up for the purpose; that Benjamin wanted the old man to sell his timber to pay his debts, and influenced him in reference to the management of his property, — these are all the facts, or the principal ones, relied upon to show undue influence. They amount to nothing in estab- lishing the allegation that the codicil in question was the result of undue influence, exerted either by John or Benjamin over their father. Such are not the influences which the law regards as un- due or illegal. The influence must be such as to destroy the free agency of the man over whom it is exerted, whether threats of bodily harm or unceasing importunities to a man on his death-bed, or by act of unkindness, when the subject of it is in the power and at the mercy of another ; if the individual occupies a position towards another, dependent upon him for their little attentions and conveniences, which alone make life suppprtable, so that he cannot say no to a mere request that is made of him ; no matter how little the influence, if the free-agency is destroyed, it vitiates the act which is the result of it. " A testator should enjoy full liberty and freedom in the making of his will, and possess the power to withstand all contradiction and control. That degree, therefore, of importunity or undue influence which deprives a tes- tator of his free-agency, which is such as he is too weak to resist, and will render the instrument not his free and unconstrained act, is sufiicient to invalidate it, not in relation to the person alone by whom it is so procured, but as to all others who are intended to be benefited by the undue influence." 5 Gill & Johns. 302. In this case there is no proof at all of either John's or Benja- min's attempting in any way, by word or deed, to exert any influence over their father in reference to the disposition of his property. It was proved that the old man repeatedly declared that it was his intention to divide his property equally among his children. This evidence was objected to. The evidence is competent. Where the sanity of the testator is in question, and where undue DECLARATIONS OP TESTATOR. 137 influence is sought to be established, it is competent to give in evidence the declarations of the decedent to show that the disposi- tion of his property by the writing which is propounded for pro- bate is in opposition to his intention, as manifested by his repeated declarations upon the subject. The declarations in this case amount to nothing. If the codicil had not been made, the disposi- tion of the testator's property by the will of February, 1853, was as inconsistent with his repeated declarations, as proved, as is the disposition made of his property by this codicil. All his children had been advanced from time to time in real estate, except his son John ; and whether John gets more by the codicil than some of the other children received by advancements, is a matter of doubt and dispute. I think that l^ie competency of the testator is established, and that the allegation of undue influence is not proved. The codicil was executed with all the formalities required by law, and is en- titled to be admitted to probate. 5. Scrihner v. Crane, 2 Paige's Reports, 147. 1830. "We insert this case here, both on account of its bearing upon testamentary capacity, and the mode of proving it, and also for the clearly expressed opinion of so distinguished a judge, in regard to the duty of witnesses to the execution of wills comprehending more fully the real nature of the transaction in which they are thus taking part. It is not, as the learned judge sufi&ciently inti- mates, the mere witnessing of the execution of the instrument by afiixing the testator's signature, as in the case of a deed, or will, where the attestation by the witnesses implies nothing more than that they were present, at the time of, and saw the execution by the maker of the instrument. The attestation, by witnesses, of the execution of a will by the testator, is a sort of judicial authentica- tion of the instrument, and implies not only that the witnesses were present, and knew of the execution of it by the testator, but also that he was in such a state of mind as to do it understand- ingly. It is certain that there could be no difference of opinion in regard to the impropriety, and even criminality, of a person putting his name as a witness to the execution of a deed or note, when, in fact, he only knew of its execution by mere hearsay. Why, then, 138 TESTAMENTARY CAPACITY. it may be asked, should the attestation of a will by a witness, ignorant or unassured of one of the most essential facts authenti- cated by such attestation, be regarded as any less improper or fraudulent than if he were equally unassured of the main fact of execution by signing by the testator ? We believe it can only be explained, how any such difference of view could be entertained in regard to the two cases, by the general supposition that the wit- nesses to a will do not certify to the mental competency of the tes- tator to do the act. And yet there is no point in the law of wills more clearly settled, than that the witnesses to a will do impliedly so certify ; although some very able opinions hold otherwise. See Baxter v. Abbott, ante, p. 8. No one should subscribe his name, as witness to a will, withojpt satisfying himself of the fact that the testator understands what he is doing. The testimony of a subscribing witness to the will, who did not do this, is of no value upon that point. His attestation " certifies to his knowledge of the mental capacity of the testator, and that the will was executed by him freely and understandingly, with a full knowledge of its contents." Opinion of the court by — Walworth, Chancellor. I think the weight of evidence in this case is decidedly against the capacity of the testatrix to make a will at the time her mark was made to the instrument propounded by the appellant. Independent of that testimony there is no sufficient evidence of the due execution of the instrument. The paper pro- pounded appears to have been drawn by the executor, who was attending physician of the decedent, and at the house of the prin- cipal legatee named in the will. The appellant is one of the sub- scribing witnesses, and Half and Losee are the others. The two latter alone were examined. All they knew in respect to it is that they were called in by the appellant, and found the old lady, then nearly ninety years of age, lying on the bed helpless. A paper was produced, said to be her will. Scribner put a pen into her hand and gmded the hand to make her mark to the paper, and then subscribed his own name as a witness ; after which Hafif and Losee subscribed theirs. One of the witnesses says the decedent acknowledged the will ; the other says that she merely nodded assent as she lay in her bed. The will was not read to her DUTY OF ATTESTING WITNESSES TO WILL. 139 in the presence of either of these witnesses, and nothing was said as to the contents thereof. One witness says no conversation was had with her to ascertain tlie state of her mind ; that she was in the lowest state of life and human existence, and that she did not articulate any expression which he distinctly understood. The other witness says he has no doubt of the soundness of her mind, because he asked her how she did, and she said she was very weak and distressed. It is pretty evident that neither of these two witnesses had suffi- cient evidence of the mental capacity of the decedent, or that she knew what she was doing, to justify them in putting their names to this paper as witnesses. They both swear they relied partially, if not entirely, on the declarations of Scribner as to her capacity. They probably had no intention of doing any thing wrong, but it was in fact a fraud upon those whose rights are affected thereby to place their names to a testamentary paper under such circum- stances. No person is justified in putting his name as a subscrib- ing witness to a will, unless he knows from the testator himself that he understands what he is doing. The witness should also be satis- fied, from his own knowledge of the state of the testator's mental capacity, that he is of sound and disposing mind and memory. By placing his name to the instrument, the witness, in effect, certifies to his knowledge of the mental capacity of the testator ; and that the will was executed by him freely and understandingly, with a full knowledge of its contents. Such is the legal effect of the signature of the witness when he is dead, or is out of the jurisdic- tion of the court. Neither of these witnesses had sufficient knowl- edge on the subject to give legal evidence of the due execution of his will. The surrogate was, therefore, perfectly right in pronounc- ing for an intestacy ; and his sentence and decree must be affirmed with costs. The respondents may have execution for their costs on the appeal out of this court. But a certificate of the decree of affirmance. must be sent to the surrogate, so that he can proceed and grant admin- istration of the decedent's property and effects to such person as may be entitled to the same. We do not expect to be able to restore the office of the attestation of the subscribing witnesses to a will to its former healthy state. The law, upon all questions, must conform, in some degree, to existing usage and custom, however unwise we may deem it. And the fact that most men execute their wills in the 140 TESTAMENTARY CAPACITY, most informal manner, away from their dwellings, in the offices of attorneys, calling the first persons they can find to witness them, must, in a great degree, deprive the attestation of all judicial character. Formerly wills were prepared- with great care, by giving formal instructions to solicitors, and designating the persons who were to act as witnesses, some near friends more commonly, and always such as were well acquainted with the testator and his family. The actual execution of one's will, under such circumstances, became a very solemn act, — somewhat in the nature of a religious rite, like a baptism or burial. It was then very proper to regard the formal attestation by the witnesses as a sort of judicial authentication, much like probate in common form. At that time a witness who attested the execution of a will, and then testified to the incompetency of the tes- tator, was regarded much in the light of a perjured person. But noi* this is every day's occurrence, without exciting any surprise or rebuke. We cannot but feel that the old practice was the better one ; but we do not well see how it is to be restored, except by statute, and statutes are not so likely to be enacted in order to revive obsolete usages as to inaugurate new ones. We shall not attempt to enter into any extended discussion of the propriety of allowing unprofessional witnesses to express opinions in regard to the apparent naturalness and mental soundness indicated by the general appearance and con- duct of such persons as they have had opportunity to observe, and whose state of mind is the subject of judicial inquiry ; nor shall we attempt to compare the weight of the opinion of intelligent witnesses of this character, who have been familiar for a long period of time with the persons whose state of mind is under consideration, with the opinion of professional experts, who know nothing of the case except what they learn from the testimony of others during the trial. We have sufficiently expressed our own views upon these questions in the first part of Wills. But we venture to give upon those questions the dissenting opinion of Mr. Justice Doe, of the Supreme Court of New Hampshire, in the case of State v. Pike, 11 Am. Law Reg. isr. s. 233 ; S. c. 51 New Hampshire Reports, 105, where the ques- tion is more thoroughly examined than anywhere else in the American Reports. " Witnesses, not experts, called by the defendant, were not allowed to tes- tify that, from their observations of his appearance and conduct before the alleged murder, they formed the opinion that he was insane. This testimony should have been received. ' ' In England no express decision of the point can be found, for the reason that such evidence has always been admitted without objection. It has been univer- sally regarded as so clearly competent that it seems no English lawyer has ever presented to any court any objection, question, or doubt in regard to it. . But in Wright V. Tatham, 5 CI. & Fin. 670, s. c. 4 Bing. N. C. 489, the question was involved in such a manner, and the number and strength of the judicial opinions were such as to make that case an authority of the greatest weight in favor of the competency of the evidence. " In addition to that case and the other English authorities cited in Boardman V. Woodman, 47 N. H. 144, are Lowe v. Jolliffe, 1 W. Bl. 365 ; Atttorney-Gen- eral V. Parnther, .3 Br. C. C. 441, 442; King u. Arnold, 16 St. Tr. 696, 706, 707, 708, 710, 711, 712, 713, 716, 717, 719, 723, 724, 726, 726, 727, 728, 730, 732, 736, 786, 737, 738, 739, 742, 746, 747, 748, 760,.761, 753, 754, 765, 756, OPINIONS BY UNPROFESSIONAL WITNESSES. 141 767, 758, 759, 760, 761, 762, 763 ; King v. Ferrers, 19 St. Tr. 885, 923, 924, 925, 926, 927, 928, 929, 980, 931, 932, 933, 937, 938, 939, 940, 941, 952, 953 King V. Frith, 22 St. Tr. 307, 313, 314, 315, 317 ; King v. Hadfield, 27 St. Tr 1281, 1299, 1301, 1304, 1305, 1330, 1331, 1332, 1337, 1347, 1350, 1363; King u, Bellingham, Ann. Reg. 1812, pt. 3, pp. 304, 307 ; King v. Bowler, Ann. Reg. 1812, pt. 3, pp. 309, 310; King v. Offord, Ann. Reg. 1831, pt. 2, pp. 107, 108 Queen v. Oxford, 9 C. & P. 525, 317, 318; s. c. in Ann. Reg. 1840, pt 2, pp. 249, 257, 259 ; 8. c. in 1 Townsend Mod. St. Tr. 102, 126, 132, 133 134, 136; Queen v. Higginson, 1 C. & K. 129, 130; Queen v. MeNagli- ten, Ann. Reg. 1843, pt. 2, pp. 345, 353, 354, 355, 356, 357; 8. c. in 1 Townsend Mod. St. Tr. 314, 347, 348, 349, 384, 385, 387, 388, 389, 390, 391, 392; Queen v. Dove, J. F. Stephen Cr. Law, 391, 394, 396, 396; Queen t). Mitchell, Ann. Reg. 1863, pt. 2, pp. 167, 159; Queen v. Townley, Ann. Reg. 1863, pt. 2, pp. 296, 302, 304; Queen v. Baker, Ann. Reg. 1867, pt. 2, pp. 217, 224. "The number of English authorities is limited only by the number of fully reported cases in whiuh the question of sanity has been raised. " The uniform rule in England from the earliest times to the present may be wrong, but on a common-law subject like this it is entitled to consideration. It should be set aside, and a new rule should be e.stablished if it can be clearly shown that all the authorities of the native land of the common law have been erroneous from the beginning, and in conflict with the principles of the common law, or that they are not applicable to our institutions or the circumstances of this country. But whoever asserts that such a condition exists has the task of maintaining the assertion, and that task on this question has never been performed. " In this country the authorities are almost equally unanimous in favor of the competency of the evidence. Lester v. Pittsford, 7 Vt. 168 ; Morse v. Crawford, 17 id. 499 ; Clifford v. Richardson, 18 id. 620, 627 ; Cram v. Cram, 33 id. 16 ; Crane v. Northfield, id. 124; Cavendish v. Troy, 41 id. 99, 108; Grant v. Thompson, 4 Conn. 203; Kinne v. Kinne, 9 id. 102; Dunham's Appeal, 27 id. 192; Swift's Ev. Ill ; Stewart v. Lispenard, 26 Wend. 291, 308, 309; Culver V. Haslam, 7 Barb. 314; De Witt v. Barley, 13 id. 550; s. c. 9 N. Y. 371; s. c. 17 id. 340 ; Delafield v. Parish, 25 id. 37, 88 ; Clapp v. FuUerton, 34 id. 190; Clark v. Sawyer, 3 Sandf. Ch. 357; Den v. Gibbons, 2 Zab. 117, 135, 136 ; Whitenack v. Stryker, 2 Green Ch. 278. In the matter of Vanauken, 2 Stock. Ch. 192 ; Turner v. Cheesman, 16 N. J. Ch. 243 ; Garrison v. Gar- rison, id. 266 ; Rambler v. Tryon, 7 S. & R. 90, 92 ; Irish v. Smith, 8 id. 573, 676; Wogan v. Small, 11 id. 141, 144; Grabill v. Barr, 6 Penn. St. 441, 443; Wilkinson v. Pearson, 23 id. 117, 120; Brick'er v. Lightner, 40 id. 199; Duffield u. Morris, 2 Barring. (Del.) 376, 377, 386; Townsend v. Brooke, 7 Gill, 90 ; Stewart v. Redditt, 3 Md. 67, 78 ; Stewart v. Spedden, 5 id. 433, 446; Dorsey v. Warfield, 7 id. 65, 73; Weems v. Weems, 19 id. 384, 346; Taylor v. Temple, 1 Hen. & Munf. 476, 478 ; Burton v. ^cott, 3 Rand. 899, 403, 404, 405 ; Clary v. Clary, 2 Ired. 78 ; Heyward v. Hazard, 1 Bay, 355, 340, 341, 342, 343, 344; Griffin v. Griffin, R. M. Cbarlt. 217, 218, 220, 221, 223; Potts V. House, 6 Ga. 324; Berry v. State, 10 id. 510, 529; Walker V. Walker, 14 id. 242 ; Roberts v. Trawick, 18 Ala. 68, 84 ; Norris v. State, 142 TESTAMENTARY CAPACITY. 16 id. 776; Floi-ey w. Florey, 24 id. 241, 247; Powell v. State, 26 id. 21; Stubbs V. Houston, 33 id. 555, 564; In re Carmichael, 36 id. 614, 522; Gibson V. Gibson, 9 Yerg. 329 ; Baldwin v. State, 12 Mo. 223 ; Farrell v. Bren- nan, 32 id. 328 ; Kelly v. McGuire, 15 Ark. 666, 601 ; Abraham v. Wilkins, 17 Ark. 292, 822 ; State v. Gardiner, Wright, 392, 398 ; Clark v. State, 12 Ohio, 483, 490; Doe v. Reagan, 5.Blackf. 217 ; Roe v. Taylor, 45 111. 485; Pela- mourges v. Clark, 9 Iowa, 1, 11-19, 29 ; State v. Felter, 25 id. 67 ; White ». Bailey, 10 Mich. 155, 161 ; Beaubien v. Cicotte, 12 Mich. 469, 495-508 ; Case of Lawrence, tried in the District of Columbia, before Judge Granch and two other judges, for shooting at President Jackson, 48 Niles' Reg. 119; Hoge V. Fisher, Pet. C. C. r63, 165 ; Harrison v. Rowan, 3 Wash. C. C. 680, 582, 686. " On the other side there are authorities in Maine, Massachusetts, and Texas, which hold a contrary doctrine ; but on examination they are found to occupy very feeble positions. " So far as the history of the law on this subject has been brought to the notice of this court, the first time the competency of this evidence was doubted was in the jury trial of a probate case at Cambridge, Mass., in 1807. The only account we have of that affair is the report of Mr. Tyng, who says that the court per- mitted the subscribing witnesses to the will to give their opinions of the sanity of the testator, and that ' other witnesses were allowed to testify to the appearance of the testator and to any particular facts from which the state of his mind might be inferred, but not to testify merely their opinion or judgment.' Poole v. Richardson, 3 Mass. 330. From the conspicuous and emphatic use of the word ' merely,' and from what occurred in subsequent Massachusetts cases, there is reason to suspect that the only point ruled in this case was, that the witnesses were allowed to give their opinions when they stated the particular facts from which the state of the testator's mind was inferred by them, ' but not to testify merely their opinion or judgment.' They ' were allowed to testify to the appearance of the testator,' and they could not do that without giving their opinions. It was a ruling made hastily and probably instantaneously, without argument, during a trial before a jury at a time when the hurry of clearing the crowded dockets of Massachusetts gave no opportunity for deliberation. " If the court had been aware that this ruling overturned all the authorities and the uniform practice of England and America from the beginning of the common law to that day, it is not to be presumed that the ruling would have been made without a formal opinion, reduced to writing by some member of the court, for- mally delivered and formally reported, giving some reason for the innovation. If they had been conscious of the novel and revolutionary character of the prece- dent, they would not have introduced it so summarily and inconsiderately. " This was not the only mistake made at Nisi Prius. In the previous month, in the trial of another probate case, when the only issue was upon the sanity of a testator, and the formal execution of the will was therefore not in question, the court refused to allow two of the subscribing witnesses of the will to testify beqause the third witness was not produced. Chase u. Lincoln, 3 Mass. 236. Nor are these the only peculiarities in the precedents of that State. At the trial of another probate case the physicians who. attended the testatrix in her last sickness were asked whether, in their opinion, she was sane. Objection was OPINIONS OP UNPROFESSIONAL WITNESSES. 143 made to the competency of any opinion. The court ruled that the attending physicians might give their opinions, but state the particular circumstances or symptoms from which they drew their conclusions. Halhorn v. King, 8 Mass. 371. And in Dickinsons. Barber, 9 id. 225, it was held on that ground that certain depositions of physicians had been rightly excluded. In Commonwealth V. Rich, 14 Gray, 335, 337, it was held, as matter of law, that a physician of thirty years' practice, who had testified that he had made the subject of mental disease a study, but not a special study, and had had the usual experience of practising physicians on the subject, could not be questioned upon a hypothetical case stated in the usual manner. These cases show a peculiar and exceptional system of practice on these subjects which has never prevailed in this State. " In Buckminster v. Perry, 4 Mass. 593, ' two or three witnesses were of opin- ion that the testator was much broken and very forgetful about the time the will was made.' Instead of rejecting this evidence, the court charged the jury ' that the evidence given by the appellants to invalidate the will deserved but little consideration.' In Needham v. Ide, 5 Pick. 510, the jury were instructed that the ' mere opinions of other witnesses ' than those who subscribed the will ' were not competent evidence, and were not entitled to any weight, further than they were supported by the facts and circumstances proved on the trial.' These witnesses gave their opinions ' without being asked ; ' objection was not made to their opinions ; their opinions were not rejected at the time they were given, nor absolutely excluded from the consideration of the jury by the charge of the court. But in Commonwealth v. Wilson, 1 Gray, 337, 339 ; at Nisi Prius, in Hubbell v. Bissell, 2 Allen, 196, 200, by a dictum; and in Common- wealth V. Fairbanks, id. 511, in a per curiam decision, — it was held that the incompetency of the opinions of non-experts was not an open question in Massa- chusetts. The court merely refused to investigate the question. In this abrupt and unsatisfactory manner, without any consideration from first to last, has this exception become established in that State. Of the four judges reported as pres- ent at the October term, 1807, at Cambridge, we do not know who were present at the trial of Poole v. Richardson. The next year, at Cambridge, when Ch. J. Parsons charged the jury in Buckminster v. Perry, witnesses were allowed to testify that, in their opinion, ' the testator was much broken and very forget- ful ; ' and this evidence was not excluded from the consideration of the jury. In Needham v. Ide no opinion of the court is reported; but the reporter says that the court overruled an objection taken to the instruction given to the jury that the mere opinions ' were not entitled to any weight further than they were sup- ported by the facts and circumstances proved on the trial.' After that, at Nisi Prius, and in a dictum, and in a. per curiam decision, the court held themselves concluded by their own precedents. " The only judge in Massachusetts who appears to have deliberated on the sub- ject gave his judgment against the peculiar practice of that State. In Baxter v. Abbott, 7 Gray, 71, 79, Judge Thomas says: 'AH lawyers know how difficult it is to try issues of sanity with the restrictions as to matters of opinion already existing; how hard it is to make witnesses distinguish between matters of fact and opinion on this subject ; between the conduct and traits of character they observe and the impression which that conduct and those traits create, or the mental conclusion to which they lead the mind of the observer. If it were a new 144 TESTAMENTARY CAPACITY. questiori, I should be disposed to allow every witness to give his opinion subject to cross-examination, upon the reasons upon which it is based, his degree of intelligence, and his means of observation.' "The counties of Massachusetts which became the State of Maine thirteen years after the exception was introduced in Poole v- Richardson, did not aban- don their practice on that point, as they did not abandon the general system of practice which had grown up with them while they were a part of Massachusetts. For thirteen years the exception had the same authority, and was administered by the same court in Essex and in York. As it was never examined in Mas- sachusetts on the south, so it has never been examined in Massachuetts on the east. Ware v. Ware, 8 Greenl. 42, 64, 65, 56 ; Wyman v. Gould, 47 Me. 159. It is equally regarded in both as an inherited peculiarity for which no one is responsible. Its position as an authority was not materially strengthened by the division of the State. " In Gehrke v. State, 13 Texas, 568, it was summarily held, without any citation of authority or consideration of principle, that it would have been improper to receive as evidence the vague, indefinite expression of a witness that the prisoner looked like or acted as an insane person. ' ' Thus stand the precedents of other jurisdictions at present, so far as they have been brought to the notice of this court : Massachusetts, Maine, and Texas, on one side, the rest on the other ; and no attempt in either of the three States to justify their peculiar exception. If this amounts to a conflict among the author- ities, it must be regarded as inconsiderable. " In many of the cases in which the opinions of ordinary witnesses have been received, the question has been fully considered, and their competency established on solid ground. ' Testimony of opinion may be given where, from the general and indefinite nature of the inquiry, it is not susceptible of direct proof. Thus upon a question of insanity, witnesses not professional men may be permitted to give their opinion in connection with the facts observed by them. But this evi- dence is always confined to those who have observed the facts, and is never per- mitted where the opinion of the witness is derived from the representation of others. Upon a question of insanity, for instance, witnesses who have observed the conduct of the patient, and been acquainted with his conversation, may tes- tify to his acts and sayings, and give the result of their observation ; but where mere opinion is required upon a given state of facts, that opinion is to be derived from professional men.' Lester v. Pittsford, 7 Vt. 168, 161. ' The law is well settled, and especially in this State, that a witness may give his opin- ion in evidence in connection with the facts upon which it is founded, and as derived from them, though he could not be allowed to give his opinion founded upon facts proved by other witnesses.' Morse v. Crawford, 17 Vt. 499, 502. ' Where mere opinion is required upon a given state of facts not connected with the personal observation of the witness, that opinion is to be received from pro- fessional men alone.' Cram v. Cram, 33 Vt. 16, 18. These extracts are a sufficient answer to the objection made against some of the authorities, that they require the witness to state facts as well as opinion. The objection is as invalid as it would be if made against the admission of opinions as to physical health. A witness cannot testify that in his opinion the defendant was sick or well with- out first showing that he had an opportunity of forming an opinion from facts OPINIONS OF UNPROFESSIONAL WITNESSES. 145 observed by himself. If a witness not an expert is first asked wliether, in his opinion, A. was sane or insane at a certain time, the witness would not be allowed to answer the question. It must first appear that his opinion is formed' upon his own observations, and not upon the testimony of other witnesses, or upon hearsay, or upon a hypothetical case. If his opinion is formed upon the testimony of other witnesses, the jury have as good an opportunity as the witness to form an opinion ; jf it is formed upon hearsay, it is mere indirect proof of hearsay ; of a hypothetical case the jury can form an opinion as well as a non- expert witness. But if the opinion of the witness is formed upon his own obser- vations, he had a better opportunity to form an opinion than the jury can have from a description of the acts and words of the person whose sanity is in ques- tion, because such a description cannot generally convey any adequate idea of the signs of sanity or insanity as they appear to an observer. It is necessary, as far as possible, that the impression produced by the acts and words should be conveyed to the jury, and it cannot generally be conveyed by a mere description or recital of them ; therefore the opinions of observers constitute one of the classes of testimony known in law as the best evidence ; not the best because it happens to be the only available evidence in a particular case, but the best because it belongs to one of the best species of evidence usually available, — the best in the nature of things, — the best by reason of ' the general and indefinite nature of the inquiry, and the difficulty of producing direct proof of a mere men- tal condition.' Crane v. Northfield, 33 Vt. 124, 126. ' The best testimony the nature of the case ad.uits of ought to be adduced ; and on the subject of insanity, in my judgment, it consists in the representation of facts and of the impressions which they made.' Grant v, Thompson, 4 Conn. 203. " ' The judgment which we form as to the mental condition of an acquaintance depends as much upon his looks and gestures, connected with his conversation and conduct, as upon the words and actions themselves, and yet it would be a hopeless task for the most gifted person to clothe in language all the minute par- ticulars with their necessary accompaniments and qualifications which have led to the conclusion which he has formed.' Benio, J., in De Witt v. Barley, 9 N. Y. 371, 389, 390. No mere description of the wrinkles of the face, of the tone of the voice, or the color of the hair, would be likely to convey any very accurate impression as to the precise age of the person described. The case of McKee v. Nelson, 4 Cow. 365, is an example belonging to the same class. That was an action for breach of promise of marriage, and a witness who knew the plaintiff, and had observed her conduct and deportment toward the defendant, was per- mitted to testify whether in her opinion the plaintiff was sincerely attached to him, — a fact which it is plain could be proved in no other way. Trelawney u. Colinan, 2 Stark. 191, is another case of the same kind. There, in an action for criminal conversation, a witness who was acquainted with the parties was per- mitted to give her opinion as to the degree of affection entertained by the wife for her husband. . . . ' To me it seems a plain proposition that, upon inquiries aff to mental imbecility arising from age, it will be found impracticable in many cases to come to a satisfactory conclusion without receiving to some extent the opinions of witnesses. How is it possible to describe in words that combination of minute appearances upon which a judgment in such cases is formed ? The attempt to try such a question, excluding all matter of opinion, would, in most 10 146 TESTAMENTARY CAPACITY. cases, I am persuaded, prove entirely futile. ... A witness can scarcely convey any intelligible idea upon such a question without infusing into his testimony more or less of opinion. Mental imbecility is exhibited in part by attitude, by gesture, by the tones of the voice, and the expression of the eye and the face. Can these be described in language so as to convey to one not an eye-witness an adequate conception of their force ? ... It certainly strikes me that few ques- tions can be suggested, about which it is possible to raise a doubt, which are more conclusively settled by authority than that under consideration. . . . This court itself, since the former decision in this case, has, upon a question strictly analogous, unanimously established a different rule. I refer to the case of The People V. Eastwood, 14 N. Y. 662. Upon the trial of that case, a witness was asked whether at the time of the homicide the prisoner was intoxicated. This question was objected to and excluded upon the ground that it called for the opinion of the witness. Exception was taken to this ruling, and upon that exception the case was brought to this court, where it was unanimously held that the evidence ought to have been received, and a new trial was granted for that among other reasons. The admissibility of the evidence was there placed upon the precise ground which has been assumed here; viz., that the appear- ances which indicate intoxication cannot be so perfectly described in words as to enable persons not eye-witnesses to judge with accuracy on the subject. The questions in that case and in this are in principle identical, and opinions cannot be held inadmissible in the present case without virtually overruling that of East- wood.' De Witt V. Barley, 17 N. Y. 340, 344, 348, 350, 352. " ' A witness may state facts, may give the look of the eye, and the action of the man, but unless he is permitted to express an opinion, he cannot convey to the mind distinctly the condition of the man that such acts and looks portray.' In the matter of Vanauken, 2 Stock. Ch. 186, 192. How can a witness ' give the look of the eye ' without giving an opinion ? ' The opinion of a witness as to the sanity of a person depends for its weight on the capacity of the witness to judge, and his opportunity.' Burton v. Scott, 3 Kand. 399, 403. ' And so it is in regard to questions respecting the temper in which words have been spoken or acts done, — were they said or done kindly or rudely, in good humor or in anger, in jest or in earnest ? What answer can be given to these inquiries, if the observer is not permitted to state his impression or belief? Must a, facsimile be attempted so, as to bring before the jury the very tone, look, gestures, and manner, and let them collect thereupon the disposition of the speaker or agent? . . . Unquestionably, before a witness can be received to testify as to the fact of capacity, it must appear that he had an adequate opportunity of observing and judging of capacity. But so different are the powers and the habits of observa- tion in different persons, that no general rule can be laid down as to what shall be deemed a sufficient opportunity of observation, other than it has, in fact, enabled the observer to form a belief or judgment thereupon. So it is in the analogous case of handwriting. If a witness declares that he has seen the party write, whether it has been once only or a thousand times, this is enough to intro- duce the inquiry, whether he believes the paper produced to be the party's hand- writing. His belief is evidence, the weight of which must depend upon a consideration of all the circumstances under which it was formed.' Clary v. Clary, 2 Ired. Law, 78. Judge Redfidd says of the decision, in Clary v. Clary : OPINIONS OP UNPROFESSIONAL WITNESSES. 147 * ' The learned judge shows with great ability and abundant success, in our judg- ment, that the rule here adopted is the only one consistent with principle.' 1 Redfield on Wills, 143, n. 16. " ' A careful daily observer of a person feigning madness would witness innu- merable acts, motions, and expressions of countenance, which, with the attending incidents and circumstances, would conclusively satisfy him of the fictitious char- acter of the pretended malady, but which he could never communicate to a jury or scientific man, so as to give them a fair conception of their real importance. From poverty of language, these facts, should a> witness attempt to detail them, would necessarily be mixed up with opinions general or partial, in spite of his best efforts to avoid it. There are things well known to all persons, which our language only enables us to express by words of comparison, — such are the peculiar features of the face indicating an excitement of the passions, affections, and emotions of the mind, as hope, fear, love, hatred, pleasure, pain, &c. Testimony affirming the existence or absence of either of these is but a matter of opinibn. So the statement of the fact that a man's whole conduct is natural is but the opinion of the witness, formed by comparing the particular conduct spoken of with the acts of the past life of the individual. It would hardly be claimed that such evi- dence should be excluded, yet it is equivalent to an opinion that the person is sane.' Clark ». State, 12 Ohio, 490. It must appear that ' the facts upon which it is based have come under his own observation.' Doe v. Reagan, 5 Blackf. 217. The subject is fully considered in Beaubien v. Cicotte, 12 Mich. 459, 496-508, and other cases. " Objection has been made to some of the cases in which it has been said that mere opinions were slight evidence. This has been said in some chancery cases, in which the judge, passing upon fact as well as law, has expressed his opinion of the weight of certain testimony as a matter of fact within his power to decide. In other cases tried by jury, judges have expressed their opinions of the weight of this evidence as they were accustomed to express their opinions of the weight of other evidence. The practice, having been firmly fixed and universal, has often been as visible in the decisions of the court as in summing up the evidence to the jury. It embraces all evidence alike, and has no bearing upon the com- petency of particular testimony, which is the point now before us. The practice is obsolete in this State ; but it is settled by authority that, at common law, the judge may give the jury his opinion of the weight of any part or of the whole of the evidence, with this limitation, that he is not to give such opinion as impera- tive upon the jury ; they are to understand that they are the judges of the facts. 2 Hale's Hist. Com. L. 147 ; King v. Fisher, 1 St. Tr. 395, 402 ; King v. Chand- ler et at., 6 St. Tr. 687, 700; King v. Reach, 6 St. Tr. 701, 706, 709; King V. Green et al., 1 St. Tr. 169, 214, 216, 216, 217, 218, 219 ; Kings. CoUedge, 8 St. Tr. 660, 713, 726 ; King v. Hardy, 24 St. Tr. 1362, 1363, 1383 ; Brembridge V. Osborne, 1 Stark. 374; Petty ». Anderson, 3 Bing. 170, 171, 172, 173; So- larte ». Melville, 7 B. & C. 430, 435 ; Davidson v. Stanley, 2 M. & G. 721 ; Calmady w. Rowe, 6 M., G. & S. 861, 893; Doe u. Strickland, 8 id. 743; Pen- nell V. Dawson, 18 Com. B. 366, 370; s. c. 36 Eng. L. & Eq. 431, 440; Attor- ney-General e. Good, McClel. & Y. 286 ; Sutton o. Sadler, 3 Com. B. k. s. 87, 98, 101, 103 ; Queen «. Townley, Ann. Reg. 1863, pt. 2, pp. 306-309 ; Duberlyo. Gunning, 4 T. R. 661, 662; Tyrwhitt ». Wynne, 3 B. & Ad. 556, 148 ' TESTAMENTARY CAPACITY. 560, 561 ; Rex v. Burdett, 4 id. 131, 167, 1 Am. L. Rev. 59 ; Carver v. Jack- son, 4 Pet. 1, 80 ; Garrard v. Reynolds, 4 How. (U. S.) 123 ; Harrison v. Rowan, 3 Wash. C. C. 580 ; Phillips v. Kingfield, 19 Me. 375 ; Cunningham v. Batch- elder, 32 id. 316 ; Nutting v. Herbert, 37 N. H. 346, 366 ; Buckminster u. Perry, 4 Mass. 593, 694 ; Commonwealth v. Child, 10 Pick. 252, 266 ; Curl v. Lowell, 19 id. 25 ; Davis v. Jenney, 1 Met. 221 ; Whiton v. O. C. I. Co., 2 id. 1 ; Eddy V. Gray, 4 Allen, 435 ; State v. Lynott, 5 R. I. 296 ; F. B. Church v. Rouse, 21 Conn. 160, 167 ; N. Y. F. I. Co. v. Walden, 12 Johns. 513 ; Gardner v. Picket, 19 Wend. 186 ; Lansing v. Russell, 13 Barb. 521 ; Hunt v. Benett, 4 E. D. Smith, 647 ; Bulkeley v. Ketellas, 4 Sandf. 450 ; Grove v. Donaldson, 15 Penn. St. 128 ; Oyster v. Longnecker, 16 id. 269 j Stoddard v. Mcllwain, 7 Rich. 525 ; Still v. Glass, 1 Ga. 475. ' ' What was the New Hampshire rule as to the competency of the evidence before the decision of Boardman v. Woodman ? " In May, 1811, State v. George Ryan was tried in Cheshire, before Livermore, C. J., and Steele, J. The Attorney-General appeared for the State, and Cham- berlain, Hubbard, and Vose, for the defendant. The defence was insanity. Of non-expert witnesses called by the State, one testified that, at the trial before the magistrate, the defendant ' wished an adjournment of his examination ; ap- peared to argue his motion for it like a man of understanding and discretion ; ' another testified that he ' had no idea from what he saw of the defendant . . . that he was any way deranged ; the prisoner then appeared to have the full use of his reason ; ' another testified that the defendant ' appeared to be perfectly in possession of his faculties ; ... no appearance of derangement.' Of non- expert witnesses called by the defendant, one testified that the defendant con- ducted on one occasion ' like a man without sense ; ' another testified that in the morning of a certain day, the defendant ' was perfectly rational ; in the afternoon, became wild ; ' another confirmed the last ; another testified that the defendant ' appeared rational.' Non-expert witnesses gave their opinions freely without objection, and it is evident that the counsel and the court understood such evi- dence to be competent. Judge Livermore, in summing up the testimony, par- ticularly named the witnesses, who, to use his own words, ' testify that in their opinion he had not the use of his reason.' Pamp. Report of State v. Ryan. "In State v. Farmer, tried in 1821, before Michardson, C. J., and Woodbury and Qreen, 33., a witness testified that the defendant had said he would kill the deceased. On cross-examination, he was asked if he thought the defendant in earnest, and he answered in the negative without objection. The charge of the court shows that it was understood that this evidence was competent. Pamp. Report of State v. Farmer. "In October, 1830, State v. Corey was tried in Cheshire, before Richardson, C.J., and Oreen and Harris, 33. Handerson, Wilson, and Chamberlain, the solicitor, appeared for the State, and Woodbury, Hubbard, and Joel Parker, for the defendant. The trial was reported by Joel Parker. The defence was insan- ity. The first witness called for the defence was the defendant's brother, not an expert. He was asked if his father was sane. ' The solicitor objected to the question, and cited Poole et al. v. Richardson, 3 Mass. 330, and other authorities to show that the opinion of the witness could not be received in evidence.' What the ' other authorities ' were we know only from the fact that at that time OPINIONS OP UNPROFESSIONAL WITNESSES. " 149 there were no such authorities in the world outside of the original territory of the State of Massachusetts, — the slight extension of the peculiar practice of Massachusetts beyond that territory being a very recent affair. Notwithstanding the objection, explicitly urged and supported by Massachusetts precedent, Corey's brother was allowed to testify, ' his father is crazy,' and his sister ' is wild as a hawk.' At least six other non-expert witnesses testified to their opinions that various relatives of the defendant had been insane. One testified that the defendant was not insane at the time in question. One testified that the defend- ant looked and acted like a crazy person. The court asked one witness if the defendant, on a certain occasion, appeared rational, and received an affirmative answer. Many non-expert witnesses, on the part of the State, testified that they had known the defendant, and had never known of his being insane. One testi- fied there ' was one time when he saw him out ; cannot say whether he had been drinking or not.' Several testified that they had ' never known of his being deranged except from Uquor.' We are informed by the reporter of the case that his report of the charge given to the jury by Judge Richardson was submitted to and revised by Judge Richardson himself before publication. The charge shows that it was not doubted that the opinions were competent. Judge Richardson expressly said that the opinions formed the day before the homicide, by per- sons in a situation which enabled them to judge, were ' entitled to great weight.' " Here was the first attempt made to introduce into this State the Massachusetts exception, which was then twenty-three years old ; the total failure of the attempt, the citation, consideration, and rejection of the Massachusetts cases, the admis- sion of the opinions, the question put to one of the witnesses by the court, and the declaration of Judge Richardson that the opinions formed the day before the homicide were entitled to great weight, notwithstanding the Massachusetts authorities cited to show they were not admissible, render this a case of the very highest authority. To cite the Massachusetts cases, as in conflict with State V. Corey, is, in this State, as unavailing as it would be to cite Gregg v. Wyman, 4 Cush. 332, as in conflict with Woodman v. Hubbard, 25 N. H. 67, 76, 77, where Gregg v. Wyman was held not to be law. The cases in Maine, as we have seen, cannot be regarded as any thing else than Massachusetts authority. And thus all existing precedents which have been cited from other jurisdictions, as in conflict with State v. Corey, are disposed of, except the Texas case. As no authority was cited, and no ground stated for the decision of the latter case, we could not be expected to follow it, and to overthrow the overwhelming mass of English and American authorities, including those of our own State, without some urgent reason for so doing. " At the August term, 1832, in Rockingham, held by Judge Oreen and Judge Harris, the case of Hamblett v. Hamblett was tried. The appellee ' offered in evidence the deposition of Mary Palmer, in which she testified, among other things, that on the day of the execution of the will she was at the house of the testator, and that " his discourse was satisfactory to her." To this part of the testimony the appellant objected. The evidence was admitted ; but the court, in their instructions to the jury, directed them not to rely upon any evidence of opin- ion as to the sanity or insanity of the testator, except what was derived from the testimony of the subscribing witnesses to the will.' Questions raised at the trial 150 TESTAMENTABT CAPACITY. were decided December, 1833, when the court consisted of Bichardson, Qreen, Parker, and Upham. Judge Parker, delivering the opinion of the court, said that the whole force and effect of some of the evidence relating to certain per- sons was ' to show their opinions that the testator was sane. ... It could be used only to show that they treated the will as valid and binding on them, and that the inference, therefore, was, that they were heretofore of opinion' that the sanity of the testator could not be questioned. In this view, it would seem to stand upon the same ground as the matter which forms another objection on the part of the appellant, which is to the admission of the testimony of Mary Palmer, that she had a conversation with the testator on the day of the execution of the will, and that " his discourse was satisfactory to her." This is wholly immaterial, unless it be as evidence of the opinion of the witness that the testator was sane. But the case finds that the judge expressly directed the jury not to rely upon any evidence of opinion as to the sanity or insanity of the testator, except what was derived from the testimony of the subscribing witnesses to the will. On the supposition that this testimony of Mary Palmer to matter of opinion, or, rather, to matter from which her opinion of sanity is to be inferred, was incompetent, — which is not conceded, if sufficiently connected with facts, — the question arises whether this furnishes any ground for a new trial, the court having thus di- rected the jury.' " After deciding that question, and holding that if the evidence had been incom- petent, the exclusion of it, after it had been received, would obviate the objec- tion made to its admission. Judge Parker said : ' As to the direction of the judge, relative to evidence of opinion, it may be proper to remark that we do not intend to be understood as establishing this as the rule. The weight of authority seems to be in favor of admitting the opinions of others' than the witnesses to the will, if connected with evidence of the facts upon which those opinions are founded. 3 Stark. Ev. 1707, in notes ; Grante v. Thompson, 4 Conn. 203 ; vide also Hathorn v. King, 8 Mass. 371 ; Buckminster v. Perry, 4 id. 694; Lowe v. JoUiffe, 1 W. Black. 365. It remains to be considered, whenever the question shall directly arise, whether this is not the most eligible and proper course in questions of this nature ; but upon this matter it is not now necessary to make a decision.' Hamblett v. Hamblett, 6 N. H. 334, 336, 344, 349. This is a strong intimation that the doctrine of State v. Corey had not been, and was not likely to be, abandoned. " In September, 1834, State v. Prescott was tried, in Merrimack, before Judge Bichardson and Judge Parker. George Sullivan, Attorney-General, and John Whipple, Solicitor, appeared for the State ; Ichabod Bartlett and Charles H. Peaslee, for the defendant. The defence was insanity. A large number of non- expert witnesses testified to their opinions of the sanity or the insanity of the defendant and some of his relatives ; and no objection was made to the compe- tency of the opinions. The case was sharply and strenuously contested on each side ; it was tried according to the strict rules of law as then understood ; the distinguished counsel on both sides insisted upon a rigid observance of those rules ; they waived no objection that occurred to them ; nothing was yielded to courtesy, convenience, or humanity ; in no case tried in this State since that time has there been a greater display of zeal, acuteness, and power, on the part of counsel. It is reasonably certain that if it had been supposed to be doubtful OPINIONS OF UNPROFESSIONAL WITNESSES. 151 whether the opinions of non-experts were admissible, objection would have been made to them. Those opinions were argued by the counsel, and considered by the court and jury as evidence ; and there is no reason to suspect that any one engaged in the trial thought they were not evidence. " In addition to these precedents, we know, upon the most authentic informa- tion, that, down to the time when Judge Parker left the bench, in 1848, he did not understand that the early New Hampshire practice, with which he had been familiar in State w. Corey and State v. Prescott, and of which he had expressed his approval in Hamblett v. Hamblett, had been abolished, and the contrary Massachusetts practice established in its place. After the delivery and publica- tion of his opinion, in Hamblett v. Hamblett, it is not probable that he would assent to a silent reversal of the doctrine of State v. Corey, or allow it to be reversed, without some reason for or against the innovation being put on record. " This brings us down to a recent period. Whatever uncertainty there is has arisen since Judge Parker presided in this court. In 1848, when he retired from the bench and removed from the State, the decision in Texas had not been made, but the Massachusetts exception had been disapproved in Hamblett v. Hamblett, and rejected in State v. Ryan, State v. Corey, and State v. Prescott. Down to 1848, there is no doubt that the doctrine of Poole v. Richardson was not the law of this State. This is a matter as to which we have dates. The doctrine of Poole V. Richardson was not brought from England with the body of the common law ; it was a ruling first made in this country in the present century ; it had not gained a foothold in this State twenty-one years ago, and was never recognized in our decisions until 1866. " After Judge Parker left the State, and before the trial of Boardman v. Wood- man, the question of sanity was tried in a few cases ; and so far as any practice can be said to have grown up in those few cases in those seventeen years, it grew into conformity to the Massachusetts exception. So far as it amounted to any thing, it was a silent, unauthentic growth, and it is very easily explained. No judge remained on the bench who had participated in the decision of Hamblett v. Hamblett, or in the trial of the early cases. The significant observations of Judge Parker, in Hamblett v. Hamblett, were not kept prominently before the profession by any head-note or digest. They were enveloped in a case of eighteen pages, and in a part of it not likely to be often if ever read ; they were entirely overlooked or forgotten. The pamphlet reports of State v. Ryan, State v. Corey, and State v. Prescott, were scarce, seldom if ever read, and substantially unknown ; and the surviving counsel, who had been engaged in those trials, were no longer on active duty at our bar, and had no occasion to' remonstrate ^^gainst the change of our practice. The Massachusetts exception prevailed in the territory adjoining us on the south and east. The Massachusetts Reports were used more than any others except our own. The legal treatises referring to this subject, in most common use among us, were written or edited by Massachusetts men, who were not aware that the doctrine of Poole v. Richardson was a peculiarity of their State, and who stated the Massachusetts exception to be the common law, as they erroneously supposed it was. Greenleaf on Evidence and Massachusetts editions of Jarman on Wills exercised a potent influence in the introduction of that great mistake. 1 Greenl. Ev. § 440 ; I Jarman on Wills, 77, Mass. ed. In the second 152 TESTAMENTARY CAPACITY. and subsequent Massachusetts editions of Jarman, the third chapter of the first vol- ume of the English edition was omitted, and a new chapter by the Massachusetts editor was inserted in its place. In the text of this new chapter the editor gives the peculiar local rule of Poole v. Richardson, as if it were common law. It was stated in the advertisement to the second edition that the editor had added this new chapter to the original text ; but the authorship of this chapter was very- likely to escape observation in the use generally made of the book. " There was one peculiarity in our practice which opened the way for the in- troduction of the Massachusetts exception. In 1826, when the court consisted of Bichardson, Oreen, and Harris, the case of Rochester v. Chester, 3 N. H. 349, was decided, in which Judge Bichardson, being an inhabitant of Chester, did not sit. It was there held that witnesses could not testify their opinions of the value of land. The decision of Oreen, J., and Harris, J., was reported. In Peterboro' V. Jafifrey, 6 N. H. 462, in which case Judge Parker did not sit, the exception introduced in Rochester v. Chester was followed ; it was then necessarily applied to sleds and all other property, and it continued in force (Low v. Railroad, 45 N. H. 370, 383) until its excessive inconvenience in practice could no longer be endured, and it was rescinded by the legislature. Gen. Stat. c. 209, § 24. After Judge Bell came to the bench the court were never unanimous against restoring the common-law rule which admitted opinions of the value of property, but, in accordance with the general usage, no dissent was publicly expressed. ' ' The exception introduced by Judge Oreen and Judge Harris in Rochester V. Chester was peculiar to this State ; it seems never to have prevailed anywhere else in the whole world. 1 Redfield on Wills, 137, pi. 3, c. ; Crane v. Northfield, 33 Vt. 126; Clark i>. Baird, 9 N. Y. 183; De Witt w. Barley, 17 id. 342, 343; Kellogg V. Krauser, 14 S. & R. 137, 142 ; Laney v. Bradford, 4 Rich. 1 ; Beaubien V. Cicotte, 12 Mich. 507. Not only was it a local peculiarity, it was a troublesome and mischievous one. Unless the jury could have a view of the property in question, they could not generally have satisfactory evidence of its value ; and if they could have a view of it, their information would generally have been greatly increased by the opinions of persons familiar with the property and with circum- stances affecting its value. It was unjust ; it often resulted in excessive, often insufficient damages. It was expensive and annoying; the parties were com- pelled to summon a greater number of witnesses than would have been necessary if their opinions could have been taken, and the process of obtaining from them such testimony as they were allowed to give, and excluding their opinions, was difficult and tedious. It was inconsistent with itself. Before the decision of Low V. Railroad, in 1864, witnesses were allowed to testify that other similar property had been actually sold for a certain price : Hackett v. B. C. & M. Rail- road, 35 N. H. 390, 392, 398 ; their statement of the similarity of property involved their opinion, as was suggested by Judge Wilcox in Whipple v. Walpole, 10 N. H. 131, and by Judge Parker in Beard v. Kirk, 11 id. 401. The witness, who was not permitted to say that he thought a certain horse was worth more or less than a thousand dollars, was permitted to give his opinion of the age, size, weight, form, speed, strength, endurance, health, appetite, docility, timidity, and general disposition of the horse. He was permitted to give his opinion on these points, because his statement of facts without opinion was not the best evidence ; and for the same reason the common law allows him to give his opinion OPINIONS OP UNPROFESSIONAL WITNESSES. 153 of the value. The great legal objection to Rochester v. Chester is, that it was a violation of the elementary rule of law which allows the best evidence to be given of which the case in its nature is susceptible. Opinions are the best evidence ' where language is not adapted to convey those circumstances on which the judgment must be formed.' Clark v. Baird, 9 N. Y. 183, 196. Opinions are the best evidence when 'from the nature of the subject to be investigated it cannot be so described in language as to enable persons not eye-witnesses to form an accurate judgment in regard to it. . . . No description of a sled could enable a jury to judge as accurately of its value as one who had an opportunity of examining it. Two sleds may be made of the same materials and the same dimensions, and the value of one be three times that of the other ; as two horses may have legs of the same length, heads of the same size, and hair of the same color, and yet be widely different in value.' De Witt v. Barley, 17 N. Y. 342, 843. "Opinions, like other testimony, are competent in the class of cases in which they are the best evidence, as when a mere description without opinion would generally convey a very imperfect idea of the force, meaning, and inherent evidence of the things described. Like other testimony, opinions are incompe- tent in the class of cases in which they are not the best evidence, as when they are founded on hearsay, or on evidence from which the jury can form an opinion as well as the witness. A rule that opinions are or are not evidence must neces- sarily be in conflict with the rule which admits the best evidence. A constant observer of the trial of cases examining the testimony for the purpose of ascer- taining how many opinions are received and how many rejected, will find ten of the former as often as he finds one of the latter ; and if he is very critical he will find the ratio much greater than that. Opinions are constantly given. A case can hardly be tried without them. Their number is so vast and their use so habitual that they are not noticed as opinions distinguished from other evidence. " ' It has been said that a witness must not be examined in chief as to his belief or persuasion, but only as to his knowledge of the fact, since judgment must be giyen secundum allegata et probata ; and a man cannot be indicted for perjury who falsely swears as to his persuasion or belief. As far as regards mere belief or per.suasion which does not rest upon a sufficient and legal foundation, this position is correct ; as where a man believes a fact to be true merely because he has heard it said to be so ; but with respect to persuasion or belief, as founded on facts within the actual knowledge of the witness, the position is not true. On questions of identity of persons and of handwriting, it is every day's practice for witnesses to swear that they believe the person to be the same, or the handwriting to be that of a particular individual, although they will not swear positively ; and the degree of credit to be attached to the evidence is a question for the jury. With regard to the second objection, it has been decided that a man who falsely swears that he thinks or believes, may be indicted for perjury.' 1 Stark. Ev. 153. " The cases of identity of persons and things and of handwriting having been named in the English books, as illustrations of the competency of opinions, those cases were supposed to be peculiaB exceptions to the general rule, whereas they are mere instances of the application of the general rule which admits the best evidence. This general, natural, fundamental, comprehensive, and chief rule of 164 TESTAMENTARY CAPACITY. evidence was gradually ignored, and special and artificial rules were substituted ; or if there was not an absolute substitution, there was such a removal of emphasis from the general rule to the special ones that the former lost the overshadowing influence and control which belong to it. Entire systems of law, theology, medicine, and philosophy are easily changed by a transfer of emphasis from one point to another. To say the least, the emphasis which belongs to the general rule admitting the best evidence was gradually taken from it and placed upon the fact that there are some opinions which, not being the best evidence, are not evidence ; and this fact was gradually transformed into a so-called general rule that opinions are not evidence, and this artificial rule was treated as a rule of law. The objection to this supposed rule against opinions is, that it has usurped the place of the supreme rule admitting the best evidence ; that it is a mere state- ment of the supposed fact that opinions are not admitted under the rule of the best evidence, and that as a statement of that kind it is not true. " The local peculiarity of Rochester v. Chester tended strongly to build up and give unlimited emphasis to the supposed rule against opinions. If a farmer could not give his opinion of the value of his neighbor's farm, horse, or sled, of a ton of hay or bushel of potatoes, there was a difficulty in showing on what ground he could give his opinion of his neighbor's sanity. The legislature re- stored the common law in reference to opinions of values ; the court ought to restore the common law in reference to opinions of sanity. ' ' The anomaly of our present practice is easily traced to its source. The innova- tion and error of Poole v. Richardson crept into this State surreptitiously between 1848 and 1865, after it had been kept out more than forty years, and after the formal attemptto introduce it in State v. Corey had signally failed. Being open to all, and more than all, the objections made against Rochester v. Chester, and having lost its sole support when that innovation and error was swept away, it should be allowed to disappear. " When the fact that some opinions are not the best evidence had been magni- fied and turned into the so-called general rule of law that opinions are not evidence, and the rule admitting the best evidence was supplanted by it, it was thought necessary to find a special precedent for every opinion before it could be admitted. The judgments of Westminster Hall were searched to find a decision that an opinion as to value of property was competent ; and to find another decision that an opinion as to sanity was competent. No such decisions could be found. None had ever been made, because such opinions had always been re- ceived as unquestionably competent. The reason of the failure to find the decisions was not understood here. The failure was taken as conclusive proof that in England the opinions were not admitted. When an American mistake of this magnitude is discovered, it is fit to be corrected at once. To return to the true principle is not to change the law, but to cease violating the law ; or, putting it in a milder form, to allow that which is the law de facto to yield to that which is the law dejure. " In criminal cases, it is often a question how nearly a footprint in earth or snow corresponded to the form of a shoe of the prisoner. A witness who has seen the footprint and the shoe, is allowed to give his opinion on the subject, because a mere description of forms would not be the best evidence. If a plaster cast of the track, or the original impression Jtself preserved by freezing, could OPINIONS OP UNPROFESSIONAL WITNESSES. 155 be produced, this evidence of its form would be more satisfactory than any verbal description. So it is when an impression has been made upon the mind of a witness by the appearance and conduct of the prisoner, indicating sanity or insanity : that impression is the best evidence the witness can give on the subject. His description of the appearance and conduct is, in fact, but indirect and imper- fect evidence of the impression ; when he gives the original impression itself, it is as if a footprint were brought into court. ' " In 1795, Sir A. G. Kinloch was tried for the murder of his brother Sir Francis Kinloch. 25 St. Tr. 891, 985. Sir Francis, in making an attempt to seize and confine the defendant, had been killed by him. The defence was insanity. In the argument of Mr. Hope for the defendant, the weight of opinions of insanity was presented in this manner : ' And now, gentlemen, in the face of all this evidence ; in opposition to the opinion of every friend who saw him '; in opposition to the advice of every professional person consulted on the occasion ; in opposi- tion to the impression of the family ; to the attempt of Sif Francis : you, sitting here, wanting the strong evidence which they had, — his eyes, his looks, his ges- tures, his tones, his whole demeanor ; you, sitting here, I say, are desired pre- sumptuously to determine that all, all were mistaken ; that the prisoner was not mad, and coercion not necessary ; and this you are desired to do. Why ? Because he killed his brother ! Wonderful conclusion ! If any thing was want- ing to confirm the evidence arising from the opinion of the family, that fatal event puts it beyond doubt. If it could be doubted whether Sir Francis too thought him totally deranged ; I answer, he has sealed his opinion with his blood. They had been taking precautions all night against danger and mischief from the prisoner ; and when the dreaded mischief happens, it is given you as a proof that their precautions were unnecessary. Admirable logic! That they appre- hended danger is clear. Why ? They have told you because they thought him mad ; the mischief happens ; and that which they dreaded as the natural conse- quence of his madness you are to take as a proof of the soundness of his under- standing.' If the evidence thus argued by Mr. Hope was inadmissible, the court should not have allowed him to make that argument. But if a prosecuting officer should object to such an argument being made, was there ever a court that would sustain the objection ? " A non-expert may testify that, in his opinion, the plaintiff was sincerely attached to the defendant (McKee v. Nelson, 4 Cow. 365, cited as law in Bobertson v. Stark, 16 N. H. 114); that the plaintiff ' seemed satisfied' with a business arrangement proposed to him by the witness (Bradley v. S. F. M. Co., 30 N. H. 487, 491) ; that the witness thought a horse ' was not then sound, . . . his feet appeared to have a disease of long standing ' (Willis v. Quimby, 31 N. H. 486, 487) ; that a horse ' appeared to be well, and free from disease, that he travelled well, ate well, breathed freely ; ' that, ' running him round the yard, he showed distress in his breathing ; ' that he thought he ' never saw any indi- cation of the horse being diseased' (Spear v. Richardson, 34 N. H. 428, 429, 430, 431) ; that there were, at a certain place, ' some hard excavations, but nothing approaching the nature of a hard pan ' (Currier v. B. & M. Railroad, 34 N. H. 498, 601, 608) ; that a lady's health, in the opinion of the witness, ' had not been near so good since ' a certain time ' as before,' ' that she had a very severe fit of sickness in the fall of 1861, and that she recovered very slowly 156 TESTAMENTARY CAPACITY. after she began to mend ; ' that the witness ' considered her very sick ; ' that the defendant, in carrying a barrel of flour at one time, and a barrel of sugar at another, ' seemed to carry them easily ; ' ' that he should call the defendant a very active man ; ' ' that he had a scuffle with ' the defendant, in which the de- fendant 'was too much for him' (State v. Knapp, 45 N. H. 148, 149, 154); that the witness ' did not see any appearance of fright ' in a horse at the time of an accident, that the horse ' did not appear to be frightened in the least, before he went off the bank or afterwards,' that ' he appeared to be rather a sulky-dispositioned horse to use ' (Whittier v. Franklin, 46 N. H. 23) ; that a carriage not seen by the witness appeared, from the sound, to start from a cer- tain point (State v. Shinbom, 46 N. H. 497, 501) ; that the plaintiflf ' seemed to suffer, and seemed weak and debilitated,' that ' she did not seem to be excited, frightened,' that ' she was lamer in the morning ' than the day before (Taylor V. Kailroad, 48 N. H. 804, 306, 309) ; and, since the restoration of the common law, opinions of the value of property are admitted here as well as everywhere else. " If opinions of physical condition are competent, opinions of mental condition must be competent. The difficulty of proving physical health or disease, without opinion, makes opinion a legal grade of best evidence ; the difficulty of proving mental health or disease, without opinion, is still greater, and makes opinion more palpably a class of best evidence. " Lord Hale recognized the similarity of insanity and intoxication, and treated both under the head of ' Idiocy, Madness, and Lunacy.' After describing ' dementia naturalis,^ and ' dementia accidentalis,'' he says : ' The third sort of dementia is tha.t vrhichis dementia affectata; namely, drunkenness. This vice doth deprive men of the use of reason, and puts many men into a perfect but tempo- rary phrenzy ; . . . such a person shall have no privilege by this voluntary contracted madness, but shall have the same judgment as if he were in his right senses.' 1 Hale P. C. 32. " In this case, it is unanimously decided that witnesses, not experts, were properly allowed to testify that at times the defendant did appear, and at times did not appear, to be under the influence of intoxicating liquor. " Admitting opinions of the influence of alcohol, and rejecting opinions of insanity, is arbitrary. It was not so in Judge Richardson's day. In State v. Corey, one witness testified there was one time when he saw the defendant ' out, — cannot say whether he had been drinking or not ; ' and several testified that they had 'never known of his being deranged except from liquor.' Ex- clude opinions of the influence of alcohol, and in many cases it would be a trying task for the jury to guess, upon the evidence, whether the defendant was intoxi- cated or insane. The appearances and conduct which gave to one witness an impression that this defendant was intoxicated, may have given to others the impression that he was insane ; and when a man is on trial for his life, the State is not entitled to a monopoly of the opinions. " Under the exception of Poole v. Richardson, counsel who have introduced evidence tending to show insanity have in most, if not in all, cases, been pain- fully aware of the fact that their client's cause suffered unjustly from the sup- pression of an important, class of the best evidence. The exclusion of opinions is practically a one-sided exclusion. A witness for the State is allowed to say OPINIONS OF UNPROFESSIONAL WITNESSES. 167 that the defendant appeared natural or as usual ; that is a clear opinion ; and it is understood and taken by the counsel, court, and jury as a full and explicit opinion that the defendant was sane. If the witness should testify in terms that, in his opinion, the defendant was sane, the effect of his testimony would not be altered in the slightest degree. On the other side, a witness is allowed to say that the defendant did not appear natural, or did appear peculiarly or strangely ; that also is a. clear opinion ; and if it were necessarily understood and taken as a full and explicit opinion that the defendant was insane, there would be no injus- tice, and the exception excluding opinions would be totally aboHshed. If ' un- natural,' by its peculiar use in this connection, should, in evidence, come to be synonymous with ' insane,' as ' natural ' is understood to be synonymous with ' sane,' the legal question now under consideration would dwindle to a point of literary taste. But the effect of the opinion that the defendant did not appear natural, or did appear peculiarly or strangely, falls far short of the effect of an opinion that he appeared to be insane ; and the State has this great and unfair advantage over the accused. If he has feigned insanity for the purpose of escaping punisliment, a mere narration by the witnesses of their observations of him would probably appear like very strong evidence of- insanity ; whereas this evidence might be properly and truthfully rebutted by their opinions ; they might have observed evidence of simulation which they could not describe. And thus the modern, eccentric, nisiprius ruling supposed by Mr. Tyng to have been made in Poole v. Richardson, and unfortunately published by him, operates unavoid- ably to oppress and endanger the accused, who, by reason of insanity, are in- nocent ; and to encourage crime by shielding the guilty who feign insanity. Objectionable as the new dogma is in all the details of its practical operation, it is also, in a purely legal view, a violation of the elementary principle which admits the best evidence." We have inserted the foregoing opinion, chiefly because of the learning and ability, as well as the exhaustive thoroughness of that portion of the dissenting opinion of Doe, J., upon the question of the admissibility of the opinions of un- professional witnesses in regard to apparent insanity, in connection with the detail of the facts upon which such opinions are based. The learned judge shows very conclusively, both upon authority and reason, that the opinion of the unpro- fessional witnesses in such cases is commonly far more reliable, as a basis of ultimate decision, in questions of sanity and mental capacity, than any specific facts which could possibly be gathered from the witnesses. We have said, in our book on Wills, and in other places, all that we could desire to say both as to the rationale of the rule and the support which it receives from authority. The tendency of the American courts, in the last few years, has been largely in the direction contended for by the learned judge ; and there seems to be little question it must ultimately prevail all but universally. We should rejoice at such a result as greatly tending towards the establishment of truth, with greater facility and certainty, in a very important class of cases. We cannot doubt the profession will regard this opinion as one of great value upon this question, and as presenting the decisions bearing upon it more exhaust- ively than can be found in any other place. It will be noticed, by the opinion, that the New Hampshire rule, excluding all opinions of witnesses, was repealed by statute. 158 TESTAMENTARY CAPACITY. V. The Degree op Mental Capacity requisite to execute a Valid Will. This is a subject of more difficulty and uncertainty than any other in the whole range of the law of wills. This results largely from the reluctance with which we all set seriously about preparation for an event which is almost the only thing we can be sure to need preparation to meet, both On account of its certainty and its im- portance. There is naturally felt, with all right-minded persons, a strong inclination to uphold the honest, just, and rational dis- position of one's estate, although made in great infirmity of body, and consequent feebleness of mind. It has thus occurred that some of the ablest opinions found in the American Reports, upon this subject, seem to require almost no mental capacity in order to make a will. The celebrated case of Stewart v. Lispenard, 26 Wendell, 255, 313, has long been regarded as the ne plus ultra in this direction. While it has not been followed with any degree of complacency even in New York, it seems not entirely agreed there, either among the courts or the profession, how far it has ever been definitely overruled by any court of co-ordinate jurisdiction with that which rendered it. This could only be done by some co-ordi- nate court, as there has been no court in that State, since tlie decision of that case by the old Court of Errors, which possessed any superior jurisdiction to that court. It seems to be generally considered that this case was finally overruled by the Court of Appeals in Delafield v. Parish, 25 N. Y. 9, 27, after having long been doubted by courts of the highest esteem in that State. Alston V. Jones, 10 Paige, 98. We shall begin this part of our work with what may be regarded as the present leading case upon this subject in that State. 1. Delafield v. Parish, 25 Mw Fork Reports, 9, 22. 1862. This is one of the most important cases, as well from the pecu- niary consequences involved, and the character and extent of the evidence, both professional and otherwise, as well as the legal questions determined, which has ever arisen in the country. We have therefore selected from the leading opinion by Davies, J., DEGREE OP MENTAL CAPACITY REQUISITE. 159 that portion wherein the questions of law are chiefly discussed. We have preferred not to give more than one note. The testator must have sufficient mind and memory to be able, to understand that he is making his will, and how he is doing it, and its effijct, both upon his property and upon those who would receive it, after his decease, without leav- ing a will. Daties, J. Before proceeding to the examination of the facts in the present case, it may aid us in arriving at a correct conclusion to advert to a few rules of law, which it is deemed are well recog- nized and long established. It is provided by the statute law of this State, that " all persons, except idiots, persons of unsound mind, married women, and infants, may devise their real estate, by a last will and testament," duly executed, in accordance with the formalities prescribed by law (2 R. S., p. 67, § 1) ; and that " every male person of the age of eighteen years or upwards, and every female not being a married woman, of the age of sixteen years and upwards, of sound mind and memory, and no other, may give and bequeath his or her per- sonal estate by will, in writing " (2 R. S., p. 60, § 21) ; and the Statute of Wills of 34 and 35 Hen. VIII. declares that no will of lands shall be valid if made by any " idiot, or by any person of non-sane memory." But competency to execute a testament does not exist, unless the alleged testator has reason and understanding suflBcient to comprehend such an act. Swinburne on Wills, pt. 2, § 4 ; Marquis of Winchester Case, 6 R. 23 a ; Combe's Case, Moore, 759 ; Herbert v. Lowns, 1 Ch. Rep. 12, 13 ; Mountain v. Bennett, 1 Cox, 353. In the Marquis of Winchester Case it is said that " by law it is not suflBcient that the testator be of memory, when he makes his will, to answer familiar and usual questions ; but he ought to have a disposing memory, so that he is able to make a disposition of his lands with understanding and reason, and that is such a memory which the law calls sound and perfect memory." In Mountain v. Bennett, 1 Cox, 353, the Lord Chief Baron said : " Two things must be made out, in the first instance, by those who support the will, — the formality of the instrument and the sanity of the person making it ; that if a party impeaching a will relies upon actual force being used upon the testator, it is incumbent on him to show it;" and he adds that "there is another ground, 160 TESTAMENTARY CAPACITY. which, though not so distinct as that of actual force, nor so easy to be proved, yet if it should be made out, would certainly destroy the will, — that is, if a dominion was acquired by any person over a mind of sufficient sanity to general purposes, and of sufficient sound- ness and discretion to regidate his affairs in general; yet, if such dominion or influence were acquired over him as to prevent the exer- cise of such discretion, it would he equally inconsistent with the idea of a disposing mind." Lord Kenyon, in addressing the jury in Greenwood v. Green- wood, 3 Curteis App. 2, says : " I take it, mind and memory competent to dispose of his property, when it is a little explained, perhaps may stand thus : having that degi"ee of recollection about him that would enable him to looii about the property he had to dispose of, and the persons to whom he wishes to dispose of it ; if he had the power of summoning up in his mind so as to know what his property was, and who those persons were, that then were the objects of his bounty, then he was competent to make his will." In Marsh v. Tyrrell, 2 Hagg. 122, that experienced and learned judge. Sir John Nicholl, said : " It is a great .but not uncommon error to suppose that, because a person can understand a question put to him, and can give a rational answer to such question, he is of perfect sound mind, and is capable of making a will for any purpose whatever ; whereas the rule of law, and it is tlie rule of common sense, is far otherwise : the competency of the mind must be judged of by the nature of the act to be done, from a consider- ation of all the circumstances of the case." The observations of Erskine, J., in Harwood v. Baker, 3 Moore Priv. C. e. 282-290, a case not unlike that now under considera- tion in some of its leading features, are worthy of note. He says : " But their Lordships are of opinion that, in order to constitute a sound disposing mind, a testator must not only be able to under- stand that he is by his will giving the whole of his property to one object of his regard, but that he must have also capacity to com- prehend the extent of his property, and the nature of the claims of others, whom, by his will, he is excluding from all participation in that property ; " and he justly and truthfully adds, " that the protection of the law is in no cases more needed than it is in those where the mind has become too much enfeebled to compreliend more objects than one, and most especially when that one object may be so forced upon the attention of the invalid as to shut out DEGREE OF MENTAL CAPACITY REQUISITE. 161 all others that might require consideration ; and therefore the question which their Lordships propose to decide in this case is, not whether Mr. Baker knew when he was giving all his property to his wife, and excluding all his other relations from any share in it ; but whether he was at. that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property." Mr. Justice Washington, in Harrison v. Rowan, 3 Wash. C. C. 385, 580, speaking of the capacity of a testator necessary to a valid will, remarks : " He must, in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged ; a recollection of the property he means to dispose of; of the persons who are the objects of his bounty ; and the manner in which it is to be distrib- uted between them." In Den v. Johnson, 2 Southard R. 454, the Chief Justice, in charging the jury on this point, said, " that a disposing mind and memory is a mind and memory which has the capacity of recol- lecting, discerning, and feeling the delations, connections, and obligations of family and blood ; that, though it has been some- times said, as had been stated, from the books" that if one could correctly tell his name, say the day of the week, or even ask for food, it is a sufiBcient evidence of a disposing mind ; yet such sayings, though they show that wills are not lightly to be set aside on suggestions of incapacity, can and ought to have but little weight with rational men, investigating the truth upon their oaths ; that if, upon the whole, they should be of opinion that the mental powers of the testatrix were so far enfeebled and broken as that she could not make a discreet disposition of her afifairs herself, and the will in question was devised by other persons, and only assented to by her, upon being asked, without the power of under- standing it, then they ought to find for the plaintiff; " that is, that it was not her will. In Boyd v. Ely, 8 Watts R. 71 Sergeant, J., in delivering the opinion of the court, says : " The great, broad, and intelligible question is, whether the mind was restored so as to be sound, whole, compos; or whether a portion of its thinking and judging powers, as connected with the subject of the will, remained mangled 11 162 TESTAMENTARY CAPACITY. and perverted at the time of making the codicil, so as to leave it incapable of interfering with his former disposition of his estate, with judgment and discretion." In Shropshire v. Reno, 5 J. J. Marsh. 91, Bobertson, C. J,, observed that the facts in that case led the court to the opinion " that the testator had not a disposing mind, or that if he ever had, it was not in a disposing state. He was not superannuated, nor was he absolutely stultus or fatuus ; but all the facts combined tend to show that he had not a sound memory, nor sufficient mind, nor a mind in a proper state for disposing of his estate with reason, or according^to any fixed judgment or settled purpose of his own. This we consider the true test, established not only by philosophy but by law." Converse v. Converse, 21 Verm. R. 168, lays down the rule, that if " the testator, when he made the will, was capable of knowing and understanding the nature of the business he was then engaged in, and the elements of which the will was composed, and the disposition of his property as therein provided for, both as to the property he meant to dispose of by his will and the persons to whom he meant to convey it, and the manner in which it was to be distributed between them, then he possessed a sound and dis- posing mind and memory." This rule was approved by Medfield, J., who added : " He must undoubtedly retain sufficient active memory to collect in his mind, without prompting, particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and be able to form some rational judgment in relation to them." In 1828, Chancellor Walworth, in Clark v. Fisher, 1 Paige, 171, said : " The general principles in relation to the capacity of a person to make a will are well understood. He must be of sound and discerning mind and memory, so as to be capable of making -a testamentary disposition of his property with sense and judgment in reference to the situation and amount of such property, and to the relative claims of different persons who are or might be the objects of his bounty." In that case the Chancellor reversed the decision of the surrogate, which admitted the will of John Fisher to probate. The testamentary capacity of John Fisher was again the subject of a judicial investigation before Vice-Chancellor Sandford, in 1845 and 1846 (3 Sand. Ch. R. 351), and he held that he had testamentary capacity. This decree was reversed, on DEGREE OP MENTAL CAPACITT REQUISITE. 1(33 appeal, by the Chancellor, who held the will void, and this court, on appeal, affirmed the decree of the Chancellor (2 Comst. R. 498). It is stated in a note by the reporter, that a majority of this court were of the opinion, upon all the facts, that the Chancellor had properly set aside the will, but without passing upon the. question as to the degree of mental capacity necessary to make a will, affirming the proposition that the testator in that case had not tes- tamentary capacity. Shankland, J., said that, regarding as he did the cases of Stewart v. Lispenard, 26 Wend. 255, and Blanchard V. Nestle, 3 Denio, 37, as fixing the standard of testable capacity at any point above that of the idiot and the lunatic, the will cannot be declared void for the want of a sound disposing mind. The case of Stewart v. Lispenard has challenged much discus- sion in this State, and has not been regarded with favor by the bench or the bar. The circumstances under which it was heard and decided on the part of the court are such as to carry with it little if any weight of authority. In that case, the will of a person conceded to be but a slight remove, in intellectual power, above an idiot, was by a decree of that court directed to be admitted to probate. The argument of the case was commenced in that court on the 21st of December, 1841, and concluded on the 24th. On the 31st of that month, the last day of the official term of one- fourth of the Senate, the case came up for decision, and was de- cided, with little opportunity for an examination of the facts, which the report says were contained in a voluminous case of upwards of three hundred pages, and without the benefit of any written opinion except that of Senator Livingston (and which has since been published), or any suggestions, even from the judges of the Supreme Court. The only justice of that court, being present by courtesy to form a quorum, stating that he liad no written opinion to present, not having had leisure since the argument was closed to digest the facts of the case, or even to read the numer- ous authorities which have been cited, amounting to nearly or quite a hundred cases, and he declined to deliver an opinion. Senator Verplanck orally stated his reasons for reversal, and thereupon the court, composed exclusively of senators, by a vote of twelve to six, reversed the decree of the Chancellor, which affirmed the judg- ment of the circuit judge, who affirmed the decree of the surro- gate refusing to admit the will to probate, and the court, by a vote of eleven to eight, made a decree directing the will to be admitted 164 TESTAMENTAET CAPACITY. to probate. After the breaking up of the court the learned opinions of two of the senators who voted to reverse the decree of the three courts below were published, and appear in our reports ; but they must be regarded as containing the views of the distinguished senators, and not those of the court. We fully concur in what is said by Mr. Justice Gierke, in Thompson v. Thompson, 21 Barb. 116, that " the opinions of these learned and distinguished sena- tors in this case are not binding authority." It is not an inap- propriate commentary upon this case to add that subsequent to the decision of the Court of Errors, in an action of ejectment in the Superior Court of New York, before Chief Justice Oakley and a jury, the jury, under instructions from the court, found that this same Alice Lispenard was an idiot, and had no testamentary capacity, thus annulling this same will as to real estate. This ver- dict was rendered after a protracted investigation, and the exami- nation of a large number of witnesses. Blanchard v. Nestle, 3 Denio, 37, was decided in the Supreme Court in 1846, and affirmed the 'doctrine of Stewart v. Lispenard, and mainly on the authority of that case, that mere imbecility of mind in a testator, however great, will not avail against his will, provided he be not an idiot or a lunatic. In Stanton v. Wetherwax, 16 Barb. 259, the Supreme Court of the fifth district reversed a judgment of the surrogate, in which he applied to the testator the rule in reference to idiots and imbe- ciles, as stated and illustrated in the Lispenard case. The court say that " perhaps the unsoundness of the testator's mind extended to so many subjects, and perverted his judgment in relation to so many topics, as to obscure and distort his entire mental faculties, and to amount to a general unsoundness of mind, which would entirely incapacitate him from making a rational or valid disposi- tion of his property." In Newhouse v. Godwin, 17 Barb. 236, Strong, J., thinks the rule established, referring to the Lispenard case, and Blanchard V. Nestle, that the wills of excessively weak persons, — and by those he says he means persons of the lowest degree of mental capacity, — where there is a glimmer rather than light, are to be sustained, and he says : " We must submit to it, whatever may be our opinion as to its necessity, propriety, or expediency." This court, in two late cases under its consideration (Buel v. McGregor, and In the Matter of the Will of Richard Ustick), has DEGREE OP MENTAL CAPACITY REQUISITE. 165 not considered this rule of obligatory force upon it, but has been disposed to give the language used in the statute its natural and obvious import and meaning. We have held that it is essential that the testator has sufficient capacity to comprehend perfectly the condition of his property, his relations to the persons who were, or should, or might have been the objects of his bounty, and the scope and bearing of the provisions of his will. He must, in the language of the cases, have sufficient active memory to collect in his mind, without prompting, the particulars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive at least their obvious relations to each other, and be able to form some rational judgment in relation to them. A. testator who has sufficient mental power to do these things is, within the meaning and intent of the Statute of Wills, a person of sound mind and memory, and is competent to dispose of his estate by will. We are next to consider upon whom the law casts the burden of establishing the will of a deceased person. The party produc- ing the paper or the proponent of a will makes the allegation that it is the will or the wish of a free and competent testator, and the onus probandi is upon the party propounding, the alleged testa- mentary paper. The conscience of the court is to be satisfied by the party setting up the will, that it is the will of a free and capa- ble testator. This clearly recognized rule is well expressed by Parke, B., in delivering the judgment of the Judicial Committee of the Privy Council in Barry v. Butlin, 1 Curt. 637, 2 Moore P. C. 480, where he says : " The rules of law, according to which cases of tliis nature are to be decided, do not admit of any dispute, and they have been acquiesced in on both sides. These rules are two : the first, the onus probandi, lies in every case upon the party pro- pounding the will,' and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator." Again : " In all cases, this onus probandi is imposed on the party propounding a will." In the late case of Browning v. Budd, 6 Moore P. C. 430, the same learned judge said : " Their Lordships have to apply to the facts of the case the estab- lished rule on tliis subject laid down in Paske v. OUats, 2 Philim. 323, and fully explained in the case of Barry v. Butlin, 2 Moore P. C. 480, viz., that the burden of proof lies upon the party pro- pounding a will, and that a Court of Probate is not to pronounce 166 TESTAMENTARY CAPACITT. in its fav'or, unless it is judicially satisfied that the instrument pro- pounded is the last will of a free and capable testator." In Panton v. Williams, 2 Curt. 530, 2 Notes of Cases, Supple- ment, 21-29, certain papers propounded as the will and codicils of a party deceased, opposed on the grounds of forgery and fraud, were pronounced for by the Prerogative Court, but with great doubt and difficulty. That sentence was reversed by the Judicial Committee of the Privy Council, further evidence having been admitted. Lord Brougham, in delivering the opinion (2 Notes of Cases, Supplement, 29), said : " It is of itself not immaterial to con- sider that the contention of those who are setting up those papers is encumbered with so much difficulty ; for whether the question arises between a will and an alleged intestacy, or, as in the present ease, between one will and another of a prior date, the proof being upon the party propounding any testamentary writing, the course of administration directed by the law is to prevail against him who cannot satisfy the conscience of the Court of Probate that he has established a will, or the prior instrument, which is liable to no doubt, is to be established in preference to the posterior one, which cannot be so proved to speak the testator's intentions as to leave the court in no doubt that it declares those intentions. There is no duty cast upon the court to strain after probate, and to grant it where grave doubts remain wholly unremoved, and great diffi- culties oppose themselves to our progress, which we are quite unable to surmount." Again, he says : " It may suffice to say that the proof eminently lies on him who sets up a will, and further, that it is more fatal than to his adversary if he leaves difficulties entirely without explanations." He adds : " It is much less material that those who seek to impeach a testamentary in- strument should be unable to explain certain things in their case, and should be forced to. admit that their argume"iit is not in every point consistent with all the facts, than that they who seek to establish the will should give no rational, consistent, or intelligible solution of those difficulties which encumber their suppositions, and obstruct the path towards the conclusion they would have us arrive at. . , . We are of opinion that grave suspicions rest upon material parts of the case, which it was necessary should be re- moved before probate could be given, and that they have not been removed ; that the testimony of the witnesses relied upon does not counteract the weight which the undoubted facts of the transaction DEGREE OP MENTAL CAPACITY REQUISITE. 167 fling into the other scale ; nay, that there is no great difficulty in reconciling much of that testimony — indeed, all its most impor- tant portion — with the undisputed facts to which, upon a super- ficial view, it might seem repugnant." In Baker v. Batt, 2 Moore P. 0. 317, Parke, B., said : " No rule has been acted upon in the court below which has not been long observed, not only in the ecclesiastical courts, but those of common law. . . . For if the party upon whom the burden of the proof of any fact lies, either upon his own case, where there is no conflicting testimony, or upon the balance of evidence, fails to sat- isfy the tribunal of the truth of the proposition which he has to maintain, he must fail in his suit ; and in a Court of Probate, where the onus probandi most undoubtedly lies upon the party propound- ing the will, if the conscience of the judge, upon a careful and accu- rate consideration of all the evidence, on both sides, is not judicially satisfied that the paper in question does contain the last will and testament of the deceased, the court is bound to pronounce its opinion tliat the instrument is not entitled to probate ; and it may frequently happen that this may be the result of an inquiry in cases of doubtful competency in particular, without the imputation of wilful perjury on either side ; or it may be the judge may not be satisfied on which side the pei-jury is committed, or whether it certainly exists." The same rule is distinctly recognized and enunciated by the Supreme Court of Massachusetts in Crowninshield v. Crownin- shield, 2 Gray, 526. It was there held, in accordance with the universal rule, that the burden of proving the sanity of the testa- tor is upon him who offers the will for probate, and this burdeii does not shift upon evidence of his sanity being given by the sub- scribing witnesses. Thomas, J., in an able and learned opinion, says : " When one dies owning real and personal estate, the law fixes its descent and distribution. Under certain conditions, how- ever, it gives to such owner the power to make a disposition of his property, to take efifect after his deatli. This is done by a last will and testament. To make such will, certain capacities are requisite in the maker, and certain formalities for its due execution. . . . When, therefore, a will is offered for probate, to establish it, to entitle it to such probate, it must be shown that the supposed tes- tator had the requisite legal capacities to make the will ; to wit, that he was of full age and of sound mind, and that in making it 168 TESTAMENTARY CAPACITY. the requisite formalities have been observed. The heirs-at-law rest securely upon the statutes of descent and distributions, until some legal act has been done, by which their rights under the statutes have been lost or impaired. . . . Upon whom, then, is the affirmative ? The party offering the will for probate says, in effect. This instrument was executed with the requisite formalities, by one of full age and of sound mind, and he must prove it ; and this is to be done, not by showing merely tliat the testament was in writing, that it bears the signature of the dec'eased, and that it was attested in his presence by three witnesses ; but also that it was signed by one capable of being a testator, one to whom the law had given the power of making disposition of his property by will." Tiie learned judge further adds : " There are strong rea- sons why the same presumption as to sanity should not attach to wills as to deeds in ordinary contracts. Wills are supposed to be made in extremis. In point of fact, a large proportion of them are made when the mind is to some extent enfeebled by sickness or old age. It is for this reason that the execution of the will and the proof of its execution are invested with more solemnity, tlie statute requiring it to be attested by three or more competent wit- nesses ; making void all beneficial devises, legacies, or gifts to such interested witnesses, and requiring the presence of the three in Probate Court for its proof." In conclusion, he says : " On the whole matter, we are of opinion tliat where a will is offered for probate, the burden of proof in this commonwealth is on the exec- utor, or other persons seeking probate, to show that the testator was, at the time of its execution, of sound mind; that if the gen- eral presumption of sanity applicable to other contracts is to be applied to wills, it does not change the burden of proof; that the burden of proof does not shift in the progress of the trial, the issue throughout being one and the same ; and that if upon the whole evidence it is left uncertain whether the testator was of sound mind or not, then it is left uncertain whether there was, under the statute, a person capable of making tlie will, and the will cannot he proved.'^ We have quoted thus largely from this opinion for the reason that it is, to our mind, one of the most able and satisfactory upon the points under consideration in this case, with which we have met. It is most carefully considered, ably reasoned, and fully sustained by authority. Its results command our entire assent. DEGREE OF MENTAL CAPACITY REQUISITE. 169 See also Gerrish v. Nason, 22 Maine, 438 ; Cilley v. Cilley, 34 id. 162 ; Wallis v. Hodgson, 2 Atk. 56 ; Powell on Devises (Jarman's ed.), p. 81, vol. i. ; Newhouse v. Godwin, supra; Clarke v. Saw- yer, supra. In this connection, it may be well to add a few remarks from the opinion of Mr. Justice JErsMne, in the case of Harwood v. Baker, supra. They are in pbint, and lay down with accuracy the principles which should govern us in the examination of the evi- dence in this cause. He says : " Keeping in mind the principle that in all cases the party propounding the will is bound to prove, to the satisfa,ction of the court, that the paper in question does contain the last will and testament of the deceased, and that this obligation is more especially cast upon him when the evidence in the case shows that the mind of the testator was generally, about the time of the execution, inconipetent to the exertion required for such a purpose ; and further, keeping in mind that the disposition in question was not in accordance with any purpose deliberately formed before his mind became enfeebled by disease, we come to the examination of the witnesses whose evidence is relied on as proving that at the time of the executing the will in question he was fully competent to form, and did deliberately form, the inten- tion of leaving to his wife the whole of his property." It seems to us that these cases fully establish tlie following propositions : — 1. That in all cases the party propounding the will is bound to prove to the satisfaction of the court that the pape'r in question does declare the will of the deceased, and that the supposed testa- tor was, at the time of making and publishing the document pro- pounded as his will, of sound and disposing mind and memory. 2. That this burden is not shifted during the progress of the trial, and is not removed by proof of the factum of the will, and the testamentary competency by the attesting witnesses, but re- mains with the party setting up the will. 3. That if, upon a careful and accurate consideration of all the evidence on both sides, the conscience of the court is not judicially satisfied that the paper in question does contain the last •will of the deceased, the court is bound to pronounce its opinion that the instrument is not entitled to probate. 4. That when it is sought to establish a posterior will to over- throw a prior one made by the testator in health, and under cir-- 170 TESTAMENTARY CAPACITY. cumstances of deliberation and care, and which is free from all suspicion, and when the subsequent will was made in enfeebled health, and in hostility to the provisions of the first one ; in such case the prior will is to prevail, unless he who sets up the subse- quent one can satisfy the conscience of the Court of Probate that he has established a will. And also the prior will is to prevail, unless the subsequent one is so proven to speak the testator's intentions as to leave no doubt that it does so speak them. 5. That it is not the duty of the court to strain after probate, nor in any case to grant it, where grave doubts remain unre- moved, and great difficulties oppose themselves to so doing. 6. That the heirs of a deceased person can rest securely upon the statutes of descents and distributions, and that the rights thus secured to them can only be divested by those claiming under a will and in hostility to them, by showing that the will was executed with the formalities required by law, and by a testator possessing a sound and disposing mind and memory. The maxim, qui se scripsit hceredem, has imposed by law an additional burden on those claiming to establish a will under cir- cumstances which call for the application of that rule, and the court in such a case justly requires proof of a more clear and satisfactory character. Such a condition is exhibited by the testi- mony in the present case. The two codicils under consideration were exclusively for the benefit of Mrs. Parish, with the exception of the charitable gifts ; and although they were not actually written by her, yet they were drawn up at her suggestion, upon her pro- curement, and by counsel employed by her. She prepared and gave the instructions for them, and in judgment of law they must be regarded as written by herself: Facit per aliuni, facit per se. The rul^ which should govern the court in such a case is enun- ciated in Barry v. Butlin, 1 Curt. Eccl. Eep. 637. It is there said that if a party writes or prepares a will under which he takes a benefit, that it is a circumstance which ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favor of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased. By the civil law such a will was rendered void, and it may be well doubted whether we DEGREE OP MENTAL CAPACITY REQUISITE. 171 have acted wisely in departing from its just and rational provisions in this respect ; and it is well said by the court, in Crispell v. Dubois, 4 Barb. 398, that, though this rule of the civil law has not been adopted in our courts, yet they do demand satisfactory proof in such cases that the party executing the will clearly under- stood and freely intended to make that disposition of his property which the instrument purports to direct. The doctrine is well stated in Paske v. Ollats, 2 Phil. 323, that " where a person who prepares the instrument and conducts the execution of it is him- self an interested person, propriety and delicacy would infer that he should not conduct the transaction." 2. Converse v. Converse, 21 Vermont Reports, 168. 1849. In order to execute a valid will, one must have sufficient active memory to recall his family and his property, and to form some rational judgment in regard to the deserts of the one and the disposition of the other, with reference to such deserts. The opinion was delivered by — Eedpield, J. The subject involved in this case is one of some difficulty. It is not easy to lay down any precise rule, as to what exact amount of mental capacity is sufficient to enable one to dis- pose of property by will. The rule laid down by the judge in this case, in summing up to the jury, seems to have been rather a medium one, rather sensible and judicious ; and if we reversed the judgment, we could hardly expect to prescribe a safer or more intelligible one. Every man will have his own mode of expressing the thing. The rule of one is very little guide to another. In this case the court below instructed the jury that the validity of the will in question must depend upon whether the testator had sufficient mental capacity to execute it, at the time it was executed ; that he must then have been of sound disposing mind ; that this did not imply that the powers of the mind must not have been weakened or impaired by disease or old age ; that it would not be sufficient that the testator might be able to understand a question and answer it in a rational manner, nor was it necessary that he should have such a capacity of mind as would justify his engag- ing in complex and intricate business ; but that the jury must be 172 TESTAMENTARY CAPACITY. satisfied, iu order to justify them in establishing the will, that the testator, when he made it, was capable of knowing and understand- ing the nature of the business he was then engaged in, and the ele- ments of which the will was composed, and the disposition of his property, as therein provided for, both as to the property he meant to dispose of by his will, and the persons to whom he meant to con- vey it, and the manner in which it was to be distributed among them. I have myself usually told a jury, in these cases, that less mind is ordinarily requisite to make a will than a contract of sale, under- standingly, for the reason that in contracts of sale there are usually two parties, and some degree of antagonism between their interests and efforts ; so that here mind is opposed to mind, and conse- quently it is somewhat more difficult to see clearly the just bearing of all the relations presented, than under the common circum- stances of making a will, where one is left free to act upon his own perceptions merely.. But this is not always the case in making a trill. One may be beset by an army of harpies, in the shape of bungi'y expectants for property, altogether more perplexing than the ordinary circumstances attending a disposition of property by 3ale. • But it may be safe, no doubt, to affirm that, in making any con- tract understandingly, one must have something more than mere oassive memory remaining. He must undoubtedly retain sufiScient %ctwe memory to collect in his mind, without prompting, particu- lars or elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive, at least, their OQore obvious relations to each other, and be able to form some rational judgment in relation to them. The elements of such a judgment should be, the number of his children, their deserts, with reference to conduct and capacity, as well as need, and what he had aefore done for them, relatively to each other, and the amount and jondition of his property, with some other things, perhaps. The japability of men in health to form correct judgment in such mat- ;ers is no doubt very unequal ; and when there is no inherent incon- gruity in the will itself, and no just ground to suspect improper nfluence, juries are, and perhaps should be, very liberal in sustain- ng testamentary dispositions. But there must undoubtedly be iome limit. "When one is confessedly in a condition to be con- itantly liable to commit the most ludicrous mistakes, in regard to DEGREE OP MENTAL CAPACITT EEQUISITE. 173 the most simple and familiar subjects, he ought not to and cannot make a will. The foregoing opinion was delivered more than twenty years ago, and one passage in it has been largely quoted by the American courts, and, so far as we know, with general approbation, until the case of Irish v. Newell, 62 111. 196, wherein it seems to have been discovered that these words, " He must, undoubt- edly, retain sufficient active memory to collect in his mind, without prompting, pai-ticulars or elements of the business to be transacted [that is, the members of his family and the nature and extent of his property], and to hold them in his mind a sufficient length of time to perceive, at least, their more obvious relations to each other, and be able to form some rational judgment in relation to them " [that is, that he be able to dispose of his property in a rational manner among bis family]; that these few words contain a very insidious meaning; in short, that they require a degree of mental capacity above the average of mankind. This is clearly asserted in the opinion, and, that there be no mistake about it, is embraced in the head-notes of the case. If it had been said that they are not fitted to be addressed to a jury, by way of charge, no one would dissent, — cer- tainly not the author, who never intended them for any such purpose. But how any one could fairly interpret them in any such sense as there given, is incom- prehensible to us^ or how they can be made to bear any other construction than that given above, in the brackets, is not in our power to conjecture. And why the learned judge should have been the first to discover this covert meaning, after the words had been so much quoted and commended by other judges, hav- ing, by courtesy, equal claim to a fair understanding of plain English, is beyond our power of comprehension. It seems obvious that the learned judge has here fallen into some muddle. For when he essays to give his own definitions of testamentary capacity, it varies in no essential particular from that which he so vigorously assails. We can only say, in conclusion, that if the learned judge seriously believes what he so plainly says, he must have had experience of a very remarkable quality of mental capacity, to make such an average for man- kind in general ; and if he does not intend to be understood as believing what he asserts so unqualifiedly, he is certainly unfortunate in his use of language, and in either case we cannot suppose his comments will gain much credence. The question, in our apprehension, is far more justly presented in Lawrence v. State, 66 N. C. 584, where the learned judge very justly declares that there is no formula in which judges are bound to charge upon the degree of mental capa- city requisite to make a will. And also, that it seldom does justice to the judge or the case on trial to select isolated expressions, which have been held to be proper in other cases, and insist upon their being used in the charge to the jury. It is here held that a mistake in fact, upon which the testator disinherits a relative to whom he would otherwise have given a legacy, will not avoid the will, where the mistake was the result of fals.e information and involved no defect in mental capacity. The views of the case of Converse e. Converse are maintained in Kinne v. .Johnson, 60 Barb. 69 ; Reynolds v. Root, 62 Barb. 250 ; Tringley v. Cowgill, 48 Mo. 291, and in Delafield v. Parish, ante, p. 166, in totidem verbis. 174 TESTAMENTARY CAPACITY. This subject is very perspicuously presented by Chief Justice Williams of Connecticut, in — 3. Gomstock v. Hadlyme, 8 Connecticut Reports, 254. 1830. Those who propound the will for probate must assume the burden of showing that it was duly executed by the testator, and that he, at the time, was capable of doing the act in an understanding manner ; and this party must open and close the case, both in proof and argument. The executor is a competent witness in favor of the will. The declarations of the testator, made about the time of the execution of the will, unless made at the very time, so as to form a part of the res gesta, are not competent testimony to the facts claimed to constitute undue influence. In regard to testamentary capacity, the question is, whether the testator had a sound, disposing mind and memory, sufficient to know and understand the business in which he was engaged. Parol evidence is not admissible to show that the scrivener, by misapprehension or mistake, did not make the will to give legacies to some persons intended to have them, either for the purpose of impeaching the will or restoring the legacies, no proof of fraud or imposition being offered in connection with the omission of such legacies. The opinion of the court was delivered by — Williams, J. A new trial is moved for, first, because tiie court permitted the appellees to open and close the argument. The real question to be tried, was, whether there was a valid will ; and this question was to be decided in the same manner as if it had not been decided in the Court of Probate. Those who claimed under the will, must, therefore, take upon themselves the burden of proof; and they must not only prove that the will was formally executed, but that the testator was of souud and disposing mind. And the rule is, that where there is a necessity for any proof, on the part of the plaintiff, he ought to begin. Hodges v. Holder, 3 Campb. 366 ; Jackson v. Hesketh, 2 Stark. Rep. 518. And although, where the defendant sets up a new case, he has been allowed to go forward (Doe d. Corbett v. Corbett, 2 Stark. Rep. 368 ; Goodtitle d. Revett v. Braham, 4 Term Rep. 496), yet where a deed or note is to be proved by the plaintiff, duress, or fraud, or mistake is not such a case as will entitle the defendant to open aud close. So if the defendant pleads nan assumpsit to a note, and DEGREE OF MENTAL CAPACITY EEQUISITB. 175 gives payment in evidence, as the plaintiff goes forward to prove the note, though the case is to turn upon payment, the defendant does not gain the right. Brooks v. Barret, 7 Pick. 100. But the question has arisen in Massachusetts upon a will ; and it has been repeatedly decided that those who were to prove the will went forward. Buckminster et al. v. Perry, 4 Mass. Kep. 593 ; Phelps et al. v. Hartwell et al., 1 Mass. Eep. 71 ; Brooks v. Barret, 7 Pick. 94. I cannot doubt, therefore, that this point n was rightly decided. But were it otherwise, it seems not to be a ground for a new trial. It is a matter of practice, founded indeed upon the prin- ciple that he who takes the affirmative assumes the burden of proof ; yet where there are several issues, or the burden of proof changes, as it frequently does in the course of the trial, I think as much discretion must be allowed to the judge as in case of a motion for a continuance, or for a new trial ; and that a mistake here is no more a ground for a new trial than in those cases. And no case is recollected in which a new trial was granted, except that, in the case cited of Brooks v. Barret, it is said to have been so adjudged in Massachusetts. However it may be in that State, I know of no rule here requiring th^ court to grant a new trial on that account ; and I am not disposed to establish such a rule. 2. It is objected to the decision below that, as the executors had accepted the trust and proved the will, they could not testify, because they are parties, and because they are interested. As to the first objection, the rule at law is, that the parties on the record cannot be witnesses. But are the executors parties ? They have, indeed, been cited in, to show cause, if any they have ; but it is merely that they may come, not that they must. But they do not appear nor plead : they have left the defence to those par- ticularly interested in establishing the will, the society of Hadlyme. Besides, the proceedings 'in cases of this kind resemble the pro- ceedings in chancery rather than those in a court of law ; particu- larly in this process calling upon all interested to come in and defend. And in chancery it is well settled that persons who are defendants on the record, if they have no interest, may be witnesses. Neilson v. McDonald, 6 Johns. Chan. Eep. 201, 204. And so at common law, an executor having no interest, or a mere trustee, may be a witness. Sears v. Dillingham, 12 Mass. Rep. 360. 176 TESTAMENTARY CAPACITY. It is said, however, that they are liable to costs. If they are not parties, they are certainly not liable. But if they are technically parties, I do not see how they should be liable to costs. In Massachusetts, it seems they are made liable by statute ; and, therefore, they are not witnesses. But in this State, in the first place, the general practice has been not to tax costs against appel- lees, in probate cases, where the judgment is reversed. Aside, however, from that practice, these executors being merely trustees, having no personal interest, can, upon no principle of law or equity, be answerable for costs, because they were called upon to come in and defend the will, if they saw cause, when they have seen no cause, and when they did not choose to come in and defend. The executors have adopted the course which seems, after the case of Curtis V. Northup, Swift's Ev. 357, to be the only safe one. They have left the heirs and devisees, the real parties in interest, to carry on the controversy, in which they alone were interested. And surely they cannot carry it on at the expense of those who have no manner of interest in it. It is said, again, that they have an interest in establishing the trust fund ; otherwise they never can be paid for their services ; and the above-mentioned case of Curtis v. Northup is cited. It is believed that that case does not establish the proposition it is brought to establish. The court do, indeed, there say that if a testator gives all his estate to one, and makes another his executor, and an heir appeals, as in this case, the executor is not bound to defend ; and if he does, and the will is adjudged void, he must lose the whole, as there is no estate which he could charge. But a reason is given : it is unjust that he should defend at the expense of the devisee, who had no interest in it. But it does not follow that the expenses he has incurred, or the services which he has rendered, while in the due performance of his duty, under a will legally proved, shall not be allowed hifia, as well as the debts he has actually paid. While he acts bona fide, under a judgment of the Court of Probate, he acts legally, and must be entitled to pay- ment of his expenses and a compensation for his services. Brad- ford V. Boudinot, 3 Wash. C. C. Rep. 122. In the case of Hayden et ux. V. Loomiss, 2 Root, 350, the executoy was excluded ; but the case is so briefly reported that the precise point does not ap- pear. In Hawley v. Brown, 1 Root, 494, the executor declined the trust, and his wife was admitted as a witness. These are decisions HOW FAR EVIDENCE. 177 of the Superior Court. In England, it has been settled ever since the time of Lord Hale, that the executor, not being interested, may be a witness. Anon., 1 Mod. 107 ; Lowe v. Jolliffe, 1 W. Bla. Rep. 365 ; Goodtitle v. Welford, 1 Doug. 141 ; Bettison et al. v. Bromley, 12 East, 250. And although the question here arises in a different form from what it does in those cases, the princi- ple is the same ; and in my opinion, the executors had no interest, and ought not to have been excluded from testifying. 3. The next general question is, whether the declarations of the devisor, made about the time of executing her will, tending to show that she was unduly influenced, ought to have been admitted in evidence. If it was claimed that those declarations were part of the res gesta, the time when made should have been precisely stated : about the time is quite too indefinite. It should have been stated to be at the time. And if her declarations were not a part of the res gesta, I know not upon what principle they can be intro- duced as evidence of facts. Is a will ordeed, valid upon the face of it, to be destroyed or in any way affected by the declarations of the devisor or grantor ? Some strong authority is necessary to support such a proposition. In the case of a deed, it would not be claimed. A will, to be sure, is ambulatory ; and nothing vests dur- ing the life of the devisor. Still, however, it can be altered or re- voked only in a legal manner. In Nelson v. Oldfield, 2 Vern. 76, evidence of what the testator said to prove duress was admitted ; but no objection appears to have been made ; and the court said, the legatee had her probate, and might make what use she could of it, but a court of chancery would not aid her. In Jackson d. Coe et al. V. Kniffen, 2 Johns. Rep. 31, 34, Thompson, J., says : " To per- mit wills to be defeated, or in any manner whatever impeached, by the parol declarations of the testator, appears to me repugnant to the very genius and spirit of the statute, and not to be allowed." And in Smith v. Fenner, 1 Gall. 172, it was held that the dec- larations before and at the execution of the will were admissible, but none made after, unless so near the time of the execution as to be a part of the res gesta, or necessarily connected with it. And in Stevens v. Yancleve, 4 Wash. C. C. Rep. 265, Wash- ington, J., says : " The declarations of a party to a deed or will, whether previous or subsequent to its execution, are nothing more than hearsay evidence ; and nothing could be more dangerous than the admission of it, to control the construction of the instrument, 12 178 TESTAMENTARY CAPACITY. or to support or destroy its validity." And in Provis v. Reed, 5 Bing. 435, 15 Serg. & Lowb. 490, where written declarations of the devisor made after his will were offered in evidence, Best, C. J., said : " We shall not, for the first time, establish a doctrine which would render useless the precaution of making a will. It would be contrary to the first principles of evidence." In the case on trial, it does not appear whether the declarations were before or after the execution of the will. Of course, it is not necessary to determine whether there is any real difference in the principle. It is sufiBcient to say that, if there is any, the fact ought to be shown to the court that the declarations were made before the execution of the will, or the party who asks for a new trial can gain no benefit from that fact. 4. Another objection is, to the charge of the court. The jury were instructed, that if the devisor knew what she was about; knew the consequences of what she was doing ; if she had sufficient capacity to make any contract, — she might make a valid will. Upon this subject there may be some difficulty in fixing a stand- ard. The question for the jury was, whether the devisor had a sound and disposing mind. Although the charge may not add much to what would occur to the minds of discreet men on that subject, yet if no improper direction has been given, I think there should be no new trial. In Rambler v. Tryon, 7 Serg. & Rawle, 95, and in the case cited above of Stevens v. Vancleve, the court say that the testator may not have sufficient strength of mind and vigor of intellect to make and digest all the parts of a contract, and yet be competent to direct the distribution of his property by will. The question, says Judge Washington, resolves itself into this : were his mind and memory sufficiently sound to enable him to know and understand the business in which he was engaged at the time when he executed his will. 4 Wash. C. C. Rep. 466, 467. And in Hathorn v. King, 8 Mass. Rep. 871, the court said that if at the time of executing the will the testatrix had sufficient discretion for that purpose, and was able to recollect the particulars which she had dictated, the jury might find her of sound and disposing mind. I think, therefore, that there is no ground for a new trial, as it regards the charge. 5. But the most important objection is the omission to insert the legacy to her grandchildren of 100 dollars each. That the testa- EPPECT OP EXTRINSIC EVIDENCE. 179 trix directed this ; that she supposed it was done, and that it was not done, — are to be considered as proved, for the purposes of this motion. It is said that this omission makes the will void ; that it shows it was not her will, — not the will she meant to make. Now, if a mistake in drafting a will makes it void, it is certainly very surprising that no case has been produced from an English or American book in support of the proposition, although the various decisions relative to the construction of the Statute of Frauds would fill volumes. It cannot be believed but that similar mistakes have been often made. The statute, when it required all wills to be in writing, signed by the testator and attested by witnesses, certainly intended that the evidence, and the whole evidence, of the disposition of property by will should be the will itself ; that the evidence of the intent of the devisor should be derived from the writing, signed by him, and solemnly attested : otherwise, innumerable would be the cases where evidence of mistake would be claimed and proved. To use the language of Best, C. J., in the case before cited, some witness would constantly be brought forward to set aside the most solemn instrument. 5 Bing. 435. How often is it that the words used by the scrivener convey a different estate from what the testator designed ! Yet it has always been decided that parol testimony could not be admitted to prove that the devisor meant to give a different estate from what the will expressed. Chappel v. Avery, 6 Conn. Rep. 34 ; Parrer v. Ayres, 5 Pick. 407. It is, says Lord Kenyan, a sacred rule of property not to be departed from. Goodtitle d. Richardson v. Edmonds, 7 Term Rep. 635, 640 ; Richards v. Dutch et al., 8 Mass. Rep. 506, 515. And if it is settled that you cannot, by parol proof, alter the legal import of the terms used by the scrivener, such a will must either be void, or convey a different estate from the one in- tended. That such a will is not void is proved by repeated declarations of judges, that by the legal construction they knew that the intent of the testator was frequently violated. Doug. 763 ; 1 Brod. & Bing. 261, n. ; Oowp. 660. If by the construction given to the words used the intent may be defeated, and yet the will remain valid, why shall not the same effect follow where it arises from an omission to insert certain words which were intended ? In neither case is the effect of the will exactly what the testator intended ; but in neither case can 180 TESTAMEKTAET CAPACITT. the fact be ascertained, without the aid of parol testimony ; and if such testimony is to be admitted, we do away part at least of the beneficial effect of the Statute of Frauds, and leave every will ex- posed to litigation on a claim of a different intent. In contracts, mistakes have, indeed, been rectified, in a court of chancery ; but no case is recollected where they have been holden void on account of a mistake. In Philips v. Chamberlaine, 4 Ves. Jr. 51, 57, where an intention was expressed to give a legacy to the Humane Society, |)ut no sum was inserted, the will was not held to be void. And it would seem that in this case, if any remedy existed, it would be one that would not destroy the whole will, but one which would correct the mistake, and make it what it ought to be. That has been attempted in a recent case ; and it was decided that parol testimony could not be admitted to prove the mistake. It would be to make a will by witnesses, and not by writing ; to make a will anj thing. Avery et ux. v. Chappel et al., 6 Conn. Rep. 270, 275. And if such evidence cannot be admitted in chancery to prove a mistake in a will, where is the principle, or where the authority, that such evidence can be admitted to render the will void ? Can courts of law dispense with rules of evidence more readily than courts of chancery ? or is the obligation imposed upon them by statute less imperative ? The general rule is, that courts of law and chancery proceed upon the same principle as to admitting parol testimony ; and it is certainly a novel idea that courts of chancery are less liberal on that subject than courts of law. I think, then, it follows that if courts of chancery cannot admit such evidence to prove a mistake, which they might correct, courts of law cannot admit it to prove a mistake to set aside the will. The danger arising from the nature of the proof is the same in both cases ; and if the rules of law would allow that proof, it would be more congenial to principle, and more likely to effectuate the intent of the devisor, to correct the mistake, than to make void the whole instrument. And if the former cannot be done, much less can the latter. The only authority cited is Downhall v. Catesby, Moore, 356, re- ferred to in 1 Swift's Dig. 141, and in Powell. In that case it appears that the testator directed the scrivener to give an estate to one of his sons /or life, and he gave it in fee. The court agreed that the will was entirely void, it not being the will of the testator ; though Fenner, J., held that it might convey an estate for life. EFFECT OF EXTRINSIC EVIDENCE. 181 That decision was made undei" the statute of Heu. VIII., when a laxity was allowed with respect to wills, which produced evils that gave rise to the Statute of Frauds. Under the first statute, a letter was held to be a writing within the statute. West's Case, Moore, 177. So a will made by a lawyer from notes taken by him from the mouth of the deceased was held good, though never read to him. Brown v. Sackville, 1 Dyer, 72 a. And a scrap of writing, though not signed, sealed, or written, by the devisor, if established . by one witness, and he a legatee who had released his interest, has been held good. Stephens v. Gerrard, 1 Sid. 315. But this solitary case is said in Co. Ent. 252 to be contradicted. If, however, it is admitted that it was once law, it will no more prove that such ought to be the construction of our statute regard- ing devises, than the rules of the feudal system would prove the doctrine of primogeniture now to exist in Connecticut. And the fact that no case is found since the statute of 29 Oar. II. is strong, if not conclusive evidence, that such has not been the construction. I am, therefore, of opinion that there ought not to be a new trial. More assistance, both to court and counsel, will often be derived from the opinions of experienced judges, discussing the evidence in similar cases, than from any amount of debate and refinement upon the mere abstract propositions of law governing such cases. The law is fixed and simple in its definitions, and not capable of much increased perspicuity, from any amount of debate or discus- sion', or from the multiplication of cases. But the facts are of almost infinite variation, no two cases being alike in their leading features. It is unquestionably true that mere decisions are not of much value often, except in precisely similar cases. But the dis- cussions, by eminent and experienced judges, of the evidence, and the application of established rules of law to such evidence, cannot fail to afford essential aid to all counsellors occupied in the trial of similar cases, and to the courts as well. We therefore introduce an extract from one of the studied opinions of Surrogate Bradford, whose Reports are the most valuable repository of wisdom and learning, upon this class of cases, anywhere to be found in the country, and which are somewhat rare in public libraries of con- 182 TESTAMENTARY CAPACITY, siderable extent, and almost never found in private professional libraries, especially in New England. 4. Moore v. Moore, 2 Bradford^ Surrogate Reports, 261. 1853. Testamentary capacity is consistent, especially in very aged persons, with a great degree of mental infirmity, and some degree of mental perversion or aberration, at times, provided there is satisfactory proof that the testator, at the time of the execution of his will, really did comprehend its import and scope, and was not under the control of any improper or undue influence, or of any deception or delusion. The facts clearly appear in the opinion of the court by — Bradford, Surrogate. I next proceed to review the testimony in respect to the capacity of the decedent. She was an old lady, who had resided with her husband at his house in Batavia Street until his death, June 23, 1848. Shortly after that occurrence she went to live with her son Alfred, at his residence in the Third Avenue, where the will was made in November, 1848. In April, 1849, she removed to a new house built by Alfred in Twenty-second Street, where she remained until her decease. Mrs. Conover, of Eahway, states that in the summer of 1846 she had frequent opportunities of seeing Mrs. Moore, who was then on a visit at the house of her son Joseph. She saw her daily, and says she was very childish ; forgot who the witness was ; did not know one of her grandsons ; had her food cut for her ; was never left alone. Mrs. Trembly, of Rahway, was in the habit of seeing Mrs. Moore, some years before her decease, when visiting her son Joseph in the summer season. She considered her conversation like that of a child, though she did not recollect any thing said by her that was foolish. " She would imagine she saw things ; think she would see some one coming, and would call Prances. She had her basket, with little rolls, and would lose some of them and would call Frances to look after them. . . . When she imagined someone, was coming out doors she would not be satisfied it was nobody, till Frances came and looked out. . . . That was about four or five years ago." The witness last saw Mrs. Moore in May, 1848, at her house in Batavia Street. She says, " She knew me when I came in ; she inquired about Frances and her son Joseph. . . . She was the same as she was before ; she appeared to be a child in her conversa- PROOF OP MENTAL WEAKNESS OR DELUSION. 183 tion and actions." On cross-examination, Mrs. Trembly said tliat at this visit slie did not hear her say, or see her do, any thing that was childish or foolish. Eliza Dunham saw the decedent at Eahway, when visiting her son Joseph. She also called on her, with Mrs. Trembly, in May, 1848. She says, " She asked me my name three times over when I was sitting at the table ; she ought to have known me. . . . She would take hold of her dress, and say it was pretty ; it was not any , thing fine. I recollect her saying she and her husband were poor. She had a basket, and would take a little roll up, undo it, roll it up and put it back again. She had her glasses in her hand, and would ask for them." Mr. Zabriskie, the step-son of William Moore, was in the habit of seeing the decedent two or three times a week in 1845, and subse- quently to that period, three or four times a week. He says she talked in a childish manner, and was checked by her husband. He states that on the 16th of October, 1848, he and his step-father vis- ited Mrs. Moore at the house in the Third Avenue ; that William " shook hands with his mother, and she did not know him ; she wanted to know who he was ; he said he was her son William. Then I went in and shook hands with her, and she did not know me ; William told her who I was ; then we sat down on the sofa. Then she asked William where father was ; when he would be back, and if we had seen him that day ; and William told her no : that father was dead. Mr. Moore had died June 22 previous. She said she could hardly believe it ; 'but, as he said it, it must be so. Mrs. Alfred Moore was there at that time, and present at this con- versation. She said that mother — Mrs. Moore — often asked about father ; where he was ; what had become of him, she did not see him." This witness called on Mrs. Moore afterwards in. Twenty- second Street, and states that she did not know him, but when she was told who he was, inquired and talked about his father and the members of his family. Sarah O'Donnell visited the decedent in May, 1849, and says, " She bade me look at things in the yard, — geese : there were none there." She adds, that she saw her again in the succeeding August, when she did not know her ; thought she had five sons ; talked as if she were poor ; imagined she saw a man on the. floor. John Carter lived in the same house with Mrs. Moore, in 1833 and 1834, for eighteen months, and called to see her two or three 184 TESTAMENTARY CAPACITY. times afterwards. At a visit in 1846 he states that she appeared to be childish ; did not know him ; and it took her husband some time to make her understand who he was. This is the substance of the testimony against the capacity of the decedent : — 1st. Memory. 1. Mrs. Conover states that, in 1846, she forgot who she was, and did not know one of her grandsons who came to make a visit at Kahway. 2. Mrs. Trembly says, that she knew her when she called at her house in 1848. 3. Mrs. Dunham testifies that on the same occasion she did not know her, and asked her name several times ; and that she asked for her spectacles, when she had them in her hands. 4. John Carter says, she did not know him in 1846 ; and 5. Sarah O'Donnell, that she did not know her in August, 1849. Mrs. Conover was an acquaintance of a few months in 1846. Mrs. Moore had seen her grandson two months before ; but how long a time had elapsed before that, since she had seen him, does not appear. Mrs. Trembly, whom she had only known when visiting at Rahway, was recognized by her in 1848, after a lapse of two years since they had met. Eliza Dunham, whom she did not know in 1848, had seen her at Rahway in 1842 and 1846, half a dozen times on each occasion. John Carter had not seen her over two or three times, the dates of which are not fixed, since 1834. Mrs. O'Donnell never saw her but three times, prior to August, 1849. The decedent was about eighty-four years of age when she executed the will, and we are to look for some loss of mental activity and vigor at that advanced age. At that period, the memory, in respect to recent events and new acquaintances, receives but fugitive impressions. Even upon the evidence of the contestants, exclusive of the testimony of Mr. Zabriskie, I think it very far from being established that Mrs. Moore's memory, at the date of the will, was so feeble as to render her incapable of a tes- tamentary act. Mr. Zabriskie testifies that, on the 16th of October, 1848, about three weeks before the execution of the will, she failed to recognize her son William, and did not remember that her hus- band was dead. If he has fixed that time correctly, it is the only single occasion before the will was made, in which her mem ory is shown to have failed in regard to her husband and her children. 2d. Childishness. This is a convenient phrase for questioning the mental vigor of aged persons, though perhaps it is the only OPTICAL illusion; mental infirmity. 185 mode of indicating a state of tlie mind peculiar to a certain period of life. It expresses, however, merely the opinion of the observers, and unless supported by facts, has weight only as an opinion worthy of more or less attention in proportion to the opportunities enjoyed for observation. No circumstances have been stated, showing un- soundness of understanding in the decedent ; her turning over the rolls and work in her basket, and calling her dress pretty, are hardly substantial enough indications of imbecility, even were there no other proof iu the case respecting her mental condition. 3d. Optical delusion. Mrs. Ti-embly testifies that in 1846., two years before Mrs. Moore executed the will, whilst visiting her son at Rahway, she imagined she saw some person coming to the house, and would not be satisfied until her daughter-in-law. Prances, came and looked out. As I shall examine this subject further hereafter, it is sujBficient at this point to say that such delusion may exist in a sound state of mind. On a review of the evidence for the contestants, then, the only important fact tending materially to an impeachment of the capacity of the testatrix, is that stated by Mr. Zabriskie. It undoubtedly shows a weak and failing memory ; but the evidence of the other witnesses for the contestants, in connection with his own statement concerning conversations with Mrs. Moore, show that there was not an entire loss of memory, Mrs. Trembly, though a casual acquaint- ance formed at Rahway, was recognized by her in 1848, two years since she had seen her ; and yet a few months afterwards Mr. Zabriskie states that she did not know her own son. If he states the time of this circumstance correctly, the case certainly calls for further proof ; for although there may not have been absolute in- capacity, yet the party propounding the will should go further than evidence of mere formal execution. He should afford more light as to the state of the decedent's mental faculties, and should show that she acted with intelligence and comprehended the effect of what she was doing at the time of the factum of the will. Upon this point, quite a number of witnesses were examined, some of whom only occasionally visited the decedent, and others lived in the same house with her, in the habit of daily intercourse and con- versation. Mr. Searle, one of the subscribing witnesses, says, he considered Mrs. Moore " perfectly sane and capable of carrying on and trans- acting any business." He never saw her transact any business, 186 TESTAMENTARY CAPACITY. but she had lived in the same house with him over four months before the will was executed. He says, " I saw her daily, and spoke to her daily ; I never knew her confined to her bed during that period ; . . . during that period I never perceived any thing irra- tional or exhibiting a want of mind on her part. When the will was executed she was in about the same state of health as before. She continued to reside there till May, 1849 ; her health and habits continued about the same ; I saw no difference. I was in the habit of calling in to see her and converse with her, almost every day." " Her memory appeared to be good." About a year after she re- moved from his house, he states that he first observed any indica- tions of her being irrational. Mrs. Searle states that the decedent's " mind was quite good when she signed the will." " I saw her two or three times a day, sometimes ; her health was very good at that time ; I never knew her to be confined to her bed daring the time she lived there ; I never saw any thing like insanity or derangement of mind while she lived there. She has come upstairs and sat with me four hours or more ; she conversed very freely and cheerfully. As far as I knew, her memory was good ; she did not talk with me about her family very often. I had no reason in the least to suppose there was any unsoundness of mind about her, during the period she lived at the house." Mr. Birch, who visited Mr. Searle, and became acquainted with the decedent whilst residing there, frequently had short interviews with her. He says, " Her conversation was always sensible," ..." there was nothing in . . . her language, conduct, or appearance, to indicate the least imbecility of mind." Mr. Cook, a brother-in-law of Alfred Moore, states that in the month of August, 1848, he stayed at tlie house in the Third Avenue, about a week ; he saw and conversed with the decedent daily, and observed " noth- ing peculiar in her appearance, manner, and conversation." Mrs. Reeder, the wife of Mr. Moore's agent, and who lived the next door to Mr. Moore's house in Batavia Street, was in the habit of frequent intercourse with Mrs. Moore to the time of her husband's death, and visited her when she lived with Alfred, once in the Third Avenue and three times in Twenty-second Street. On these occa- sions she always knew her " remarkably well." The visit at the house in the Third Avenue was in April, 1849, and lasted about two hours. At this and subsequent interviews, she says she found her perfectly sensible. She mentions several circumstances show- PROOF OF MENTAL CAPACITY. 187 ing the state of her memory, which, she says, " appeared very good." Ann Moore, an old lady residing with Alfred Moore, and the half- sister of the husband of the decedent, lived with old Mr. Moore in Batavia Street for several years, till after her brother's death. She again lived with the decedent at Alfred's house in Twenty-second Street, from May, 1849, till she died. She visited Mrs. Moore fre- quently in the Third Avenue, sometimes spending a whole day with her. She states that her memory, while in the Third Avenue, was " pretty good ; " she " knew all her acquaintances ; " and the first time she observed her memory to fail was in the summer of 1849. The first she observed of the optical delusions was when Mrs. Moore lived in Twenty-second Street. Dr. Wilsey, who had been taught by the decedent when a child, renewed his acquaintance with her in June, 1848, when he was called in to attend her husband in his last sickness. At that time, and in the ensuing September, he saw and conversed with Mrs. Moore several times. On December 30, 1848, he commenced attending Alfred Moore's family, and made seven visits in Jan- uary, 1849, four in February, six in March, three in each of the months of April, June, July, and August. Eighteen visits were afterwards made at various intervals, until March 15, 1850, when he was requested by Alfred Moore to attend his mother, which he did till her death. As to the state of her mind in 1848 he says : " I did not perceive any thing out of the way, as to her mind or recollection. ... I did not talk upon general events more than regarded relatives, and circumstances of early life. Her recollec- tion in that respect was accurate ; she had been a teacher at the period I first knew her ; her conversation was entirely rational ; I did not perceive or mistrust any tiling at that time." In respect to her mental condition in 1849 he says : " I perceived nothing peculiar in her mind or conversation. ... I never knew her to be sick at that time, and she was a woman of good constitution." In November, 1850, the decedent was seized with a fit of apo- plexy, from whicli, however, she partially recovered ; and she lived until October, 1851. The doctor states explicitly that prior to March, 1850, he " did not mistrust any aberration of mind ; " that from 15th March to November succeeding he " perceived some change of mind in very trifling particulars, . . . occasionally a vacancy of mind ; with the exception of that, her faculties seemed 188 TESTAMENTARY CAPACITY. good. . . . After the stupor in November, 1850, she imagined she saw objects which slie did not see. She would not go to bed some- times, saying there were people in bed ; I can't recollect any thing of the kind before ; I think there was not ; I feel pretty positive about it. The vacancy I discovered in March, 1850, was that she wanted to go to her house in Batavia Street ; she said, I want to go home ; I asked, where ? She said, in Batavia Street, where I live, — this place does not look like home." " I perceived no indications of impaired or weakened intellect, or of what is caUed childish- ness, up to March, 1850. She was rather a dignified old lady." Mr. Phinney became acquainted with Mrs. Moore at the funeral of her husband ; saw her once in three or four weeks from that time, till April, 1849 ; and then for about eleven months lived at Alfred Moore's house in Twenty-second Street. He describes the decedent as conversing fluently and intelligently, and states that he first observed a change in August or September, 1849. He says, " It was an optical illusion more than any thing else ; she saw a great many children, persons, horses and carts, where they were not. At the same time, if I told her they were not there she appeared to be satisfied. Before that, I had, I should think, that kind of intercourse with her which would enable me to judge as to the soundness of her mind. Down to that period I saw nothing to indicate unsoundness or aberration. of mind. I wish to be un- derstood, that when the optical illusions passed off, her mind was as clear as ever ; they were only for a short time." ..." Her memory was good ; I never saw any indications of absence of mem- ory ; she always recognized me. I never saw, before the optical illusions occurred, the least failure to recognize persons." Mrs. Phinney, the wife of this witness and a cousin of Alfred Moore's wife, lived in the same house, and was in the habit of daily inter- course with the decedent. She says : " When I first went to Twenty- second Street, her mind was very good, her memory was good, her conversational powers were very good for the first few months. I could not say when I first observed any change in her, but I think as soon as in July. Her memory and sight began to be affected," &c. . . . " I never knew her to fail to recognize any person before she had the difficulty in her sight, and then she recognized them when they spoke. ... I think I noticed no failure in her memory until this defect in sight came on." Mr. Trowbridge, who formed an acquaintance with the decedent PROOF OF MENTAL CAPACITY. 189 when visiting her son at the house in the Third Avenne, and who saw iier once in Twenty-second Street, states that she always knew him and called him by name, and that he " perceived notliing like a failure of mind." Robert Reeder was agent for the decedent's husband fourteen years. He knew Mrs. Moore very well, and was in the habit of seeing and conversing with her frequently, while she lived in Batavia' Street. Froin the time she left there, he did not visit her until May, 1849, when he called at the house in Twenty- second Street. She knew him then " perfectly well," and inquired about their old neighbors. He saw her again in the fall ; had some conversation, and testifies that he observed no failure of " mind, memory, or recollection," on any of these occasions. Mrs. Blount was a pupil at the school of the decedent in 1806, and visited her two or three times a year, some years ago. She saw her in the Third Avenue but once, in the spring of 1849 ; and although they had not met for two or three years, was recognized by Mrs. Moore, who inquired after her mother and sister by name, conversed with her for some time, and stated that she was going to reside in Twenty-second Street. Mrs. Blount subsequently called on Mrs. Moore two or three times that summer, after she had moved to Twenty-second Street. She states that she perceived some " slight defect in memory, but none in intellect," at the in- terview in the Third Avenue ; " her mind was active, but her body otherwise ; " that during the ensuing summer she observed " no change in her mind but in memory, — her memory failed, but noth- ing more than . , . would be common in persons of her age ; " it was necessary to recall some circumstances to her mind, and then she would recollect them and " speak of them as freely and ration- ally as ever she did." Mrs. Robertson, sister of Mrs. Blount, who had once been a pupil of the decedent, and had continued her acquaintance, visited her in company with her mother and sister in October, 1849, and also a number of times subsequently. On the first occasion she says, " It was the first time my mother had seen her since Mr. Moore's death. She spoke of her husband very affectionately, and wished us to go upstairs and see his portrait, to see if my mother would recognize it. She followed us through the entry and tried to go up- stairs, and could not ; she fell in the entry and partially fainted ; she came to ; she was perfectly rational. ... I observed nothing like wandering of mind then ; I never did ; ... I never observed 190 TESTAMENTARY CAPACITY. any wandering or deficiency of mind ; I did observe a failure of memory." Besides the opinions and circumstances tiius given in evidence, there are some other facts tending to show the state of her mind. Dr. Wilsey states that she showed him some plants, and told him the names of several of them ; that he often saw her reading ; she showed him passages in the Bible ; and that she recollected pre- vious conversations. Mrs. Searle saw her at work with her needle. Mr. Birch saw her reading. Mr. Cook says, in August, 1848, he found her reading a book and newspaper, and that in the morning she would take up " The Sun." Mrs. Reeder testifies that, to the death of her husband, she was in the habit of doing her own sew- ing, mending, and washing. Mr. Phiuney says that she was " in the habit of reading daily and almost constantly," in her hymn- books and Testament. Although not of active bodily habits, it appears that while she resided in the Third Avenue she was accus- tomed to go about the house, that she once visited an old friend at the Asylum for Aged Females, and also went to the Greenwood Cemetery. Indeed, I think the evidence abundantly shows that if before the decease of her husband she was so infirm in body and mind as the contestants insist, she subsequently recovered a larger degree of physical and mental vigor. There is a single instance of optical delusion testified to before her husband's decease ; and, though many persons in the habit of constant and familiar inter- course with her have been examined, no similar occurrence is shown from that time until the summer of 1849, more than half a year after the will was executed. It is well known that such delu- sions may exist without the mind being affected, without derange- ment or mental hallucination. In cases of insanity, the delusion is in the mind, and the operation of the senses may at the same time be natural and accurate ; but where the visual organ, or the nerve, or the brain, is so affected as to present to the mind appear- ances having no actual existence, the sense is at fault, and the dis- ease may be indicated without necessarily being accompanied by mental derangement. The case of Nicolai, the celebrated book- seller of Berlin, who laid before the Philosophical Society an ac- count of his sufferings from these spectral illusions, is an instance of this kind. Dr. Wilsey terms this malady in the case of the decedent " a mental defect ; " but I do not think he meant to be understood that it was insanity, for he also alludes to its physical WILL DRAWN OR DICTATED BY BENEFICIARY. 191 character, in characterizing it as " an affection of the brain," com- ing from " a pressure of congestion of the brain." As to her behav- ior wlien she supposed she saw these spectres, Ann Moore says : " I used to tell her she conceited she saw them ; she said nothing." . . . " I have taken her out of her chair to the place in the room where she thought she saw men, to satisfy her there was nobody there. When she returned she would think she saw them again, and I would keep on two or three times." Mr. Phinney says : " It was an optical illusion more than any thing else ; she saw a great many children, persons, horses and carts, where they were not. At the same time, if I told her they were not there, she appeared to be satisfied." ..." When the optical illusion passed off, her mind was as clear as ever." Whatever was the nature of this malady, the only symptom of it before the execution of the will occurred in 1846, and there is no evidence of its appearance again until 1849, when it was indicated only occasionally. On the whole, unless fraud, undue influence, or imposition be established, I do not think the will should be rejected. Alfred was one of the administrators of his father's estate, and May 13, 1850, received power of attorney from his mother. Before that, however, the real estate was sold, Mrs. Moore joining in the deeds with the knowledge of her sons, and the accounts were settled, she receiv- ing one-third of the proceeds both of the real and personal property. In these accounts she was debited with a large sum of money paid to her ; and the balance on the settlement was paid over to her, and the whole matter closed with the privity of all the parties. It does not appear that in that important transaction her competency to act was ever questioned. Nor is there any proof that Alfred exerted any influence over her mind by any abuse of his position as admin- istrator. We are left, therefore, to determine whether the facts, that the will was executed while she resided with him, that he is a beneficiary to a large amount, and gave the instructions for draw- ing the will, are sufficient to invalidate the instrument. These cir- cumstances, in the case of an aged lady, certainly require vigilant examination, in order to see that the testatrix acted freely and with intelligence. Mr. Sandford states, that prior to its execution the will was read to her. She was asked whether it was correct, and replied in the affirmative. The single important feature of the will is the legacy to Alfred, of ten thousand dollars, the remainder of her estate passing as if she had died intestate. It appears that this 192 TESTAMENTARY CAPACITY. gift was designed to enable Alfred to build a house. Mr. Sandford states on this point as follows : " Mrs. Moore, when I read the will, said it was as she wished. She then inquired, if she gave Mr. Moore what she intended to give him to build the house before she died, what the effect of the will would be. I answered that the effect would be to give him the amount twice over. She said she only intended to give him this money to build the house, and she sup- posed the ten thousand dollars would be enough ; but I don't pretend to recollect the language." Again, " I understood Mrs. Moore the object of this legacy was to enable her son to build a house for him- self. She stated that the money would probably be advanced to him shortly, and wished to know what the effect of that would be. I answered, the effect would be to give it to him twice over. To obviate that difficulty, I suggested this paper." The paper in ques- tion was then drawn by Mr. Sandford, and signed by Mrs. Moore making her mark. It directs " the executors of her husband's estate to pay to Alfred the amount of the purchase-money of the lot lately purchased by him in Twenty-second Street from William Menzies, and also the sum he may expend in erecting a house thereon ; " and that the " said sum should be charged to him," on the final settlement of her estate. The facts connected with the execution of this paper not only indicate some reflection on the part of Mrs. Moore, but point out the object of the bequest in question. The intention to make this gift, and the subsequent knowledge on her part of her act in that respect, are established by proof of her declarations at other times, both before and after the will was made. Mrs. Searle says : " Mrs. Moore had spoken to me before that time about what she was going to do ; about two months before she spoke very frequently about it. She said that Alfred had always been a very good boy and very affectionate, and she meant to do something for him if she lived long enough to do it." . . . " Something she had been reading in the newspapers about some child giving a parent trouble brought up the subject. She said Alfred had always been a good and affectionate boy. I never heard her speak about her other children. I think I have seen one or two of the other sons at the house once or twice, but I had not much opportunity of seeing whether they came more fre- quently. The day after the will was made she said, ' Thank God ! that is over.' She asked me how I did ; I said, ' Very well.' She DISCUSSION OP THE TESTIMONY. 193 said, ' I hope I did not fatigue you coming downstairs last night.' I answered, ' Oh, no ! ' and then she said, ' Thank God ! that's over.' She said to me three times, after the first conversation with her about Alfred, and before the will was made, that if she lived long enough she meant to do something for him, but life was very short. I thought she meant life was very uncertain." Mrs. Reeder testified that, in April, 1849, Mrs. Moore informed her that she had given Alfred the money to build the house in Twenty-second Street, " for him and his children, when she would be in the grave." Mr. Phinney states that the decedent spoke to him several times about having given Alfred the means to build the house in Twenty-second Street. " She said she gave him the money because she liked him better than the other boys." Mr. Reeder says : " During the twelve months preceding Mr. Moore's death, I heard her say several times she would make Alfred a handsome present." In the fall of 1849, when he called at the residence in Twenty-second Street, Alfred Moore showed him the house, and the old lady asked Mr. Reeder what he thought of it. He adds : " I said it was a very nice house ; and she said, ' I gave my son Alfred this house.' I replied, ' That's the present, then ; ' and she laughed and said, ' That's the present.' " It thus appears that the will accords with the dispositions, afiections, and inten- tions of the testatrix at other times expressed, — that she had previously designed some special provision for her son, — well understood and knew what she was about when' she executed the will, and suggested a question as to the efifect of the instrument in case she made the advance before her decease, — that she subse- quently spoke of the testamentary act as if relieved that it was off her mind, and at several periods afterwards mentioned to friends that she had given the means for building the house. The evi- dence of capacity, volition, and intelligence, seems to me sufiicient, after the most careful consideration I have been able to give the case ; and I must therefore declare the will duly proved. 13 194 TESTAMENTABY CAPACITY. The following case has long been regarded as a leading one upon the question of the requisite testamentary capacity, and comes from the same learned and sensible' judge who delivered the opiur ion in Comstock v. Hadlyme, supra, Chief Justice Williams of Connecticut. 5. Kinne v. Kinne, 9 Connecticut Reports, 102. 1831. The opinions of witnesses in regard to one's competency to do business are entitled to little regard, unless supported by good reasons, founded on facts wHch warrant them. If one had, at the time of making his will, an understanding of the nature of the business, a recollection of the property he meant to dispose of, and of the persons to whom he meant to convey it, and the manner in which he meant to distribute it, he was possessed of testamentary capacity. All that is required is, that he should have understood the elements of which his will was composed. Jn passing upon testamentary capacity, care should be exercised that singularity be not confounded with insanity, and that a weakened intellect be not mis taken for one that is lost. The opinion of the court was delivered by — Williams, J. In support of the will, the subscribing witnesses only were called. Two of them had but little opportunity to judge of testator's state of mind, and saw nothing to lead them to doubt his sanity. The other witness was the magistrate who drew the will. ■By his testimony, it appears that he had been acquainted with the testator about ten years ; had been previously informed by him that he should call on the witness to draw his will ; that he came on foot about a mile to the house of the witness, attended by a little boy ; dictated the will from some memorandum containing the names of his children, and what he intended to give them ; that he told the witness that he had made a will before, by whom it was drawn, and why he changed the provision for his son Eobert. There is nothing in his conversation, as detailed by this witness, and nothing in the will itself, that would lead any one to suspect insanity, or even imbecility of mind. The coming in of liis wife, and the questions she put as to the effect of a conservator upon the will, are not important, as tliere was no pretence of any undue influence upon her part, or that she interfered at all respecting it. OPINIONS OP UNPROFESSIONAL WITNESSES. 195 Oil the part of the appellants, a number of witnesses were intro- duced, most of whom were of opinion that he was not competent to do business or make a will. The opinions of witnesses on that point are entitled to little or no regard, unless supported by good reasons, founded on facts which warrant them. If these reasons are frivolous or inconclusive, the opinions of the witnesses are worth nothing. Harrison v. Rowan, 3 Wash. C. C. Rep. 587. Upon the facts stated in support of those opinions, the triers will draw the inference as to the state of the testator's mind. It is apparent from all the testimony that the deceased was always a singular man, or, as some express it, " a strange, odd man." That a man of this character, sometimes obstinate, and sometimes fickle, should, as he advanced in years, appear more strange, was to be expected ; and the line between sanity and insanity, in such a case, would be less distinctly marked. It is also to be noticed that this will was made about eighteen months before his death ; and yet witnesses are not particular as to the time of the incidents they relate. His notions of dress, his different opinions at different times about his children's shoes, his mode of making hay, his claim of being able to explain the whole Bible, are facts which would naturally lead to the opinion, which seems to have been universal, that he was a strange man, different in many of his notions from others, and also a fickle man ; though to some he appeared a " strong wayed man," or obstinate ; but these circum- stances certainly do not prove insanity or incompetency to make a will. That, a number of years before his death, he had some difficulty with his wife, of itself, proves nothing. Such a difference may have arisen from a misapprehension of facts, from ill-temper, or from some of those singularities which distinguished the testator. Unhappily, such differences are too common to be referred, as a matter of course, to insanity. . In such cases, the heart is often more chargeable than the head. The charge, which, at a later period, he brought against his wife, of putting the tongs into his bed, to make him uneasy, has a much stronger bearing upon this question. Tlie circumstances, however, attending it, are noti dis- closed ; nor is the time given, with any accuracy. I presume it must have been after he was confined to his bed, and his position became very irksome to him. The testimony relative to the note, , which had been taken up, certainly shows that he had lost the 196 TESTAMENTARY CAPACITY. recollection of that particular transaction. At what tirne that was, however, does not appear ; nor will a single fact of this kind justify the supposition of an entire loss of memory. His application to the Rev. Mr. Fowler to draw his will, the loss of his memoravr dum, the incoherence of his ideas in consequence, and his declaring that he had left it with Mr. Fowler, show that the course that Mr. Fowler took, at that time, was very proper, but by no means prove- a loss of reason. The fact that he had been there before on the business might very naturally lead him to believe that he left his memorandum there ; and the loss of such a paper would very likely create some confusion in the ideas of a man younger than the testator. As to his stories being told very often, this has been common from the first history of the aged ; and that they should be sometimes more and sometimes less embellished, is no new event. The condition of this man is well described by his physi- cians, and, I think, is a fair summary of the whole testimony. " For two or three years before his death," says Dr. Burgess, " he failed in mind, as well as body ; he was not as competent as he once was." This was his condition before he was confined to his bed ; and this has bepn the general history of all who have been permitted to number as many years as Manuel Kinne. Perception blunted, judgment weakened, and less competency for business ; such are the usual attendants of old age. The events which have been mentioned, as occurring after he was confined to his bed, his unkind remarks about his wife, his animosity to others, his incoherent remarks, — having all occurred after the will was made and while he was gradually sinking, — are entitled to but little weight, and are not evidence at all, except to show his state of mind. when the will was made. For the sole question is, what was his state of mind at that time ? Had he then an understanding of the nature of the business he engaged in ; a recollection of the property he meant to dispose of, and of the persons to whom he meant to convey it, and the manner in which he meant to distribute it between them ? " His capacity," says Judge Washington, " may be perfect to dispose of his prop- erty by will, and yet very inadequate to the management of other business, as to make contracts for the purchase or sale of prop- erty." Harrison v. Rowan, 3 Wash. C. C. Rep. 586. I think the mistake in this "case has arisen from the fact, that as the testator was not in a condition which would justify his transacting all kinds DEGREE OF MENTAL CAPACITY REQUISITE. 197 of business, it has been supposed, he could not do this. But, says the same venerable authority, " It is not necessary that he should view his will with the eye of a lawyer, and comprehend its pro- visions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, — the disposition of liis property in its simple forms." Harrison v. Rowan, 3 Wash. C. 0. Rep. 585. Tliere being no evidence of permanent derangement or mental imbecility before he made his will, we have only to inquire what was his state of mind at that time ; and unless the magistrate who drew the will was grossly deceived, or has attempted to deceive the court, neither of which we have any reason to suspect, the testator did under- stand what he was doing, and the reasons for varying the former disposition of his estate. There being no evidence directly opposed to the testimony of the subscribing witnesses, or impairing it, except in a very remote degree, I must think that the verdict was wrong. It is said that the jury are the proper judges of testimony and its weight; and that a new trial will not be granted, where there is evidence on both sides. The first of these objections would prove that a new trial could never be granted for a verdict against evidence, and as to the last, the rule is settled that a new trial may be granted where the verdict is manifestly against the weight of evidence. Hammond v. Wadhams, 5 Mass. Rep. 353 ; Johnson V. Scribner, 6 Conn. Rep. 185, 189. That this is a case of that kind, I cannot doubt. Questions of this kind, as well as all other questions arising upon appeals from probate, have, until lately, been exclusively within the jurisdiction of the court ; and some uniformity of decision has been preserved. And although it is no cause of regret that the legislature have iiow authorized the aid of a jury in these questions, yet it still remains tiie duty of tlie court to endeavor to preserve something like uniformity of decision ; and to take care (where there is no known standard) that sin- gularity be not confounded with insanity, and that a weakened intellect be QOt mistaken for one that is lost. Our law has kindly allowed our citizens to select the objects of their bounty, among whom to distribute the fruits of their labor, when they can them- selves no longer enjoy them. This is an indulgence dictated by benevolence. Dispositions of property, made in this way, are not unnecessarily to be disturbed. Courts have rather sought to estab- lish them. 198 TESTAMENTARY CAPACITY. Believing that there is, in this case, no proof of the incapacity of Manuel Kinne thus to dispose of his estate, at the time he attempted it, I think there must be a new trial. 6. Cordrey v. Cordrey, 1 SoustorHs Delaware Meports, 269. 1856. The following opinion of Chief Justice Harrington, although given in the form of a charge to the jury, contains a repetition of most of the important decisions of the Court of Errors and Ap- peals, in that State, upon the question of testamentary capacity, and will be found to embrace a valuable summary of the law upon that subject. The formal execution of the will being established, the presumption of law is in favor of the capacity of the testator to execute it. All that the law requires, to enable the testator to execute a valid will, is, that he be capable of exer- cising thought, reflection, and judgment. If he knew what he was about, and had memory and judgment, it is sufficient. The inquiry is not whether the testator had perfect mind and memory, but whether he had sufficient thought, judgment, and reflection to comprehend the act. A knowledge of what he was about, and how he was disposing of his property, and the purpose so to do it, are all the law requires to constitute testamentary capacity. Undue influence, in the case of one of testable capacity, must be such as to take away his free will ; such as he is too weak to resist. Mere solicitation, although it may result in modifying the will, is not sufficient to avoid it [until it amounted to practical compulsion, in order to buy peace] . The facts will sufficiently appear in the charge to the jury by — Harrington, C. J. The question presented in this case has been frequently before this court, and we have, therefore, but little more to say upon it than we have often had occasion heretofore to say in regard to it. The formal execution of the will being established in accordance with the provisions of the statute on the subject, the presumption of law is in favor of the capacity of the testator to make the will. But to speak more specifically as to the degree of capacity required for this purpose, when it has been assailed by rebutting testimony, tlie court remarked, in the case of Chandler and Others v. Ferris, 1 Harr. 454, " that if the testator was capa- ble of exercising thought, judgment, and reflection, if he knew DEGREE OP MENTAL CAPACITY REQUISITE. 199 what he was about, and had memory and judgment, his will could not be invalidated on the ground of insanity." In the case of Duffield V. Morris's Ex'r, 2 Harr. 379, the court said : " A perfect capacity is usually attested by this, that the individual talks and discourses rationally and sensibly, and is fully capable of any rational act requiring thought, judgment, and reflection. This is the standard of a perfect capacity. But the question is not how well a man can talk or reason, or how much judgment he can dis- play, or with how much propriety and sense he can act : it is only, Sas he mind and reason ? ea7i he talk rationally and sensibly ? or has he thought, judgment, and reflection ? Weakness of mind may exist in many different degrees without making a man intes- table. Courts will not measure the extent of people's understand- ings or capacities. If a man be legally compos mentis, be he wise or unwise, he is the disposer of his own property, and his will stands as the reason for his actions " And in a still later case, Sutton V. Sutton et al., 5 Harr. 461, on this point the court ob- served : " The objections in this case are, that the testator, from age and weakness, was at the time a man of doubtful and fluctuat- ing capacity, operated upon by improper influences to make changes in his will, contrary to his real wishes and at variance with his known affections. Testable capacity in such a person as John Sutton, the testator, will amount to nothing more than a knowl- edge of what he was about, and how he was disposing of his prop- erty, and the purpose so to do it. And as to undue influence over a man of testable capacity, it must be such as to take away his free will ; such as lie is too weak to resist. Mere solicitation will not be sufficient to vitiate a will made by a person having a knowledge of what he is doing, and intending to do it, though his act may be brought about by solicitation, or that kind of influence which a dis- position to gratify another may produce." The simple question in this case, therefore, is. Did the testator know and understaind what he was about when he made and executed this instrument pur- porting to be his will, — that he had a family, and the relations in which he stood to it, and that he had property, and what it was, and had a will or desire to bequeath and devise it, as it is disposed of in this instrument ? If so, then so far as this question is con- cerned, it ought to be found to be his will ; but if otherwise, it should not. 200 TESTAMENTARY CAPACITY. 7. Morris v. Stokes, 21 Georgia Reports, bb2. 1857. The sayings of a single legatee, although the principal one, in regard to the mode of obtaining a will, are not admissible to defeat the entire will, unless a con- spiracy or combination among all the legatees to obtain the will by unlawful means be first shown. But such testimony is admissible to defeat particular legacy of that party, on the ground that it was procured by fraudulent means. And the jury may, by the same verdict, establish the remainder of the will. The declarations of the party who procured the will to be executed in connection with his acts in procuring it, whether himself a legatee or not, may be shown as part of the res gestae, and tending to defeat the entire will. If the testator was not wholly destitute of understanding and judgment at the time of executing his will, it may be upheld. As to the degree of influence which the law regards sufficient to defeat a will, it must destroy the testator's free agency. In the language of Mr. Williams, " There must be proof that the act was obtained by force and coercion ; by importunity which could not be resisted ; that it was done merely for the sake of peace ; that the motive was tantamount to force and fear." Where a guardian obtains a will from his ward in his own favor, by such acts of kindness and indulgence towards him as would be perfectly allowable between those in independent relations, it will, nevertheless, defeat the testament so obtained, as between guardian and ward. Here there should be the most satisfactory evidence that no improper influence was brought to bear upon the testator to induce him to make the will in favor of his guardian. The opinion of the court was delivered by — Lumpkin, J. Were the sayings of John L. Lewis, a principal legatee, and a real, though not a formal party to the record, admis- sible ? We are called on for the first time to decide this question. It has become a settled rule of this court, that the admissions of the propounder of the will, who is also a legatee for a large amount, may be proven. And this proposition is abundantly sustained by authority. But here the will is propounded for probate by an- other. Can the sayings of a principal legatee be received in this issue ? We think so, in all cases, so far as his own interest is to be affected. And the jury, upon sufficient proof, may strike out his legacy and establish the balance of the will, so that a will may be good as to one party, and bad as to another ; valid as to some parts, and invalid as to others. Trimlestown v. D'Alton, 1 Wms. on COMPETENT TESTIMONY. 201 Ex'rs, 43 ; 1 Dow, N. s. 85, decided in the House of Lords, on appeal from the Irish Chancery. Beyond this we cannot find sufficient authority to go. There is one reported case in Massachusetts, wliich goes to the extent of allowing the testimony to come in, so as to affect all who take under the will. 1 Pick. Eep. 192. But it is uusustained, and is considered irreconcilable with the general doctrine laid down, both there and elsewhere. Let a community of purpose or joint interest be first made out between all the legatees, and then the ad- mission of one may bind the rest ; not otherwise. It is said, that if the will was procured by fraud or undue influence, that the whole will must fail, and the innocent legatees suffer in common with the guilty. True ; but how is the fraud or undue influence to be established? By independent proof, and not by acknowledg- ments of one of the parties. Take a stronger case. Here is a will coerced by the duress of A. A. and B. being both legatees. Is it allowable to prove the duress by the confessions of A. to the prejudice of B. ? Upon principle, we hold not. Phelps v. Hart- well, 1 Mass. Rep. 71. Now, any acts or declarations in connection with those acts, by John L. Lewis, in reference to the will, are competent evidence. His application to counsel to write a will for Philips, and what he said at the time, as well as what he did, can be testified to, even should the effect be to set aside the whole will. This testimony stands upon a different footing. The answer of Dr. Lyon, that " he thought " it was John L. Lewis that told him so and so, is objectionable for uncertainty. He ought to be positive that it was John L. Lewis that made the statements to which he testifies. The repetition of mere oral state- ments is subject, at best, to much mistake, and can only be satis- factory when deliberately made and precisely identified. It would seem, therefore, that there ought to be no uncertainty as to the person who made them. Our first impression was to exclude the proof of the decree in chancery, and the sale under it, for irrelevancy ; but, upon further reflection, we concluded that as it was a breach of trust on the part of the guardian to obtain this decree, and sell the property under it, it might serve to show the strong motive he had to pro- cure the will to be made foj* his indemnification. We see no sufficient reason why the long dialogue which was 202 TESTAMENTARY CAPACITY. held at sundry times and places between Lyon and Lewis should" not, the whole of it, be admissible. Lewis understood distinctly what Lyon charged. He had an opportunity of speaking and denying it. It was calciilated to call forth a reply from one so situated, and yet, to many things said, he was silent ; others he answered. His passiveness must be construed into acquiescence as to the rest. Indeed, he admitted the main facts, and justified himself upon the ground that it was necessary to get the will made to disinherit the Philipses. This was a feigned reason, and Lewis was too intelligent not to have known it. We come now to the charge of the court. Respecting the sanity of the testator, the court charged that, " be the testator wise or unwise, yet he was capable of willing his property, unless totally deprived of reason." It is complained that the rule thus stated, as to the standard or measure of testamentary capacity, is wrong. We are not prepared to say that even this language is too strong. The English courts say upon this subject, " Courts will not measure the degree of understanding, and say that a weak man, provided, he is out of the reach of a commission, may not give as well as a wise man ; " and case upon case can be cited which go to the extent of deciding that unless the failure of understanding be quite total, reaching to the testator's forgetfulness of his immediate family and property, he is not disqualified from making a will. The weak have the same rights with the prudent and strong-minded to dis- pose of their property ; and if imbecility, and not a total absence or perversion of mind, should constitute inability to act, it is im- possible to draw any clear line of demarcation, — one which would be practicably available. At the same time, I would add, that weakness of mind, which does not amount to testamentary inca- pacity, may be given in evidence, for the purpose of showing that the testator might, for that reason, be more easily influenced by others. Nay, more, if it be made out by proof that a dominion is acquired by any person over a mind of sufficient sanity, for general purposes, and of insufficient soundness and discretion to regulate his affairs in general, yet if such a dominion or influence were acquired over him to prevent the exercise of such discretion, it would be equally inconsistent with the idea of a disposing mind, and would certainly destroy the will. The courts, after all that has been said and written upon this MENTAL CAPACITY REQUISITE ; UNDUE INFLUENCE. 203 subject, have shed but little additional light upon the old English rule. Their disquisitions have served to furnish materials for digests and treatises ; still the rule is, if the testator be not lunatic, idiot, or non compos mentis, he may make a will, so far as capacity is concerned. The court further insti'ucted the jury, that as to the character of the influence which would invalidate a will, that it must amount to " force and fear." It is objected that this is too strong. Upon this point, also, no tangible distinction can be attained. The only test is, is the testator's free agency destroyed ? Does he cast a stealtliy and timid glance at the party controlling him, and seem to breathe freer in his absence ? Who has not seen the down-trodden wife cower and tremble under the look of her lord ? One thus subjected to the dominion of another should scarcely ever be allowed to make a will in tlieir favor. But Mr. Williams uses the very words employed by Judge Worrill; he says : " There must be proof that the act was obtained by force and coercion ; by importunity which could not be resisted ; that it was done merely for the sake of peace ; that the motive was tantamount to force and fear." 1 Wms. on Bx'rs, 39. The only other point made upon the charge is, that the court instructed the jury that " if by acts of kindness, Lewis (the guar- dian) procured the will to be made, that will not vitiate it. If he provided him with horses, money, jewelry, and fine clothes, with a view to procure the testator to make a will in his favor, tiiat will not amount to such undue influence as to vacate the will." Perhaps of itself it would not. Certainly it would not, as between persons occupying a different relation toward each other than that of guardian and ward ; and not necessarily perhaps even in that case, provided the indulgence shown to the ward was such as was justifiable, considering his state and condition in life. But it will never do, for this or any other court, to indorse the doctrine that a guardian may squander the property of his ward, in procuring for him injurious indulgences, and that for the purpose of inducing the ward to give him his property. Whether the articles referred to in the charge were suitable for the ward, we cannot say. A young man at his age and of his fortune is, in my opinion, entitled to wear a gold watch, to have fine clothes, to keep his gun and dog ; and, I would say, his horse and buggy, especially considering that he was an invalid. The proof in the record is silent as to the 04 TESTAMENTARY CAPACITY. stent of this expenditure, some allusion is made to it by the tes- itor himself, in the second item of his will, in which he says : — " I have received money and property from my guardian, John I. Lewis, for which he has no receipt. It is my will and desire lat my executors do allow him a credit for ten thousand dollars, ithout requiring any vouchers from him ; and also, that they How him credit for his account for any money paid out for clothes, oard, education, and travelling expenses, horses, and other things rr me, on his making affidavit to the same. And also to give him redit for any receipts which have not already been exhibited and llowed by the court, and to allow him commissions on all, as if le same had been passed by the Court of Ordinary," &c. We must think the charge upon this point, without qualification r explanation, was too broad : the influence of a husband over his ife, who has a separate estate to dispose of by will, an attorney i^er his client, and a guardian over his ward, are all looked upon ith the same suspicion and disfavor by the courts. In Huguenin v. Baseley, 14 Ves. 273, the first head-note is, " vol- ntary settlement by a widow upon a clergyman and his family set side, as obtained by undue influence and abused confidence in the efendant, as an agent undertaking the management of her affairs, pon the principles of public policy and utility, applicable to the jlation of guardian and ward.^' So, Sir Samuel Romilly, and the eminent counsel who argued lat case, contended that the authorities against permitting a ansaction of bounty to take effect between persons standing in jrtain relations are numerous, and that amongst those relations lat of guardian and ward is not for tliis purpose confined to per- )ns so related in a strict sense, as under an appointment of guar- ian by will or by order of the court, but that the rule included any jrson placing himself in that situation. Ibid. 279, 280. Thus it will be perceived, that the abuse of influence growing it of the relation of guardian and ward is put uniformly, as re- liring more watchfulness than any other, and any gift from the ard to the guardian will be more thoroughly scrutinized and fted than any other. The case of Pierce v. Waring, cited in Gray v. Mansfield, 1 Ves. m. 379, is a striking illustration of this doctrine. Waring was lardian of a Mr. Hall, who lived with him ; had horses, dogs, &c., jpt by him ; Hall's visitors were all entertained at Waring's own UNDUE INFLUENCE. 205 house, when Hall stood candidate for Ludlow. After coming of age, Hall made Waring a gift of ^3,000 East India stock, for his many kindnesses and services. Hall was satisfied with the gift, and did not dispute it ; but his representatives, after his death, brought a bill to set it aside. There was no proof of imposition : the only circumstance was by conjecture, as if Hall did not know what the stock was worth. The Lord Chancellor, November 13, 1745, set it aside, upon the general principle, not upon the not knowing that it was worth more, but that it was a consideration for which he would be allowed nothing in that court ; that it was a dangerous example, and he would not indorse a gift to be obtained on these circumstances after the coming of age. Similar examples could be adduced to an indefinite extent. But it is insisted that this doctrine applies to deeds, and not to wills. Wherefore ? Why to the one more than the other ? These adju- dications are put upon the ground of public policy. Is there any difiFerence in this respect between deeds and wills ? In Waring's Case, Lord Hardwicke said, " Waring had been concerned as guar- dian, and as soon as the infant came of age, made up the account and retained that gratuity to himself, the same influence of the guardian continuing, being done, when his effects were to be de- livered over." 2 Ves. Sen. 260. Was not this influence existing much more potentially, wiiile the ward of Lewis was still a minor, and the relation of guardian still subsisted ? Will a deed made even after the ward has come of age be set aside, and a will made during the infancy not be questioned ? Counsel have submitted no authority to justify any such distinction. I have met with none. On the contrary, in Ingram v. Wyatt, 3 English Ecc. Rep. 167, 1 find these very cases which I have cited, and others quoted by Sir John Nicholl, to show in cases of wills with what particular jealousy and anxiety courts will guard all persons occupying these fiduciary relations, from the abuse of that influence which must necessarily result from it. That an infant of fourteen years and upwards is capable of disposing of his personal estate by will, is a well-settled doctrine of the common law. Testaments of this sort are rare, however, not because it seldom happens that minors have property to dispose of, but because they are generally willing that the wise disposal of the law should take its course, and the feeling of the country is against it. Still, if one chooses to exer- cise this right, he is entitled to do so. I do insist, however, that, 206 TESTAMENTARY CAPACITY. considering the want of discretion in minors, which may appear from the disposition actually made of their effects, as well as from other circumstances, the court should exercise great caution in seeing to it, that all is right, especially when the estate has been diverted from the channels which the law has established. In such a case, the law will be still more jealous to protect the unwary against undue control, especially where a relation of confidence like that of parent and child, husband and wife, client and attor- ney, guardian and ward, exists. 8. Duffield V. Morris, 2 Harrington's Delaware Reports, 375. 1838. The following opinion of the same eminent judge before quoted, although in the form of a charge to the jury, is so carefully prepared and so clearly expressed as to be entitled to great con- sideration. We have, therefore, deemed it the best matter we could here give in illustration of the important questions therein discussed. The formal execution of the will being proved, the burden of showing either mental incapacity or undue influence rests upon the contestants. Sanity is always to be presumed, until the contrary be shown. The mind, although weakened, is to be held sound for the purpose of making a will, until there is a total loss of understanding, or idiocy, or the existence of delusion. So long as one is compos mentis, he may make his will, if not exposed to any" undue influence. Insane delusions are such as no sane person ever entertains, or ever could enter- tain. Partial insanity will defeat a will in any way produced or aifected by it. Testamentary capacity implies that the testator knew what he was doing, and how he was doing it. In doubtful cases, the dispositions of the will afford great aid in determining the capacity of the testator. Suicide is no ground of presuming insanity, but it may be considered in connec- tion with other testimony, as tending to show mental perversion. If insanity be shown to exist before the making of the will, its continuance is presumed, and it is necessary to show a lucid interval at the time of its execution, which is difficult of proof, and must be clearly shown. "Drunkenness may destroy testamentary capacity for the time, or, if long con- tinued, may destroy it permanently, by producing imbecility or insanity. ^ Undue influence to defeat the will must destroy free agency ; must amount to force or fraud. PRESUMPTION IN FAVOR OP SOUND MIND. 207 The opinion of the court by — Harrington, J. That the factum or formal executioji of the will was proved, so as to throw it on the caveator to show that it was not the will of Doctor Morris, either by establishing that at the time of making it he had not sufficient mind and judgment, or such a disposing memory as would enable him to make a will, or that, having such a capacity, it was restrained and controlled by another's influence over him. That the question was one of very considerable importance to the parties ; and, from its nature, such as is always attended with difficulty in deciding upon. It involved a discussion as to mental qualities, — a subject sufficiently abstruse in itself ; and, in addi- tion, it involved an inquiry into the strength and operations of an individual mind on evidence furnished through the uncertain medium of other minds, with the coloring and impress which the peculiar structure of each one gives to the facts whicli it details. Neither was it a subject upon which the court could afford much assistance to the jury. It does not admit of generalizing. Though much has been said and written about it with a view to point out the marks of insanity, to explain what is meant by a sound dis- posing mind on the one hand, or an unsound mind on the other, the judgment is at last to be formed on the facts and circumstances of each particular case. For, as insanity is the aberration of rea- son, no man can undertake to point out the path of the benighted wanderer, or to pronounce witli certainty when the light of reason is extinguished. General rules may doubtless be laid down in reference to decided cases of insanity, of glaring, raging madness ; ■ but these are not the cases usually presented on trying the validity of wills, where juries have to perform the more difficult task of marking the borders between reason and insanity, — the extreme point where mind and memory surrender their government of the individual to fatuity and delusion. Reason, being the common gift of God to man, raises the general presumption that every man is in a state of sanity until the con- trary be proved. Every man, therefore, of full age has the right to dispose of his property by will, unless he can be shown to be insane, non compos mentis, of unsound mind, or wanting what is called a sound disposing mind and memory. A sound mind is one wholly free from delusion ; all the Intel- 208 TESTAMENTART CAPACITY. lectual faculties existing in a certain degree of vigor and harmony ; the propensities, affections, and passions being under the subordi- nation of the judgment and will, the former being the controlling power, with a just perception of the natural connection or repugnancy of ideas. Weak minds, again, only differ from strong ones in the extent and power of their faculties ; but unless they betray symp- toms of a total loss of understanding, or of idiocy, or of delusion, they cannot properly be considered unsound. Shelford on Lunatics, 25. A perfect capacity is usually tested by this, that the individual talks and discourses rationally and sensibly, and is fully capable of any rational act requiring thought, judgment, and reflection. Tliis is the standard of a perfect capacity. But the question is not how welk a man can talk or reason, or how much judgment he can display, or with how great propriety and sense he can act : it is only, Mas he mind and reason? ean he talk rationally and sensibly? or has he thought, judgment, and reflection ? Weakness of mind may exist in many different degrees without making a man intes- table. Courts will not measure the extent of people's understand- ings or capacities. If a man be legally compos mentis, be he wise or unwise, he is the disposer of his own property, and his will stands as the reason for his actions. Ibid. 24. Insanity is in many cases a state of mind not easily reducible to any correct definition, and not easily ascertained. It may subsist in various degrees, sometimes slight, as partaking rather of dis- position or humor, which will not incapacitate a man from man- aging his own affairs, or making a valid contract. It must be something more than this ; something which affords demonstrative proof of the incapacity of the individual to manage his own con- cerns and dispose of his own property. Madness, when not rav- ing, is sometimes an invisible quality, but it generally discovers itself ; it presents its symptoms ; it betrays and accuses itself by the most ordinary actions. The habits, the exterior appearance, the conversation, and other actions of a man, may furnish proofs of insanity on account of their extravagant and unreasonable nature. But as it is an habitual state or disposition, and generally a permanent affection of the mind, its existence must be proved, not by one instance of unreasonable conduct, but by repeated acts and multiplied actions, testified to by persons who have been atten- tive observers of them. Ibid. 23. An unsound mind is marked by delusion ; it mingles ideas of INSANE DELUSION. 209 imagination with tliose of sensation, and mistakes one for tiie other. It is often accompanied by an apparent insensibility to or perversion of tliose feelings which belong to our nature. Insane delusion consists in the belief of facts which no rational person would have believed. It may sometimes exist on one or two par- ticular subjects, though generally it is accompanied by eccen- tricity, irritability, violence, suspicion, exaggeration, inconsistency, and other marks and symptoms which may lead to confirm the existence of delusion, and to establish its insane character. In- stances of delusion on particular subjects, or partial insanity, are recorded where the judgment and reasoning faculties were not only unimpaired on all other subjects, but where the monomaniac was in other respects remarkably acute and shrewd. Ibid. 26. These are cases of great difficulty. It is hard to define the invisible line that divides perfect and partial insanity. Each case must rest on its own circumstances. The rule laid down by Lord Hale as to criminal matters is, that " such a person as laboring under melancholy distempers hath yet ordinarily as great under- standing as ordinarily a child of fourteen years hath, is such a per- son as may be guilty of treason or felony." And this doctrine of partial insanity is applicable to civil cases, if existing at the time of the act done, and will avail to defeat a will, the direct offspring of such partial insanity. But it has been held tliat a will cannot be set aside on the ground of monomania, unless there be the most decisive evidence that, at the time of making the will, the belief in the testator's mind amounted to insane delusion. , And it was for the jury to say whether this is a case of monomania ; whether there was any topic or matter upon which the testator's mind was in a state of delusion, which, whenever this string was touched, produced symptoms and evidence of insanity which could not be mistaken. Doctor Morris, the testator in this case, is admitted to have been at one time a man of sound mind. He was a man of liberal edu- cation and of much respectability in one of the learned professions. He is proved to have possessed the common affections of our nature, to what extent, and towards whom directed, and in what degree, it would be important for the jury to determine. Whether habits of intemperance or other causes impaired or destroyed this mind, perverted, or changed, or weakened these natural affections, and in what manner, and to what extent, were also important questions 14 210 TESTAMENTARY CAPACITT. for their determination. He made a will on the 7th of Novemher, 1836, and again, for reasons which have been detailed, he executed another will, which is the paper now trying, on the 8th of Novem- ber, 1836. This is the important period of inquiry as to the state of his mind. Had he then, at the time of executing that paper, a sound disposing mind and memory ; could he converse rationally and act with judgment and reflection in reference to the matter he was about ; had he, as this court put it to the jury in the case of Masten v. Anderson, sufficient mind to know that he was making a will, and to understand what was implied in that act ; or, on the other hand, was he at that time the victim of insanity, unable to distinguish between things that were real and the vain creatures of his own imagination, or a miserable monomaniac, laboring under a fixed delusion in regard to some subject which no rational mind could entertain, and which had a direct influence or bearing on the will. The paper itself, which was before the jury, would afford impor- tant aid in determining the question of insanity. Are its dis- positions in accordance with, or in opposition to, the previously expressed purposes and known affections of the testator ? The internal evidence that it afibrds, with all the circumstances which surrounded it, may be fairly brought to bear on this question, remem- bering that, whilst we are looking into the will itself for evidences of sanity or insanity, we are not to make a will for the testator ourselves, but to let his will be the reason for his act, unless some- thing appear plainly inconsistent with sanity itself, or with his previously expressed and deeply fixed purpbses. The day after the execution of this paper Doctor Morris com- mitted suicide, and this introduces another important question as to what operation and weight this fact ought properly to have in determining the question of sanity or insanity at the time of mak- ing the will. This, also, is a question of fact for the jury, to be dprobable that drunkenness, long WHAT AMOUNTS TO UNDUE INFLUENCE. 213 continued or much indulged in, may produce on some minds, and witli some temperaments, permanent derangement, fixed insanity. It has not been contended that Doctor Morris was the subject of mania a potu ; but the attempt has been to show that, from intem- perance and other causes, a permanent state of deranged intellect, a morbid delusion came upon him, which resulted in tlie taking his own life. This was the great question for the jury to try, whether Doctor Morris was the subject of such insane delusions, fancying things which did not exist and could not exist, and which no reasonable mind could believe to exist ; did this delu- sion continue up to the time of making his will, without intermis- sion at that time, and to such an extent as to exclude thought, judgment, and reflection ; to deprive him of the power of rational conversation on the matter he was about, and of that kind of knowledge that would enable him to apprehend in his own mind that he was making a will, and the objects and purposes of such an act ? If he had this knowledge, memory, and judgment, it is what the law means by a sound disposing mind and memory, which is sufficient to make the will valid, whatever may have been the state of the testator's mind before or after. On the other question, whether this will is vitiated by the undue influence exercised over the testator by the respondent or others, the court charged the law to be, that importunity will not vitiate a will unless it be extended to. such a degree as to take away the free agency of the testator, such as he is too weak to resist, 3 Stark. 1707. The influence must amount to force and coercion, destroying free agency ^Shelford, 829) ; it must not be the influ- ence of affection and attachment, nor the mere desire of gratifying the wishes of another, for that would be very strong ground in support of a will. Further, there must be proof that the will was obtained by such coercion, and made merely because the testator could not resist the importunities to make it. , It is also true as a principle of law, as it is in accordance with reason, that if the will be written by a person who is benefited by it, or by a person standing in the relation of counsel or attorney, and who is also benefited by it, — these are circumstances to excite a stricter scrutiny, and require stricter proof of volition and capacity. The increased strictness of proof arising from the fact that the will was drawn or written by a person who is the counsel or attorney of the party, and who is benefited by the will where such facts exist, is 214 TESTAMENTAEY CAPACITY. just such as will satisfy the jury that the testator was not imposed on, but that he knew that the will was in favor of the person who drafted it. Such proof is supplied by evidence of instructions given to the writer, that the testator read over the will, being of sufficient capacity to understand what he was reading, or by other evidence showing that he knew the will was in favor of the writer. Shelford, 325, 326. The court also told the jury that they should weigh the testi- mony in a case of this kind, not merely on the character of the witnesses for veracity and integrity, but also with reference to their intelligence and powers of observation. And there is this distinc- tion between the subscribing witnesses to the will and other wit- nesses, — the law places witnesses around the testator at the time of making his will for the very purpose, among other things, to ascertain and judge of his capacity ; they may, therefore, testify as to the opinion they formed of the testator's mind at the time of executing the will. Other witnesses may testify to the appearance of the testator, and to particular facts from which the state of his mind may be inferred, but not as to their opinion or judgment merely of his sanity or insanity, without stating the facts from which they draw their conclusions. The testimony of medical men stands upon the same ground, except that, being more com- petent to form an opinion upon subjects of this kind, greater weight will, in general, be given to such opinions. Any extended commentary upon the decided cases upon the question of testa- mentary capacity would not be useful here. The t*o great divisions into which testators, claimed to be incompetent, naturally divide themselves, are (1) such as have become too infirm and weak-minded, either from age, or disease, or natural infirmity, and (2) such as are suffering under disease or inordinate excitement, and consequent mental alienation, or perversion. In the intermediary ground between these two classes there exists an almost infinite variety of shades or degrees, par- taking more or less of the character of the one or the other, and often of both. 1. In the case of mere mental weakness, the first inquiry will naturally be, whether it had become so extreme as to incapacitate the testator for the under- standing comprehension of the transaction of the execution of his will, at the time of the formal testamentary act. This will depend somewhat upon the simple or complex nature of the instrument, and often, to some extent, upon the amount of the testator's property, and its condition, in regard to being separate from entanglements and complications with that of other men, as well as the state of his family. For it is too obvious to require much argument to establish it, that a testator, in great feebleness of body and mind, might be able to make an understanding disposition of a few thousand dollars, clearly invested in CHARACTER OP WILL. UNDUE INFLUENCE, 215 lands or stocks, or other personalty, among his wife and children, when he might entirely fail to make a judicious or an understanding disposition of the expecta- tions to result from different and numerous complications in an extended and unsettled business, among his personal friends and remote collateral relatives. Hence it will always be an important consideration, in all cases where testamentary incapacity is alleged, whether the dispositions are simple or complicated, and espe- cially how far they are natural and probable, or the contrary. And consequently we are always guided, to some extent, by the consideration whether the testator had long entertained testamentary intentions similar to those embodied in the will. After receiving, from the evidence, reasonable assurance that the testator had sufficient mind remaining, at the time of executing his will, to comprehend the nature of its dispositions, and that he probably did understand them, the next and all-important inquiry is, to assure ourselves that no improper influence was brought to bear upon him, so as to make the provisions of the will the offspring of such influence rather than of the unbiassed judgment of the testator. For although persons of the clearest understanding are not always beyond the reach of undue influence in making their wills, it certainly requires no special degree of watchfulness on the part of courts to guard the great majority of testa- tors from such influences. But in regard to testators of advanced age, or acknowledged mental infirmity, from any cause, there can be no duty more im- perative than to exercise the most extreme watchfulness, to secure the testamen- tary act from the intrusion of any alleged undue influence. Not that courts are to imagine or to improvise evidence, or to magnify its natural force, but only that, while viewing the case in the utmost charity and with sincere desire to find all right and legal, they are, at the same time, to remember that where undue influence is alleged in such cases, and evidence given to show its existence, the results of universal experience are not to be ignored or studiously explained away in order to establish a will, which is either the mere shadow of the disposing mind required for its understanding execution, or else reflects the mind of the scrivener, or the legatees, or others, more than that of the testator. As we shall have occasion to pursue this topic further, under another head, we say no more here. • 2. Where mental aberration or perversion is alleged, the great inquiry will be, how far the disease has progressed ; or, in other words, whether the mental perversion be only occasional and with reference to particular subjects or questions, with long intervals of apparent mental soundness; or whether it has involved the general structure of the mind and will, so as to allow of but occasional and transitory intervals of clear and natural mental action. We may here men- tion, as illustrative of these points, the leading facts in a case which a few years since came under our own view professionally. The testator had executed his will on the 23d of June, and on the night of the 29th of the same month he had destroyed it, by burning it with most of his other papers ; expressing great regret in the morning at having destroyed his will, because he feared he might not be able to execute another, and have it valid. And when asked how he came to do it, said he supposed the devil put it into his head. He almost immediately thereafter became clearly and thoroughly insane, and was carried to an asylum, where he died insane, within a few weeks. Those interested under the will, at first sup- posing the will could not be proved, or more probably not knowing that the 216 TESTAMENTAET CAPACITY. destruction of the will while in a state of mental aberration could not affect its validity, made no effort to establish it ; but finding that the solicitor who drew it had retained three successive drafts of it, and that he was ready, with all the witnesses, to certify to the apparent entire mental soundness of the testator at the time of the execution of the will, and that he was regarded as insane at the time of its destruction, and the consequent invalidity of the act, as a revocation, presented the same for probate. The evidence showed that for some weeks before the execution of the will he had been subject to short periods of extreme mental depression, with intervals of many days of bright and cheerful views, and clear and natural mental perceptions. His depression took the form of religious self-abasement and self-accusation. He feared he should soon die ; sent for his physician and his minister, and, at first, soon obtained relief; but the periods of depression increased in severity and duration, until they involved the whole mind, and he became a confirmed imbecile, and died so. Very soon after these depressions became serious he began to set about making his will, and had long expressed an earnest wish not to die intestate. He was himself an educated member of the bar, and was the son of one of the most distinguished counsellors of the Suffolk bar in the last generation. He employed a competent and highly conscientious solicitor to draw his will, and made his dispositions with the utmost consideration and carefulness, having three or more successive drafts of it made, each of which he took home and cor- rected before he became entirely satisfied with its provisions, when he executed it in due form. He had never married, and had no relatives nearer than cousins and an aunt, and one uncle who resided abroad and was wealthy, he being the sole next of kin at the time of his decease. Very soon after the execution of his will he had a serious misunderstanding with a person to whom he had sold land, which had gone into suit, and in attempting to settle the same by negotiation he seemed to completely break down, and finally refused to acknowledge the additional conveyance, which had been agreed upon, and which he had already signed. After this he conceived the idea that his degree of LL.B., conferred by Harvard College, in conformity with its established rules, had not been worthily bestowed upon him. He accord- ingly visited the Law School, while a lecture was in progress, and after the pro- fessor closed his address, made one himself, explaining the reasons why he felt bound in conscience to surrender his diploma for cancellation, and accordingly laid it upon the professor's table and departed. He was soon after seen kneeling in the streets and praying for forgiveness both of his Maker and his fellow- mortals. In short, his breaking up seemed to continue in rapid progression until the night he burned his papers. That night he was known, by the inmates of the house, to be up most of the night, in a restless and agitated condition. The experts, as well as the attending physician, testified to his entire mental capacity to transact business when his depressed periods were not upon him, for some days after the execution of his will. They all agreed that at the time of destroying his will he was unquestionably so far under the influence of his delu- sions that he did not correctly apprehend the nature and effect of the act. But one of them thought, that even after that, he might have been so far diverted from his depression as to be capable of doing business understandingly. And his ex- pressions of regret in the morning, after having destroyed his will, seemed to favor the opinion. PROOF OP LOST WILL. 217 The court held the case under advisement, and gave an elaborate opinion, sustaining the will and granting probate of the same. But as the opinions of that court are not reported, we venture a few suggestions of our own upon the questions arising in |the case. This case involves more than one question of marked difficulty in regard to the law of wills. There is, first, the uncertainty produced by the destruction of the will, and the presumption therefrom arising, that it was done animo revo- candi. The proof in the present case is clear that the testator was desirous of not dying intestate. This he seems to have repeatedly and almost constantly expressed, from the moment that his health began to fail, and especially when he became aware that some disorder of mind was coming over him. This same feeling is clearly and anxiously expressed on the very morning after the destruc- tion of the paper containing his will. And the most marked source of anxiety then seemed to be, lest he should not have sufficient qmet of mind to execute another. This seems evidently a momentary flash of sane consciousness, as it corresponded so exactly with all his former apparently rational declarations upon the subject. His saying, too, when asked why he did it, that "the devil must have put it into his mind," seems to indicate very clearly that he then regarded it as either an unconscious or else an insane act. There would seem little doubt that, if he made the will in a sane or conscious and sound state of mind, he must have lost that when he destroyed it. There seems to be no fair ground of question upon this point, as there is not the slightest evidence of any change of purpose, or any ground for it. For although he seems to have had a short interval of returning reason after he destroyed the paper, there seems to be no sufficient ground for accounting for the act of destroying it, except that he must have been laboring under some delusion, or else that he did it in a state of forgetiulness, in which he was unconscious of what he was doing, and in either case the act would not amount to a revocation of the instrument. It would be a destruction of the paper without aflfecting the validity of the instrument, but only rendering the proof more difficult and uncertain. In the next place, this case involves the difficult and sometimes perplexing question of proving a lost wjU. For this purpose it is not enough to prove that the testator made his will, and afterwards destroyed it, or that in some way it has become impossible to produce it. Nor will it suffice to prove the general tenor and substance of the will, or to prove some of the bequests which it con- tained. The proof must restore the entire will, — not, perhaps, every letter and word, but all that is important ; so that in granting probate the court will feel assured it is the probate of the same will which the testator executed. And here, fortunately, there is no ground of doubt or uncertainty. The solicitor, who was a gentleman of high standing and character in the profession, of accurate knowledge and recollection, is able to state the very words in which the final will was engrossed and executed, so that there is really no more question of the very words of the will than if we had the original before us. There then arises the further question, whether the testator was of sound and disposing mind and memory at the time he executed the will. Although the testator had before manifested some symptoms of mental excitement and infirmity, there was not the slightest appearance of any such thing during all the time he was giving instructions and examining the different drafts of his will, extending 218 TESTAMENTARY CAPACITY. over a large portion of the week preceding its execution. There is not only this negative evidence of the testator's freedom from mental infirmity, but the testimony in regard to the first instructions and the subsequent repeated modifi- cations of the successive drafts affords the clearest assurance of a discerning and discriminating mind ; thus furnishing the most satisfactory evidence that the testa- tor possessed and exercised the most careful consideration and judgment in the matter. And no question can be fairly made that he was either insane or act- ing in a reverie when he destroyed it. There seems really to be no fair ground of question upon any of these points ; and still, upon any ground of a priori reasoning, it seems almost miraculous that the testator, in a chronic case of mental unsoundness, should have executed and destroyed his will, all in the space of one week, and at the same time be clearly shown entirely competent to execute it when made, and incompetent to revoke it six days after. We have presented to us in this case a striking illustration of the progressive character of mental disease in persons in middle life. At first the intervals of mental de- pression are of short duration, as compared with the periods of entire lucidity, and not of frequent recurrence, — and then only upon the presence of some exciting cause. And the depressed periods of the mind, even while prevailing, are not at first of such intensity as entirely to cloud and obscure the appearance of natural mental action, but only operate upon some one or more of the mental powers. But as they progress, the general powers of the mind become more and more involved ; the dark periods are longer and longer, and the bright inter- vals shorter and shorter, until the whole rational action of the mind is finally obscured and goes out in total eclipse and darkness. The period during which this change took place in this case was comparatively short,' but the features of the I)rogressive obscuration were more than ordinarily distinct and marked. These facts will be our justification for reporting them so much in detail. There are few, if any, cases reported in the books which bring testamentary capacity and inca- pacity into such near proximity, and where, at the same time, the mental infirmity was of a progressive and chronic character, and subject, almost to the last, to intermittent intervals of shorter and shorter duration, in which the testa- tor seemed, for the time, entirely rational. VI. Partial Insanity, or Monomania. 1. Boyd V. Ehy, 8 Watts's Pennsylvania Reports, 66, 70. 1839. The testamentary capacity implies enough sound understanding to comprehend the transaction in its ordinary relations. Lucid intervals require such restoration of the sound mind as to enable the tes- tator " soundly to judge of the act." Opinion of the court by — Sergeant, J. The rule of law in regard to wills is, that the memory which the law holds to be a sound memory, is when the PARTIAL INSANITY — MONOKANIA. 219 testator hath understanding to dispose of his estate with judgment and discretion, which is to be collected from his words and actions and behavior at the time. Ponb. Eq. 71 ; 6 Co. 23 ; Dy. 72 ; 1 Ch. Rep. 13 ; Moore, 760. If general lunacy be established, it must be shown that tliere was not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficient to enable the party soundly to judge of the act. 1 Ves. 611. Incompetency, then, by reason of insanity, is to be sought for in the words, actions, and behavior, at and about the time of the act in question. We have no other source to reason from. The internal structure and operation of the mind are inscrutable, and even a physical derangement of the brain (which is usually sup- posed to be its seat) is incapable of being ascertained. The factum itself is to be considered, whether such as a judicious rational mind would perform ; and also, when a general derangement has once existed, it is incumbent on him who alleges restoration of mind to show that it took place so far as to enable the party to judge soundly of the act he is doing. What conclusion, then, are we to come to in a case where a person, in the full possession of his faculties, has made a will, unexceptionable in its structure and dispositions, bequeathing various pecuniary legacies, and then dis- posing of the residue of his estate to his nearest relations ; and where that person, within the space of two or three months, becomes lunatic, and in the paroxysms of his insanity, and in coimection with them, imbibes the most violent antipathies against one of those relations, for whom, formerly, he entertained a high regard and affection ; which antipathies are proved to be utterly without just cause or foundation, and built upon imaginary grievances ; and where this person, becoming afterwards relieved from the symptoms of his derangement, yet continues to cherish, on all occasions, these antipathies and perverted impressions, and while under their influence, within nine months after the derangement, adds a codicil to his will, in which he revokes the residuary be- quest and gives it all over to persons, — strangers to him in blood, though otherwise having some claim upon his bounty ? It appears to me that the only question in such a case is, whether the person was of sound memory and discretion, considering the act done in all its bearings, and judging of the soundness of mind of the sup- posed testator by his conduct and declarations at the time, and as 220 TESTAMENTARY CAPACITY. connected with his previous insanity and the degree of restoration of mind in the interval ; and that if the erroneous and groundless impressions received during the time of his delirium shall retain their hold (whether by some physical derangement of the brain, or by some indelible stamp upon the thinking faculties), that per- son must be considered still under a delusion, — the effect con- tinues, and it is only by effects we can judge of the existence of the exciting cause, — and if he is under a delusion, though there be but a partial insanity, yet if it be in relation to the act in question, it is well settled it will invalidate contracts generally, and will defeat a will which is the direct offspring of that partial insanity, both in the courts of common law and in the ecclesiastical courts, although the testator, in making it, was sane in other respects on ordinary subjects. This question is one which has been discussed on several occa- sions in the English courts, and occasioned some diversity of sen- timent ; but it seems to be now settled in accordance with the principles I have stated. The first case was that of Mr. Greenwood, which is found to have excited much attention from the peculiarity of its circumstances, and is stated by Lord JSldon, in White v. Wilson, 13 Ves. 89. He was bred to the bar, and acted as chair- man to the quarter sessions, but becoming diseased, and receiving, in a fever, a draught from the hands of his brother, the delirium taking its ground then, connected itself with that idea, and he considered his brother as having given him a potion with a view to destroy him. He recovered, in all respects, but that morbid image never departed, and that idea appeared connected with the will by which he disinherited his brother ; nevertheless, it was considered so necessary to have some precise rule, that though a verdict was obtained in the Common Pleas against the will, the judge strongly advised the jury, in a second trial, to find the other way, and they did accordingly find in favor of the will. Further proceedings took- place afterwards, and' concluded in a compromise. See 1 Pow. Devises by Jarman, 130, note (Law Lib. 75), and Shelford on Lunatics, 296 (Law Lib. 188). Another case soon after oc- curred, in which a similar question arose, that of Dew v. Clark, 1 Haggard Ecc. Rep. 811, 3 Add. 79-209 ; Shelf. Lunat. 297 (Law Lib. 189). In this case there was evidence to show that the deceased, in the ordinary transactions of life, conducted himself and his affairs rationally ; was a sensible, clever man ; amassed a PARTIAL INSANITY — MONOMANIA. 221 considerable fortune by his profession ; took great care of his property ; and that several of his friends and acquaintances, some of them medical persons, never considered, or even suspected, that he was deranged in his mind ; yet it was shown that he labored under certain delusions respecting his daughter and himself: so that, although she was proved to have always been amiable in dis- position, of superior natural talents, engaging in her manners, diligent, industrious, submissive, and obedient, patient under afflic- tion, dutiful and affectionate, modest and virtuous, moral and religious ; yet in the deluded mind of the deceased she was the most extraordinary instance of depravity, vileuess, vice, crime, profligacy, hypocrisy, artifice, disobedience, revolt, and rebellion, and quite irreclaimable ; while in regard to himself, he was a pat- tern of fatherly tenderness and affection, though tying his daughter to a bed-post and flogging her with the most unmerciful severity, and aggravating her sufferings by other acts of cruelty, and com- pelling her to perform the most menial drudgery, and of the severest sort, to which even a servant would not submit. All these were represented by himself as proofs of his great tenderness and re- gard ; these impressions accompanied him tlirough life, and were recorded in his will. To remove these delusions, no reasoning, no argument, no interposition of friends, no pastoral autliority, was of any avail ; even the sanction of religion could not convince him that his ideas were erroneous, nor induce him to alter his conduct. Sir John Nicholl, after saying what might be the condition of the deceased as applied to other transactions, civil or criminal, it was not his duty to consider, but he decided that he was not a person of sound mind when he made the will ; or, in Lord Coke's lan- guage, was non compos mentis. He therefore pronounced against the validity of the will. This was confirmed by the delegates ; and the Lord Chancellor, on a petition for a commission of review, gave judgment that, under the circumstances of the case, he did not think fit to recommend it. In another case, that of PuUeck v. Allinson, 3 Hagg. Ecc. Rep. 527, it has been held that to set aside a paper on this ground of monomania, or partial insanity, it must be shown clearly and de- cisively that the belief which occasioned the act was founded upon a delusion ; tliat is, it must appear beyond doubt that there was no ground for suspecting the facts to be as the testator thought them. 222 TESTAMENTARY CAPACITY. The question, then, will be. Was the party of sound memory and discretion when he made this codicil, taking into view his previous state of mind and feelings towards these relations when of sound imderstanding, his former will and disposition in their favor, which must stand until legally revoked, the general insanity and prostration of understanding which ensued, the delusive belief or opinions in regard to Colonel Boyd, originating in his mind during that insanity, his degree of recovery, the continuance of the delu- sion afterwards, as manifested by the retention of these erroneous impressions and groundless antipathies, their operation in the making of the codicil, and especially whether the causes of those impressions were true, or even if not, yet were of such a character as to warrant the impressions, or on the other hand were utterly groundless, and such as no man in his senses could entertain, and occasioned merely by insanity ? If the latter were the case, then I think that, according to the principles of the law, he was not com- petent to make a codicil which altered his will in the manner he has done. It seems to me that the court below fell into an error in drawing a distinction between the insane delusion itself, and the impressions or prejudices occasioned by such delusion ; and in supposing that the former might cease and the latter continue. They are to my mind the same thing, or rather the presence of absurd prejudices, of groundless antipathies, of silly and chimeri- cal hatreds, originating in acknowledged insanity, is the only evi- dence we can have of the existence of the delusion. The term delusion refers to the state of mind : impression, to the results of that state of mind ; but when the results are gone, we can well assert that the delusion is gone. In a legal point of view, how- ever, the subtle inquiries are useless ; the great, broad, and intelli- gible question is, whether the mind was restored so as to be sound, whole, compos ; or whether a portion of its thinking and judging power, as connected with the subject of the will, remained mangled and perverted at the time of making the codicil, so as to leave it incapable of interfering with his former disposition of his estate with judgment and discretion. STATEMENT OP THE CASE. 223 Seamen's Friend Society \. Hopper:, 33 New York Reports, 619, 620-637. 1865. What amourds to mental unsoundness. It must be something more than "per- verse opinions " or " unreasonable prejudices." The opinion of unprofes- sional witnesses, with only a short or slight acquaintance with the party, is of little value "upon questions of insanity." If the witnesses, though not pro- fessional, " have had a long and intimate acquaintance with the person . . . and are persons of intelligence, and detail the facts upon which their opinions are founded, the testimony is often extremely useful." If one believes in the existence of facts which have no real existence, and refuses to disbeUeve them, upon the clearest proof of their being false, and per- sistently conducts upon the assumption of their truth, he is, to that extent, " under morbid delusion," and " delusion in that sense is insanity." And a will which is the result of such delusion, or is, or may be, affected by it, cannot be supported. The facts are fully stated in the opinion by — Denio, C. J. Charles Hopper, the validity of whose alleged will is the subject of controversy on this appeal, died at his resi- dence in Mott Street, in the city of New York, on the 1st day of November, 1861, at the age of about sixty-seven years. He had no descendants living, but he left suryiving him his widow, Hes- ter, and a sister, Elizabeth Wiley, a widow, and six nephews and a niece, the children of a deceased brother, Thomas Hopper. Besides these, he left other relatives, not entitled to succeed to his estate upon intestacy ; namely, three sons and a daughter of his sister Elizabeth Wiley, and a grandnephew, a grandson of his said sister. The widow of the deceased brother was also living. These relatives, for the most part, resided in the city of New York or in Brooklyn, though three of the nephews and the grandnephew lived in. other States of the Union. He left an estate, the greater part of which was in buildings and lots in the cities of New York and Brooklyn, valued at between eighty and one hundred thousand dollars. By his will, executed when he was very ill, four days before his death, he appointed Chauncey Shafifer, a counsellor-at- law, and Abraham M. Fanning, a real-estate agent, his executors ; and he constituted them trustees of all his estate not specifically devised. He gave to his wife (in addition to her dower), besides his beds, bedding, and household furniture and her clothing, a house and lot in Brooklyn, on condition that she should release 224 TESTAMENTARY CAPACITY. lier dower in another house and lot in New York, which, in the subsequent part of his will, he devised to his nephew John R. Hopper and Mary Hopper his wife ; but if she shoilld elect to receive the rents of the house in Brooklyn and an annuity of 11,400 per annum, both for life, in lieu of dower in all his estate, he gave her the option to do so. He gave to Mrs. Colton, a mar- ried niece, the daughter of his sister, Mrs. Wiley, and her children, one dollar each ; to the grandnephew, Charles Wiley, living at Janesville, Wisconsin, |300 per annum, until he should come of age, for his support and education. He devised to his said nephew John R. Hopper and Mary his wife a house and lot situated on the Tenth Avenue in New York, in fee, and to each of their children who should be living at his death, flOO each ; " to each and every of the children of my brother and sisters living at the time of my decease, and who are not hereinbefore provided for, the sum of one dollar each, whether the parents of said children be living or dead at the time of my decease ; " to Mary Russell, his nurse, the sum of two hundred dollars. All the residue of his property, real and personal, he bequeathed and devised to his executors, or to the one who should qualify, in trust as to the personal, to convert it into money with all reasonable despatch, and as to the real, to sell it within a reasonable time after the expiration of the existing leases upon it, and to divide the proceeds equally between the two charitable societies above mentioned as appellants ; in the case of the Seamen's Society, to be applied to the benefit of shipwrecked and other destitute seamen, and in the other case, to the comfort- able residence, support, employment, medical, and other necessary cares of aged and infirm females. Charles Hopper was either a native of the city of New York, or came there at an early age, and commenced life as a butcher in the Franklin Market, whicli business he pursued for many years, and until he had accumulated a considerable estate ; but he retired from business several years before his death, and thereafter had no employment except the management of his property. He had but little education, and he was quite illiterate, as is apparent from all the testimony and some specimens of his writing which were given in evidence. In early life he married the wife who survived him, with whom he lived on ordinarily amicable terms down to about five or six years before his death. Tliey had one child, a daughter, who lived to be married, but who died without leaving issue before COMMENTS ON THE TESTIMONY. 225 his troubles with his wife and relations appear to have commenced. As to his character, disposition, and habits prior to the change in them which'it is alleged occurred, the evidence shows that he was an active and energetic man of business, fond of gain, and laboring hard to acquire property, and investing it with reasonable judg- ment and discretion. He was brusque in his address, positive, wilful, and headstrong in his purposes and opinions, and impatient of contradiction. He was coarse and profane in his conversation, and much addicted to the use of ardent spirits, though he was not often, until the latter part of his life, so far intoxicated as to affect his capacity for business. If his declarations may be trusted, he was a disbeliever in revealed religion ; and he had taken up a very strong prejudice against ministers and clergymen of all religious denominations, believing, or pretending to believe, that they em- braced the profession for selfish purposes, and employed it for base ends, especially in regard to the female members of their congre- gations. I do not mean to say that all these disagreeable traits in his character wera proved by any one witness, or are shown to have been manifested at all times ; but tliey are the fair result of all the voluminous testimony in the case. Prior to the year 1855 or 1856, there is no pretence tliat he was not fully competent to make a testamentary disposition of his property. Even after that period, and down to the time of his death, whenever his state of health enabled him to be abroad, he continued to attend to the making of small purchases for the family use ; and it was not usually apparent to those who dealt with him in such matters that his mind was otherwise than entirely sane. During this period, the business of collecting his rents and investing his moneys was committed to persons employed as agents by him, and under his directions. It appears tliat, about the year 1856, or somewhat earlier, he commenced to have apprehensions of his wife and his relatives, and suspected them of a design to break up his family ; exhibiting on those subjects a good deal of excitement, and talking about tliem constantly. According to the testimony of Mr. Van Antwerp, a lawyer, who was a good deal employed by him in his legal business, and was, with his partner, for several years his only counsel, this disposition of mind continued to increase, getting, as he expressed it, worse and worse, and more excited, all the time ; and he was constantly making new allegations against several per- sons of a conspiracy to cause his death. In the summer of 1839, 15 226 TESTAMENTARY CAPACITY. he was arrested by policemen, by order of the mayor, charged with threatening to assault his wife ; and he gave bail to keep the peace for six months, Mr. Van Antwerp being his surety. About this time his wife left his house, alleging that he had committed vio- lence upon her person ; and she soon afterwards commenced an action for a separation, on the allegation of threats of cruel treat- ment, whicli made it, as she alleged, unsafe for her to live witli him. They lived separate ever afterwards. She appears to have had no kindred of her own blood, and no family connections, except the relations of her husband. Two of his nephews, Jolm E. Hopper and Captain William L. Wiley, took part with her, and gave her some assistance in the legal proceedings ; and the sym- pathy of all the others seems to have been in the same direction. Tliis caused a high state of indignation on his part ; and from this time until his death he believed, or affected to believe, that they were conspiring together, and with other persons, to destroy his domestic happiness, and in some secret manner to take his life. The question which arises upon the evidence is this, whether his conduct and declarations from the commencement of the suit for a separation, embracing, perhaps, a year or two prior to that period, down to his decease, were simply the manifestations of an excitable, coarse, ill-regulated, and suspicious mind, made more intense by his habits of intemperance, or were the consequences, on the other hand, of an insane delusion which led him to regard as certain truths, and actually to believe in the existence, on the part of his wife and his relatives, of conduct and intentions sub- stantially such as he imputed to them. I am perfectly satisfied that there was no foundation in fact for the gross imputations upon his wife, or the charge against his relatives, all or any of them, of a design upon his life, or an intention to do him any bodily injury ; and that the idea of a conspiracy to injure him otherwise than by promoting the suit which his wife was prosecut- ing, was either feigned or purely imaginary. If feigned, it is not enough to defeat the will. If he did not really believe what he alleged to be their criminal conduct and intentions ; if he uttered the injurious imputations by way of personal abuse in order to gratify a depraved and malicious disposition, or for the purpose of defaming or otherwise injuring them in the estimation of their acquaintances and the community, — any or all of these dispositions and motives, though most unworthy and reprehensible, would fall DEFINITION OP INSANE DELUSION, 227 short of that degree of mental perversion which would enable the courts to pronounce him non compos mentis and incapable of dis- posing of liis property by will. On questions of testamentary ca- pacity, courts should be careful not to confound perverse opinions and unreasonable prejudices with mental alienation. These qual- ities, of mind may exist, even in a high degree, and yet, so far as regards the view which the law takes of the case, the subject may be sane and competent to perform a legal act, and be held respon- sible for crime. Setting aside cases of dementia, or loss of mind and intellect, the true test of insanity is mental delusion. If a person persistently believes supposed facts, which have no real existence except in his perverted imagination, and against all evi- dence and probability, and conducts himself, however logically, upon the assumption of their existence, he is, so far as they are concerned, under a morbid delusion, and delusion in that sense is insanity. Such a person is essentially mad or insane on those subjects, though on other subjects he may reason, act, and speak like a sensible man. Dew v. Clark, 3 Add. Ecc. R. 79. If the deceased in the present case was unconsciously laboring under a delusion, as thus defined, in respect to his wife and his family con- nections, who would naturally have been the objects of his testa- mentary bounty when he executed liis will or when he dictated it (if he did dictate it), and the court can see that its dispository provisions were or might have been caused or affected by the delu- sion, the instrument is not his will, and cannot be supported as such in a court of justice. The conduct and designs which he im- puted to his wife and relations were such as, upon the assumption of their existence, should have justly excluded them from all share in the succession to his estate. I have examined with great attention the mass of evidence in this case, not with a view of determining whether the imputations were true, for of that, as I have said, there is no evidence or prob- ability, but for the purpose of satisfying myself whether the deceased really believed them, or threw them out for purposes of abuse, and to gratify revengeful feelings arising out of the pros- ecution of the suit for a separation or otherwise ; and I will pre- mise that I have not, upon this branch of the case, relied upon any part of the testimony in respect to which the evidence is contradic- tory, or upon the uncorroborated deposition of any witness against whom there seems any just ground of imputing partiality or in- terested motives. 228 TESTAMENTARY CAPACITT. Mr. Van Antwerp, before referred to, is wholly unconnected with the parties to the controversy. He had been the attorney and legal adviser of the deceased from the year 1846 down to April, 1860, about a year and a half before he died. He appears to be a gentleman of observation and good sense ; and his profes- sion would lead him to speak with more precision and intelligence tlian several, of the witnesses who were examined. According to his testimony, the excitement of the deceased respecting his do- mestic affairs appears to have commenced about the beginning of 1856, and during the ensuing three years and a half the witness thinks he conversed with him on these subjects as many as a hundred and fifty times, he continually making new allegations of circumstances and of the acts of parties, confirmatory, in his opinion, of his suspicions. At first it seems that the allegations were that the suspected parties were interfering with his domestic affairs, and attempting to break up his family. In the year 1868 he began to entertain the idea that persons were attempting or conspiring to take his life. On one occasion he confidentially informed the witness that the suspected parties had chartered a steamboat on the pretence of going on a fishing expedition, and had induced him to accompany them, and that after he got on board he discovered that their design was to make way with him for the purpose of getting his property. On another occasion, about the same time, he sought a private interview with^the wit- ness in the back room of his office, and informed him that there were parties who had procured a carriage and some men, and had driven into the neighborhood of his house with a design to seize and take him to the lunatic asylum. He said he had got the infor- mation from an individual whom he refused to name, because, as he said, he feared that if he did they would kill him. He declared that he would not venture to go home that afternoon, but would go over to Hoboken and return in the night. There is no evidence or reason to believe that any such design was entertained by any person. On the occasion of his being brought before the mayor on a complaint of his wife he was very anxious that Mr. Van Antwerp should cause the proceedings to be published in the newspapers, for the reason, as he stated, that the suspected parties would get frightened, and he would thus " get rid of the whole tribe." After he had been sued by his wife for a separation, he insisted that a suit should be commenced by him against her on the ground of COMMENTS ON THE TESTIMONY. 229 adultery on her part. On being required to name the other party to the criminal intercourse, he mentioned the names of several prominent clergymen of the Reformed Dutch Church, she being an attendant of one of these churches, and said they were around his house all the time. On the witness declining to commence a suit, he proposed to him to procure his wife to confess her guilt, and agreed to pay him for that service whatever he had a mind to ask, and said he would give his wife as 'much money as she wanted, to enable her to live like a lady all the remainder of her life. Mr. James, the partner of the last-mentioned witness, and who seems well qualified to give trustworthy evidence, deposed to sev- eral conversations between the deceased and himself, indepen- dently of those mentioned by Mr. Van Antwerp. He says the deceased would often come to his office and mention having met individuals in the street who stopped him and spoke to him, and he said he knew they had a design in doing it, whicli was to entrap him in regard to his wife's suit. This witness says that the de- ceased was impressed with a notion, which he never got over, that there was a conspiracy on the part of his wife and several clergy- men of the city of New York to break up his marital connection with her, and that these clergymen were in the constant habit of illicit intercourse with her, and that she had been diseased by one or more of them, and had communicated the disorder to him. Tiie witness endeavored to convince liim of tlie absurdity of liis accusa- tion, by stating that the clergymen named were men advanced in years and of iiigh character, and that his wife was also old. Bnt his efforts were witliout success. The deceased appears to have taken up the idea, pending the suit for a separation, that there was an apartment in Broadway, distinguished by a sign on which a human eye was painted, which was visited by liis wife for tlie purpose of illicit intercourse with the persons whom he had men- tioned. Wlien the examination of witnesses in the suit for a sepa- ration took place, he insisted that a Miss Warner, who had lived in tlie family, and who iiad been examined on belialf of his wife, should be cross-examined about that place which he said he had seen her enter. It does not appear whether the cross-examination embraced that topic, but it was foreign to the issue, and probably was not pursued. He constantly expressed to this witness his idea that there was a conspiracy among liis friends and family relatives to kill him or get him into prison. 230 TESTAMENTARY CAPACITY. It would be tedioua to refer particularly even to the principal [witnesses who testify to his declarations respecting the alleged infidelity of his wife, and tlie supposed conspiracy to assassinate liim. They are quite numerous, and their testimony shows tliat [lis mind was constantly occupied with those apprehensions to the exclusion of almost every other subject. But I ought not to omit bhe testimony of Dr. Downs, on account of his profession and the superior opportunities which he possessed for observing the de- jeased, and his connection with the execution of the will, to which he was one of the attesting witnesses. Dr. Downs is a .physician, practising in the city of New York, and had been the medical attendant of the deceased for the last year of his life. The deceased had been much ill during that time, the doctor having visited him professionally, as he states, about eighty times previously to the injury which occurred about a week before his death. I limit my notice of his deposition to the two topics : the infidelity of his wife, and the alleged conspiracy to take his life. The deceased stated to the doctor, at about the commencement of his attendance, that he had pains in his bones, limbs, and head, and ulcers and sores upon him ; that these were produced through his wife, and were the result of disease arising from her intercourse with other men. He mentioned the names of three well known and respected min- isters of the Dutch Church, as parties with whom the intercourse had taken place, and stated that one of them had been detected in going over a fence to get away from his house. He affirmed that he liad proof that she weut to houses of assignation, and that the woman who lived with him, and was the person who had been examined in the suit for a separation, had knowledge of her infi- delity, and that he had offered her money to tell all she knew. The doctor swore that the deceased appeared to believe these im- putations respecting his wife. On the subject of the conspiracy, the deceased, according to the testimony of this witness, alleged that all his relatives were set against him, and were endeavoring to kill him by the administer- ing of chloroform, or some other means, in order to get his money, which he said amounted to about #100,000. He included in these charges all of his family relatives, and was particularly, suspicious of two of his nephews, John R. Hopper and Captain Wiley. He pre- tended to have been under the influence of chloroform through their procurement several times, and to have been once knocked MONOMANIACAL DELUSION. 231 down ill the street by some one of the party ; and whenever any trifling accident happened to him, such as falling, he would attrib- ute it to the influence of chloroform administered by the agency of some of them. These declarations he says were repeated con- stantly, and, though he would sometimes apparently convince him of their absurdity, he would renew them until the doctor desisted from all conversation with him on the subject. The doctor de- clared on his oath that he considered him a monomaniac in respect to his family and relatives. It is doubtless some detraction from the value of the doctor's testimony tiiat he countenanced the exe- cution of the will by becoming an attesting witness, though he declares that he informed persons beforehand that he did not sup- pose the instrument could be sustained. But, considering the apparent candor of his answers, and the amount of corrobora- tion, I am induced to believe in the substantial accuracy of his statements. A great number of witnesses, in addition to those already men- tioned, relate declarations and conversations of the deceased, on a great variety of occasions, to the same general effect as those stated. It appears to have been the principal topic of his conver- sation for a year or two before his death that he was habitually pursued by a combination of persons, embracing all his relatives, whose design was to effect his death by chloroform or by violence, and that liis wife was continually engaged in illicit amours at assignation houses and otlier places. He repeatedly made offers of money to persons totally unconnected with his family, but whom he suspected of some knowledge of tiie conspiracy, if they would come out and expose the conspirators. One of these witnesses, the nephew, John R. Hopper, gives testimony covering the whole ground ; but as he cannot be considered indifferent, from being a party to the litigation, and on account of difficulties with the de- ceased and with Mr. Sliaffer, who drew up and has propounded the will, I do not refer particularly to any part of his deposition, except that which relates to the pretended place of assignation frequented by his wife ; and I mention this only on account of a slight inci- dental corroboration existing in tiie handwriting of the deceased himself. Mr. Hopper swears that the deceased very often referred to the sign of a human eye in front of an oculist's office in Broad- way, between Bleecker and Houston Streets, as the place of assig- nation. The deposition proceeds as follows : " He stated that this 232 TESTAMENTARY CAPACITT. eye was used to direct liis wife as to what time it would be safe for her to come out of the liouse, — her and Mary Ann Warner, — and when she ought to stay in the house ; that sometimes the sign would be on the right side of the door, and sometimes on the left," &c. Several of the others speak of his statements respecting this sign, intimating that it designated a place where his wife was accustomed to meet persons with whom she had criminal inter- course. In a book containing entries in the handwriting of the deceased, in the form of a diary, but very illiterate and incoherent in its general terms, there is found this minute: 185T, Feb. — After the sign of the human eye was taken doivn and put on left side of the door, some days after remove all together, the day that Mrs. Shipman was at my house, and James Demarest and wife, and her sister and Mrs. Reid, called on Mrs. Williams of Bangor, for to tell about the sign.-" The entry apparently refers to the employment of the sign as a signal, and shows that his mind was early exercised upon it and its removal from one side of the door to the other, apparently as a signal for some persons. Standing alone, it would of course have little or no weight ; but connected with tlie other testimony, it has some tendency to show how strong the delusion was upon that particular subject. In referring to the evidence on the part of the contestants, I have omitted a great deal which is related by them showing the folly, fatuity, and incoher- ence manifested by the deceased upon various occasions and upon different subjects. They afford some ground for imputing to the deceased general insanity. But as he was an habitual drinker, and was frequently intoxicated, it is impossible to say whether what is deposed to was the result of temporary intoxication or of settled mania. I have, therefore, in coming to a conclusion, relied wholly upon the proof of delusion upon the two subjects intimately connected with the testamentary disposition of his property. The party propounding the will has examined a great number of witnesses, many of whom knew the deceased but slightly, and who speak of trifling transactions of business, such as purchases of provisions and articles of family marketing. This class of wit- nesses, when they found him able to transact such affairs, and saw nothing extravagant or peculiar in his manner, readily pronounce him of sane mind. In cases involving questions of mental capacity, I have generally found opinions of unprofessional witnesses, with only a short or slight acquaintance with the party, of little value. INSANE DELUSION. CHARACTER OP WILL. 233 If the witnesses, tlioujih not professional, have had a long and inti- mate acquaintance with the person of whom they are called upon to speak, and are, moreover, persons of intelligence, and detail tlie facts upon which their opinions are founded, the testimony is often extremely useful. Where the mental disorder is a delusion upon one or a few particular subjects, the testimony of persons with whom he has not had occasion to speak on those subjects is of no weight. The considerable number of shopkeepers, mechanics, and retail dealers who have been called upon to pronounce upon his capacity, have not appeared to me to overcome in any appreciable degree the testimony on the other sid« which I have adverted to. It is worthy of remark, however, that several of the persons who have been examined by the proponent, and who have given opin- ions favorable to his capacity, have, on cross-examination, remem- bered declarations of the deceased strongly confirmatory of the evidence of delusion produced by the contesting parties. The symptoms of delusion upon the two subjects so often ad- verted to, appear to have continued in their full force down to the time of the injury by being burned, which the deceased received on the 20th of October, about a fortnight before his death. This injury reduced his strength and diminished the violence of his language to some extent ; and it was during this period of debility that the will was executed ; but I am unable to find any evidence that tlie delusions under which he had been laboring were dis- pelled. Dr. Downs, who had the best opportunity of observing, states that he had held the same language in substance respecting his family, but that he was less violent and demonstrative in his expressions, owing, as the doctor supposes, to his debility. The will makes a certain provision for his wife, though much less than we siiould look for, considering the amount of his prop- erty and that he left no descendants, if he had not taken up the insane and absurd belief that in her old age she had been con- stantly violating her marriage vows. He also makes a certain provision for John E. Hopper, one of the nephews, and the one against whom he entertained the most violent animosity, and whom he sometimes charged with inflicting the injury which hastened his death, and his children ; but he gave nothing to his widowed sis- ter, and only the nominal sum of one dollar each to her children and to his other nephews and nieces ; and he bestows the bulk of his estate to two charitable societies, meritorious, no doubt, but 234 TESTAMENTARY CAPACITY. which, it is apparent from his general modes of tliinking,he would never have conceived the idea of endowing if he had not deter- mined to disinherit the natural objects of his bounty, from an insane belief that they had long been conspiring against his happi- ness and his life. I have omitted to speak of many subjects which were much liti- gated in the evidence and enlarged upon in the argument. They relate for the most part to immaterial issues, though they occupy a large space in the two volumes of testimony which have been laid before us. The effort to cliarge Jolm R. Hopper with the attempt to assassinate the deceased by laying him upon a hot stove, and thus causing an injury wiiich no doubt hastened his end, I dispose of by saying that it is without evidence and against all rational probability, and is disproved by the evidence of the con- testants. Besides, this same person is more favorably considered in the will tlian any other of his relatives ; and furthermore, the determination of the deceased to disinherit his relatives, according to the testimony on the part of the contestants, was formed long before the happening of the injury. The same remark may be made respecting the difficulty which is said to have occurred be- tween him and Captain Wiley. He was cut off, not so much on account of any personal objection to him individually, for he was placed in the same category with his brothers and sister, but as a part of the determination by which the family were deprived of the succession, on account of their conspiring against him. I regard the allegation of an insane delusion on the part of the deceased on the subjects so often referred to as satisfactorily established by the testimony ; and, if the determination of the case belonged solely to me, I should, without hesitation, pronounce against the will. I have thus far assumed the execution of the instrument to have been satisfactorily established. The deceased is shown to have assented to the provisions of the will as it was read over to him by Mr. Shaffer in the pi'esence of the two physicians who became attesting witnesses, and of Mr. Fanning, and to have assented to the publication of it as his will, and to have assented to the request to the witnesses to subscribe it ; and he took hold of the pen when Dr. Downs wrote his name at the end of the instrument. It is a little uncertain, however, from the evidence, whether his assent was by a nod or gesture, or by words ; but if by words, they were MENTAL COMPREHENSION REQUISITE. 235 limited to simple affirmative answers to questions put by Mr. Shaffer. I do not doubt but that a will may be legally executed in this manner. But the evidence ought to be satisfactory that the testator was capable of understanding what was proposed to him. Now, according to the testimony of Dr. Vanderpoel, the deceased was then in extremity. He was separated from every member of his family, and no attempt was made to put him in communication with any of them. He had none of tlie attention or any of the comforts which a man of large pecuniary means and with a numerous kindred could easily have commanded, if he had been properly dealt by. The nurse, if she could be so called, was a woman who was habitually intemperate and often drunk, and otherwise extremely vicious. Dr. Vanderpoel swears that he thought him the most God-forsaken man he ever saw, and the other evidence fully bears him out. Tlie evidence which relates to the precise time of execution is adverse to tire validity of the will. The two attesting witnesses, Doctors Downs and Vanderpoel, and Messrs. Panning and Shaffer, were present. Of these. Dr. Downs and Mr. Panning thought him incompetent to understand and execute such an instrument. Tlie former, it will be remembered, had been his attending physician for more than a year, and Mr. Panning had been his agent for col- lecting his rents for a longer period, and both had been in con- stant, and, for a considerable part of the time, in daily intercourse ■with him. Dr. Vanderpoel saw him for the first time when he came to witness the will, and, though he attended him, in consul- tation with Dr. Downs, from that time until his death, he had not at any time any conversation with him except to ask such ques- tions as professional duty required, and to receive answers in monosyllables. He frankly admits that sufficient did not occur in his presence to enable him to form an affirmative opinion as to his competency ; but he says that he neither saw nor heard any thing to enable him to give any other opinion than that he was sane. Mr. Shaffer is understood to affirm that he was competent ; and there is no doubt that his opportunities of observation were ample. The weight of evidence, if the case depended on that interview, would be against the testamentary capacity of the decedent. The will was drawn on the same day by Mr. Shaffer, and, if the testimony of Mr. Fanning is to be believed, and I am inclined to credit it, there were no intelligible instructions given. On the 236 TESTAMENTARY CAPACITY. morning of the day on which it was executed, there was an in- terview between the deceased and Mr. Shaffer and Mr. Panning around the sick-bed of the former. The final instructions, if there were any, were given on that occasion. Mr. Shaffer would ask the questions, and the deceased was understood generally to have assented to what was proposed, but in a manner, according to Mr. Fanning, not denoting any intelligent appreciation of what was going forward. For instance, the question was asked, what should be given to John Hopper. The deceased replied, give him all. The witness says : " Other names were asked, but Mr. Hop- per (deceased) could not and did not give a name." He says that Mary Russell, tlie nurse, who was present, gave a number of the names, — of his relatives, as I understand. After some other pro- positions, to which the deceased assented, it was asked what should be given to this Mary Russell, the nurse, and the reply of the deceased was, " Give it all to her ; she may as well have it as any- body." At the close of this conversation the parties separated, and the will was drawn at the office of Mr. Shaffer at a later period of the day, and executed in the evening, — Mr. Fanning being present when the principal provisions were settled upon. I am aware that Mr. Fanning is contradicted in a good deal he has sworn to by Mr. Shaffer, and it may not be an easy matter to determine whicii version to credit. Fanning, having refused the executorship, has no possible interest in tlie result. Mr. Shaffer, if the will is sustained, becomes the devisee in trust of this con- siderable estate, with no person to call him to account except the charitable institutions, which, under the circumstances, would not be likely to be very exacting beneficiaries. It would be apparent to them that they owed the gift to Shaffer's agency, and his wife was a manager of one of them. That he entertained the idea of profit from the position, is admitted by himself; and it is not diffi- cult to see that the management of such an estate by an attorney for a course of years would yield something of an income. He may be regarded, I think, as taking a substantial benefit under the will. Considering the condition of extreme debility of the deceased, I think some corroborative ev dence of instructions, beyond the deposition of Mr. Shaffer, ought to have been given. Reading a will to a testator in the presence of the witnesses is usu- ally enough, even where it has been drawn by a party who takes an interest under it ; but this supposes that the testator has capacity UNDUE INFLUENCE. 237 to understand it. I am not at all satisfied that the deceased was in such a condition. To say the least, it was a case of doubtful capacity. Seeing that, at an interview in which instructions were professed to be received on the same day the will was drawn, there was not one word said respecting the principal legatees, and that the deceased was in extremis wlien the formal execution took place, I am obliged to say that there should have been furtlier evidence of directions to prepare a will disinheriting the greater part of his relatives and giving the bulk of his estate to these cor- porate legatees. The deceased may have conversed with Mr. Shaffer about giving it in that manner, on former occasions, though Mr. Fanning supposes that, as to one of the societies, the gift was suggested by himself while the will was being drawn, and after the interview when the final instructions were given. Upon the whole, the evidence is not satisfactory to my mind that the deceased really dictated the substance of this will, even supposing that, with proper assistance, he was competent to make a will. I have alluded to the isolated and miserable condition in which he was found when the will was executed. This was no doubt owing, in a great measure, to his own perversity, and his unrea- sonable suspicions. But I am not satisfied that he was dealt by with perfect fairness by his confidential adviser. It seems to me that one who had won his confidence could and should, when he found him dying under such circumstances, have brought him in communication with tliose members of his family against whom he did not pretend to have any cause of offence beyond the morbid suspicion, wholly groundless, as must have been known to be, that they were concerned in some plot against his life. Yet I do not find that Mr. ShaflFer ever made any endeavor in that direction. On the contrary, he expressly testifiies that he never i-easoned or remonstrated with him upon the absurdity of his suspicions. But he went further than that. He encouraged his delusions by coun- tenancing the idea that there had been attempts to poison him, and a " plot " against his domestic peace in which members of his family were engaged. I think that, after it was seen that he was dying from an accidental injury, it was the duty of one standing in such a relation to him as Mr. Shaffer did, to endeavor, at least, to put him iu communication with those who had a natural right to protect him, and to see that any testamentary dispositions which he might be disposed to make were the voluntary dictates of his own will. 238 TESTAMENTARY CAPACITY. I am in favor of affirming the judgment of the Supreme Court, and of charging the costs of this appeal upon the proponent of the alleged testamentary paper. The foregoing opinion comes from one of the ablest and most experienced judges which our country has produced, and the commentary which it contains upon the subject of testamentary capacity, and he most effectual means of test- ing it in trials upon the validity of wills, will well repay the reader for the time required for a careful and thorough study of the questions there discussed with so much learning and ability. The mere dry statement of the most apj)roved rules of the law, as applicable to any subject, or any disquisition upon or analysis of its principles and philosophical elements, however learned or accu- rate, is of small value to the profession, as a guide to their just application to existing cases, in comparison with the example afforded by such an extended exposition of the actual application of those principles by so wise and expe- rienced a jurist. 3. JLucas V. Parsons, 27 Georgia Reports, 593, 615. 1859. An entire change in character and conduct is the best evidence of insanity. One under commission of lunacy is presumptively incompetent to execute a valid will. If restored to his reason he may do so, but the burden of showing it rests upon the proponents, and it requires the clearest proof of actual restoration to reason. There should also be the most satisfactory proof that the will, made while the testator was under commission of lunacy, was made freely and without any influence designed to induce the testato ■ to make an unjust, or improper will. If the testator, while in the care of those benefited by the will, and while in a state of great weakness of mind, make an entire c ange in his testamentary intentions and dispositions, " the law must have strong proof of both volition and capacity." The following opinion of Judge Lumpkin, in regard to the points stated above, is one characterized, as are all the opinions of that eminent judge, by great learning, wisdom, and good sense ; and tlie facts in the case, hearing upon those questions, are there fully stated. By the court — Lumpkin, J. The great question made by the record in this case, and the one chiefly argued by counsel on both sides, is, whether the court below erred in refusing to grant a new trial on the eighth ground, in the motion for a new trial, " because the verdict was con- COMMENTS ON THE TESTIMONY. 239 trary to the law and evidence, and decidedly and strongly against the weight of evidence." The evidence is voluminous, and the witnesses give different opinions, as to the capacity of the testator at and about the time of t\\& factum of the will, but the main current of facts in relation to the testator's " mind and habits and affections " seem to be very well agreed on by nearly all the principal witnesses on botli sides. The evidence makes us distinctly acquainted with the testator as far back as twenty years before the making of the paper here set up as his will, and there is some evidence going much furtlier back, but it is unnecessary to consider it. Prior to the winter of 1853 and 1854, the testator was a sane man ; after that time, it is con- ceded by the propounders that he became deranged, at least a lunatic. Tiie propounders insist, however, that he was restored to his reason, or at least had a lucid interval on the second day of April, 1855, and this is denied by the caveator, and this is the main issue. Before the loss of his reason. Dr. Hall says he was " a clear- headed, discriminating person in ordinary business matters, re- spectful and decent in his deportment." All the witnesses who speak on this point corroborate this statement. He was a practi- cal, thriving business man, careful with his property, very success- ful in farming, and in the use of money ; he was a drinking man, and sometimes drank too much, and when drinking, fond of jest- ing ; " but he was never irrational," " never indecent in his deport- ment," never substituted " imaginary tilings for facts," even when he had drunk too much. " He was just as hard to trade with under the influence of liquor as at any other time." He iiad great domestic troubles ; he and his wife did not live happily together ; her temper was unfortunately affected by a hys- terical disorder, but this kind of life was not uniform and con- tinuous ; tliere were times when her temper gave way, and then there was greater liarmouy in the household. At times, they did not speak to each other, nor did they room together. He often complained of his hardships in these respects, and declared his domestic troubles drove him to drinking: a poor but common refuge in such cases. Many other evidences of unhappiness are stated in the record, which 1 need not repeat. He had two daughters ; one married Elza Holsten, and the other married James M. Parsons ; neither married to suit him. The last, espe- 240 TESTAMENTARY CAPACITY. daily, married clandestinely, and very much against his will ; for some time after his marriage, the witnesses say, tlie testator " hated Parsons ; " afterwards he said he would make the best of it, and some of the witnesses say " he came to respect Dr. Parsons ; " Holsten, he declared, was not of much force any way. It is very clearly shown that, always before his insanity, Littleberry Lucas declared, neither of these men should ever have his property, " if he died in his right mind.'" The testator had one son, the caveator in this case ; in this son and his family this old man seems to have found all his happiness. Our brother Hill speaks of this son as the old man's " cloud by day, and pillar of fire by night," and even our brother Trippe, tlie coun- sel for the propounders, admits that Cincinnatus M. Lucas " was at once the old man's Reuben and Benjamin." With a force which a glad father's heart alone could express, the testator was in the habit of declaring that " Nat, his son, was all a father's heart could wish." After a careful examination of the evidence, we must admit that none of these eulogies can be called extravagant. As a natural result, this son had all his father's confidence. He kept his money and notes, attended to all his business, " helped him to make what he had," and it seemed to be the father's delight to do just as his son said. He bought a new secretary for the safe-keep- ing of his papers, and had carried it, not to his own, but to Nat's house. If a neighbor came to borrow money, he sent him " to Natty ; " if cotton was to be sold, or an overseer employed, or any thing else done, " Natty " must do it. The wisdom of this confi- dence is seen in the result, — the old man continued to grow rich. With this clear head, and these fixed affections, old Mr. Lucas, some time before 1845, called on his neighbor, Mr. Lester, to write his will. It was very carefully prepared. The testator and the scrivener, at the instance of the first, sought a retired place, and Mr. Lucas had his plan for disposing of his large estate all ar- ranged ; he gave his wife a competency ; he settled upon his daughters portions for life, remainder to their children ; he gave Cincinnatus's sons a special legacy *' to perpetuate his name," as he said ; he gave his faithful old negroes, " who had worked with him, and through the heat and burden of the day," to his son, for "Natty would take good care of them ; " he stated to Mr. Lester his reasons at the time for so making his will, and for giving his son's family the advantage, and they are in strict accordance with COMMENTS ON THE TESTIMONY. 241 the facts above stated ; " it was a rational act, and rationally done." Some time after this, he bought a plantation west of Flint River, and put certain negroes on it ; this he did for his son's " boy chil- dren ; " he bought it for them, and gave it to them, and often spoke of it, and gave his reasons for it. Many of the witnesses detail many facts showing the old man's fixed purpose in this regard. To fix this property on Nat's boys as a gift from their grandfather, in token of his affection for them, and their father and mother, " and to perpetuate his name ; " he destroyed the will drawn by Mr. Lester, and on the seventh day of July, 1845, made another ; this will was also made with great care ; it was drawn by liis con- fidential attorney, is elaborate, and well planned, and precisely as the one prescribed by Mr. Lester, with the exception of the change of legacies to the children of his son. At this time, Littleberry Lucas lived in Monroe County ; in 1847, he applied to the legisla- ture to change the county lines, so as to include him in the county of Crawford, stating in his sworn petition for this purpose that he had made his will ; that his son was appointed his executor ; that most of his lands and property lay in the county of Crawford, where also his son lived, and, for the convenience of his son in executing his will, he wished to be placed in the county of Crawford ; the legislature granted his petition ; afterwards, at the session of 1851- 52, an act was passed repealing generally the former acts chang- ing the county lines, and this placed Littleberry Lucas back in the county of Monroe ; to the very next session of 1853-54, he sent his petition to be placed back again into Crawford County ; he asked Colonel Hunter to assist Mr. Culverhouse and Ray in get- ting this bill passed, as he was thrown back into the county of Mon- roe against his wish, and wished to be placed again in Crawford, for the convenience of his executor; this bill was also passed, and ap- proved the thirteenth day of February, 1854 ; he also became dis- satisfied with some decisions of this court, because he had understood they conflicted with the settlement of his daughter's ; he brought his will to his lawyer, Colonel Hunter, in the fall of 1853, as Colonel H. recollects, for examination in this particular ; and when informed that his will did not conflict with the decisions of the Supreme Court, he expressed himself pleased, and again expressed his par- ticular satisfaction with these portions of his will, and repeated the same reasons for them which he had given so often before. Up to 16 242 TESTAMENTABY CAPACITY. this period, and to these points, the testimony is clear, strong, and unbroken. By the will of 1845, he gave his money and notes to his son Cincinnatus; some three of the witnesses think he ex- pressed a dissatisfaction with this portion of his will before his derangement ; Mr. Banks says he spoke to him to write a new will on this account, in May, 1853, but did not say how he would make it otherwise, and never appointed a time to attend to it. Mr. Wood- ward and Mr. Jackson also spoke of hearing similar remarks before his derangement, but they are not certain as to the time. Admis- sions and casual remarks, unless well remembered and distinctly repeated, furnish very weak evidence. We know the human memory is at fault in nothing more than dates, unless particularly charged to remember them. Most clearly, therefore, the will of 1845 contained and repre- sented the testamentary intentions of Littleberry Lucas, when sane, and admitted on all hands to have been sane. The time when Mr. Lucas became insane is not definitely fixed ; Dr. Hall, an expe- rienced physician, discovered some symptoms of it, he thinks, as far back as shortly after 1850 ; he was getting quite old, — near the period allotted for man to live ; his insanity was doubtless produced by a combination of causes ; the manifestations of the malady of madness were numerous, and unmistakable. We will mention some of the more prominent, for the purpose of tracing with more certainty the evidences of his condition on the second day of April, 1855. With a few immaterial exceptions of opinions to the contrary, it is conceded by all that this old man had not his reason in 1854 ; he lost all sense of decency in tlie presence of ladies ; he was un- truthful ; he offered a young lady |200, and when she refused to receive it, he was about to buru it in his pipe, and was only pre- vented by her consenting to take it ; he was travelling over the country declaring his wife was dead, and he wanted to marry again ; addressed several ladies ; offered to buy a wife, at prices varying from small sums, or a few negroesj up to $20,000 ; he declared he could buy a wife, and would do it (was this madness ? Query) ; when corrected in any of his wild notions, he would get very angry, and insist he was right ; he insulted his own sister-in-law at her own table ; was offering to sell his negroes at times for the wildest prices, and then for almost nothing ; all the family united in hav- ing him declared non compos, and in having a guardian appointed PROOF OP LUCID INTERVALS. 243 under our statute ; accordingly, a commission was sued out on tlie tliirtieth day of June, 1854 ; he was declared an insane lunatic from age and disease, and " incapable of managing his own affairs ; " his son was appointed his guardian ; his affections entirely changed ; he took up with Parsons and Holsten, and his hatred for his son was the most intense ; he would curse him as the d st rascal, and rogue, and fool, that ever lived ; charged him with stealing his will and his property, and' declared he intended to make a will, and cut him off with |5, as being all the law allowed him. All these manifestations of insanity are testified to by many witnesses ; pages could be filled with his sayings and doings, illustrating this sad condition. Was he restored, or, at least, did he have a lucid interval when he executed the paper propounded ? It is scarcely possible to be too strongly impressed with the great degree of caution necessary to be observed in the examination of the proof of a lucid interval. White V. Driver,- 1 Ecc. R. 46, 1 Phillim. 84. In cases of insanity proper, this proof is often matter of extreme difficulty, because the patient so affected is not unfrequently rational to all outward appearance, without any real abatement of his malady, so that in truth and substance he is just as insane in his apparently rational, as he is in his visible raving fits. Brogden v. Brown, 2 Ecc. R. 369, 2 Add. 336. These considerations render it necessary for the courts and juries to rely but little upon mere opinions, but to look at the grounds upon which opinions are formed, and to be guided in their own judgments by facts proved, and by acts done, rather than by the judgment of others. Kinleside v. Harrison, 1 Ecc. R. 296, 2 Phil- lim. 29 ; 1 Williams on Executors (2d Am. ed.), 18. When general lunacy, is once shown, it is not sufficient, in order to establish a lucid interval, to show merely a cessation of the vio- lent symptoms of the disorder, but a restoration of the faculties of the mind, sufficient to enable the party soundly to judge of the act. Hall V. Warren, 9 Ves. 611. Was Littleberry Lucas so far restored as to be able, to compre- hend the condition of his family and property, to remember his affections, obligations, and former testamentary intentions ? Was he relieved of his delusions in regard to his son, or did he act on these delusions ? After a careful examination of the facts proved, and acts done, we find every exhibition of insanity existing in 1854 continuing in 244 TESTAMENTARY CAPACITY. 1855, and many of tlie most palpable evidences of such insanity shown in this record occurred in 1855, many of them a short time before, and many a short time after the second day of April ; and on that very day, we find several strong " soundings to folly," de- clared by the authorities to be proof, in spite of apparent calmness, of the continuance of the malady. Let us state a few clearly proven instances, as samples of many in this heavy record. Dr. Hall says : "I had a meeting with him (L. Lucas), I think in March, 1855, a short time before the April term of tlie Court of Ordinary, for the purpose of bringing about a, reconciliation between him and his son ; 1 asked him in the street if he had been to see Nat ; he said no, that he had as soon go to hell as to go there ; that Nat was a damned rascal, and a damned rogue, and made use of the most violent and abusive terms." Dr. Hall attempted to reason with him, and correct his mistaken imaginations about Nat's conduct, when " he renewed his abuse of his son in such a violent and abusive manner, that he con- cluded he was still laboring under his derangement ; " " he was sober at the time, and the indications of insanity I allude to, I did not think the effects of drink operating at the time, or produced by liquor recently taken." George Rosseau, a brother-in-law to Lit- tleberry Lucas, says : " He also visited my house in 1855 ; while here he said a man that was not worth $70,000 ought to be kicked out of hell ; he also said he did not know whether there was any hell or not, and he be damned if he was going to trouble himself about it. There was a quilting at my house while he was here, and when the quilt was finished, he proposed to a lady of as much re- spectability as any in this, or any other country, that they would wrap up in the quilt and go to bed ; this was said in the presence and hearing of several persons, and I should not have allowed him to stay in the house, but from the fact that I regarded him as an insane man ; he did not drink any spirits while here the last time, nor did I consider him drunk wlien he came here." William H. Griffith says, that the " latter part of March, or early in April, 1855, he had a conversation with L. Lucas, in which he spoke of Nat as a rogue, a rascal, and the most hateful of men; said Nat pretended to have some court papers giving him his property ; that he knew all about such papers, said that Nat could tear them up if he would ; that he and Nat could agree, and put them out of the way, and he wanted Nat to do it, but he wouldn't, damn him ; COMMENTS ON THE TESTIMONY. 245 no such rascal shall ever have any thing I have got ; he shall come to the plough, damn him." Samuel P. Corbin says : " A man had died, and been put into a metallic coffin ; the coffin was brought to my house, and Littleberry Lucas took a complete view of it, felt it, and knocked it with his knife, — seemed amazed, and made many foolish remarks about it, illy becoming the occasion ; he then said, ' When I die, I want one of these things to be buried in ; the devil can never get a man when he is boxed up in one of these.' This was not said jestingly ; he said it with a countenance as solemn as he ever wore ; he seemed to speak it, as if he believed what he said. This was about the 1st of May, 1855, I saw him in March and April of tlie same year, and he was as crazy then as at any time before or after." On the very day of making the will, he requested J. M. Simmons, one of the witnesses to the will, to tell " his brother not to send his note to Nat Lucas, that he intended to have his business out of Nat's hands ; " and yet, when sane, and for years, no one else could be trusted with his business. Woodward, another witness to the will, says, that L. Lucas " said, after he made his will, that if Nat Lucas did not give him up his property, he would be damned if he did not cut him off with $5 ; said so before." John Anderson, a witness to the will, says, he saw Mr. Preston in Knoxville, on the day the paper propounded was written. Mr. Pres- ton's depositions were read, and he says he saw L. Lucas in Knox- ville about the last of March, or the first of April, 1855, and he further says, that deceased " called Nat many iigly names, and cursed him dreadfully ; he spoke of I'fat as the most hateful of men ; he found it difficult to find words of sufficient force to express his spite ; he was then insane ; " he said at Knoxville, in my hearing, that he did not mean to give Nat any thing, because he was the damnedest rascal he ever saw. On the night of the very day he made the present will, he told B. F. Pritchard " he intended to make a will, and do as he pleased with his property.!' Mr. Knott says : " In the spring of 1855, while L. Lucas was in Macon, he told me he had been offered fourteen cents for his cotton, whicli was about four cents over what any other cotton would liave brought that day ; and during the same day, speaking of tlie birth of children, said he recollected well when the granny came to his birth ; some one told him he must be mistaken ; he said, Oh no, he was not." 246 TESTAMENTARY CAPACITY. A. W. Wyche was present at the time spoken of by Mr. Knott, and was the man who asked deceased if he was not joking, Lucas said " No, and then reaffirmed it to show the strength of his mem- ory. He went on further to say, in the same earnest manner, that he remembered when the granny entered the room when he was born, and he described her, how she looked," &c. Both these wit- nesses examined closely to see if he was under the influence of liquor, but both became satisfied that he was not, and that he acted and talked as a crazy man, and not as a drinking man. Previously when sane, he had always gone to Macon with his son, and did just as he said. Now, at the time alluded to, Dr. Parsons accompanied him, and on the same day deceased said " he had more sense in his little finger than Nat had in his head, and he cursed him for a damned rascal, and a damned fool," &c. In May, 1855, he offered to give in his property to the receiver of tax returns in Taylor County. He had about sixty negroes there, but represented them as about forty-two ; insisting that small ones who did not work should not be given in. He had a good plantation of about one thousand acres, and this, with the forty-two negroes, he valued at about ($2,700) twenty-seven hun- dred dollars. The sensible tax receiver would not allow him to swear to it, because he thought him crazy. This is testified to by three witnesses, who say he was not drunk at the time, but crazy. If he had sworn to this valuation, would any jury on earth have found him guilty of false swearing ? His son returned the same property at near $40,000. " Facts proved, and acts done," showing this condition of mind, are multiplied by more than a score of witnesses, which need not be and cannot be repeated. They cover the whole of the year 1855. The danger of relying upon opinions in a case like this, as wisely remarked by Sir John Nicholl, as above quoted, is strongly illustrated in this case. For the witnesses who think he was rational give it as their opinion that he was sane, having no indi- cations of derangement the whole of the year 1855, the very period when the facts testified to occurred. Some of them say he was restored in the fall of 1855, and one or two intimate, as their opin- ion, that he never was deranged. Some people seem to think a man is not crazy unless he is frantic. That Mr. Lucas was often calm and quiet, and loaned money to Mr. Jackson on one occasion, and shaved a note for Dr. Simmons on another, and did so with EFFECT OP PARTIAL INSANITY. 247 apparent reason, we do not doubt. Many lunatics and deranged men have done many things requiring much more thought and judgment. Doubtless Mr. Huckaby honestly thought Mr. Lucas was as sound as any man, when he sent for him to mend the har- ness, &c. ; and that, too, notwithstanding Mr. Lucas concluded he would himself " tan the leather to mend the harness," and Mr. Huckaby himself thought the harness were not worth mending at all. Tlie circumstances, also, under which this paper was written, can- not help the propounders on the question of sanity. The deceased was mad, excited because his son had continued the application to revoke the letters of guardianship. The will was made in the court-room ; no deliberation, no plan arranged, no good feeling for that son who was once all a father's heart could wish a son to be ; in every respect so different from the circumstances under which he had written and prepared two wills before. To settle his daughter's portions to their separate use, and " extend his prop- erty over to his grandchildren," and make a special bequest to Nat's boys, " to perpetuate his name," were always the cherished intentions of this old man when sane. They were the great features of two former wills. To execute this testamentary intention, he applied to two sessions of the legislature to place his residence in Cz-awford County, where his son and executor lived. He became dissatisfied with a decision of this court, because he heard it inter- fered with one of these provisions in his will. He never did, so far as the proof goes, abandon either of these intentions ; he never, while sane, tolerated any other contrary intention. These were his great, his fixed, his life-long testamentary intentions. The record of his sane moments is unbroken, and full of them. All his family and neighbors knew them ; and yet, when he executed the paper now propounded, it does not appear that he even recollected either of these former purposes. Yet this paper defeats these cherished objects, and for only one recited reason of dissatisfaction with his former will : a dissatisfaction which could have been fully remedied by a codicil of five lines. There is yet another view of this case which materially weakens the cause of the propounders. Even if Mr. Lucas probably had testamentary capacity, it is clear he was of weak mind. " Unques- tionably," says Sir John Nicholl, in speaking of the will of one under commission of lunacy, " there must be a complete and abso- 248 TESTAMENTARY CAPACITY, lute proof that the party who had so formed it (the will), did it without any assistance." Cartwright v. Cartwright, 1 Ecc. R. 51, 1 Phillim. 90. We are not satisfied that the paper propounded is the free and voluntary testamentary act of Littleberry Lucas. With such a revolution of testamentary intention while in the care of those benefited by the change, and under such circumstances of suspicion and weakness of mind, the law must have strong proof of both volition and capacity.. Walker v. Hunter et al., 17 Ga. R. 364 ; Wynn v. Robinson, 4 Ecc. R. 82 ; Brydges v. King, id. 113, 1 Hagg. 256 ; Ingram v. Wyatt, id. 191, 204, 1 Hagg. 384. The evidence in this case presents some strong proof of fraudj and significant activity, to say the least of it. The deceased was helped in various ways. All the family wanted a " trustee " appointed for him. Dr. Par- sons was especially urgent, and thought Nat was the man who ought to be appointed. After Nat's appointment, the propounders became the best friends of the deceased and his special keepers. Dr. Parsons " treated Littleberry Lucas, while in Lucas' presence, kindly, and as a sane man, but away from said Lucas, he treated him as an " insane man." He bid off land for the deceased at Smith's sale. He and Holsten helped the deceased to sell his cot- ton over the head and wishes of his guardian. Dr. Parsons first applied to Colonel Trippe to bring the rule nisi, to revoke the com- mission of lunacy, and was the active man in getting up the wit- nesses. It does not appear that either of the propounders made any effort to disabuse the father's mind in regard to the conduct of his son. According to the old man's ravings they were active in embittering him against his son. Again, the old man is raving, — anxious, apparently, to get the commission of lunacy revoked ; but Parsons says to Colonel Hunter, " If C. M. Lucas will give up the old will no steps will be taken to revoke the letters." The old man is raving, because under the old will Nat is to get all his money and notes, and says he wants to alter it for that rea- son. But Parsons told C. M. Lucas at Smith's sale, in the presence of Woodward, " if he would give up the old will he might keep the money and notes." In no case would the granting of the proposi- tions of Parsons have accomplished the wishes of deceased, and yet he pretends to have acted for deceased. In February or March 1866, the old man seems determined to move to Monroe County LUCID INTERVAL. UNDUE INFLUENCE. 249 (while sane, he was very anxious to die in Crawford). It was a bad season of the year to get a place. The old man was very old, ■was bed-ridden, and unable to move without assistance; but Par- sons declared he would move him to Monroe, if he had to move him to a shelter. No other place being available, Holsten finally gives up the place he was living on in Monroe, and thitlier the old man is carried to die. After this removal to Monroe, Holsten said he thought the new will would stand. In the summer of 1856, another will was spoken of. Mrs. Peggy Lucas sent for Dr. Stephens, Dr. Searcy, and Dr. Simmons, to examine the old man, and see if he was then competent to make a will. Tliey met, and so pronounced him, and a time was appointed for the will to be executed by these physicians. This proceeding thus far was without the knowledge of Dr. Parsons ; but before the day arrived to execute the will, he found it out. He, Parsons, told Dr. Simmons not to come, because the woman had deceived him, that the old man already had a will. He then went to Forsyth, and told Dr. Stephens he need not come, as the old man was sinking, &c. He wrote to Dr. Searcy not to come, " because Dr. Stephens would not be there." Mr. HoUis heard the discussion between Dr. Parsons and the women, on the subject of the will. Mrs. Lucas and Mrs. Parsons wanted a will settling the property on the daughters, but Dr. Parsons was afraid it would affect the revocation. Dr. Stephens, on reflection, did go down on the day appointed to write the new will, but no one was there but the old man and the women. The old man was sleepy, and the women " had concluded to be satisfied." We are not satis- fied, either that the paper propounded was executed during a lucid interval, or that in the weak condition of the mind of the deceased the will was not the result of undue influence. The burden was on the propounders, and the weight of the evidence is strongly and decidedly against them. We think the court erred in not granting a new trial on this ground. For myself, I will say that when this case was up here before, my mind inclined to this opinion. After a full re-examination and argument, with the additional evidence, I do not, and cannot, entertain a doubt on this point. 24 Ga. R. 663. But it has been insisted that the paper itself was evidence of sanity, because it divides the property equally. Cartwright v. Cart- wright is relied on for this position. On examination, the will of Armyne Cartwright will be found in every respect different from the one before us. That will gave all the property to one side of 250 TESTAMENTARY CAPACITY. the house, and yet it was said to be natural. Why ? Because it was in strict accordance with the attachment of the deceased, and her testamentary intentions while sane. This is not pretended for the will of Littleberry Lucas. Miss Cartwright wrote her own will alone, and there was absolute proof of absence of fraud and undue influence. The very essence of a will is the wish of the testator. His affections, therefore, rather than apparent equality, are the true test of a natural will. According to the judgment and feelings of Littleberry Lucas, for many years of his sane life, a will equal on its face was not equal in fact, and did not represent his wishes. In Cartwright v. Cartwright, Sir William Wynne said, " it was a proper and natural will, and conformable to what her affections were proved to be at the time. Where is the slightest evidence in this whole record, that Littleberry Lucas ever did for a moment change his affections and intentions as represented in the first fourteen items of the will of 1845 ? Was not one of the very last acts of his sane life a solemn reaffirmance of the whole will ? During the progress of the trial, and while Colonel Trippe was on the stand, the caveator's counsel sought to prove by him the submission to propounders by caveator, of the following proposi- tion to compromise the case, viz. : "I propose to J. M. Parsons and Biza Holsten, to divide with them equally the money and notes and negroes given me by my father's will, executed in July, 1845, provided they will agree to divide with me equally at my mother's death the share which she takes in the same will. This proposi- tion to be accepted or rejected in ten days. October 6th, 1855. Signed by C. M. Lucas." The caveator's counsel further stated to the court that tliey expected to show that Parsons replied to this proposition as follows : " If this proposition is accepted, will the old will be set up ? " Colonel Pinckard said, " Yes, except so far as it is annulled by the terms of the proposition." Then Parsons replied, " Do you think I would accept such a proposition as that ? " and rejected it. The only purpose of introducing the proposition was to make the reply intelligible, and the object of proving the reply was to show that the propounders were not opposed to the old will of 1845, because the money and notes were left to C. M. Lucas, — the ground which caveator insists was always put in the mouth of deceased while deranged, but because of the settlements to the separate use of the daughters, and the special legacy to 0. M. Lucas' children. The court rejected the evidence, ou the ground PARTIAL INSANITY. UNDUE INFLUENCE. 261 that it was enabling caveator to manufacture evidence for himself. We do not see how caveator manufactured the reply of Parsons, and that is the real evidence sought. Our brother Trippe is very indignant, because the proposition does not include Mrs. Lucas. A sufficient reply to that is, that Dr. Parsons did not reject it for that reason, and his reply is the real evidence sought. The evidence proposed is the sayings of a party to the record, and is certainly good against him, and against all who, with him, seek to set up a paper which the caveator alleges was fraudulently procured. We think the evidence was admissible, and reverse the judgment of the court below, also, on this ground. We have here the exposition, by another very learned and experienced judge, of another phase of insanity or mental perversion, — the entire change which the person suffers in his conduct and mental characteristics, sometimes in the course of a very short period, many times not exceeding a few months, or even weeks. Eccentric or peculiar habits, acquired suddenly, are justly regarded as evidence of insanity. Taylor, Med. Jur. 682, 656 (6th ed.) . In this view it is not so im- portant to compare the conduct of the testator, at the time of executing his will, with the conduct of other people supposed to be sane, as to compare it with his own conduct when he was confessedly in his sane and normal condition. There is probably no surer test of unsoundness of mind than for one suddenly to change his entire character, and become as distinctly different from his former self as two different persons are different from each other. 4. Trumbull^. Gibbons, 2 ZabrisMe's New Jersey Heports, 117, 155. 1849. Partial insanity, or monomania, will render a will void which is produced by it. Influence acquired by kind offices, or even by persuasion, unconnected with fraud or contrivance, will not avoid a will affected by it. But such acts may be so practised, through the prejudices of the testator, in producing an unjust will, as to avoid it. This is a case where a very large amount of property was in- volved and the ablest counsel employed, and the questions presented very thoroughly examined. It is therefore one, in many respects, entitled to more than ordinary confidence and respect. The opinion of the court was delivered by — Caepenter, J. But it has been urged with great earnestness, on the side of the lessors of the plaintiff, that there was hallucina- tion of mind on the part of the testator towards Trumbull and his 252 TESTAMENTARY CAPACITY. family, a causeless and unwarrantable dislike amounting to mono- mania, and that this state of feeling was caused, or at any rate practised on, by the son, who thus obtained the disposition in his own favor. Every person is presumed to be of sound mind, until the con- trary is proved ; it is therefore incumbent on the party attempting to defeat a will on the ground of the testator's insanity, to prove the existence of such disability. The rule is well established by authority, and it is one which is in accordance with sound reason. He who wishes to impeach a will for such cause must support his allegation by proof, before he can overcome the presumption which the law raises of the sanity of the testator. Shelford on Lunacy, 274 ; Sloan v. Maxwell, 2 Green's Ch. Eep. 581. Tiiis is not one of those cases in which it is a question what amount of capacity will enable a testator to dispose of his estate, or what weakness of understanding will disable him from so doing. It was not contended in the argument that there was any thing in the case to show general insanity or a general want of testamentary capacity on the part of the testator. He was a man of unusual powers of mind, and, as the evidence shows, he retained those powers nearly or quite to the close of his life, certainly down to the period of making this will. But while it was admitted that he was a man of more than ordinary vigor of intellect, yet it is said that he labored under a morbid state of mind, of the character already mentioned, and that the will was the offspring of such feelings. When delusion exists in the mind of a person on one or more sub- jects only, it is termed partial insanity. I do not question but that partial insanity will invalidate a will which appears to have been the direct result of such insanity, though the testator, at the time of making it, may have been sane in other respects upon ordinary topics. The great case of Dew v. Clark, 1 Add. 279 ; 3 Add. 79, may be considered as establishing this doctrine. The testator in that case harbored the most unfounded and unreasonable impressions in regard to the character of an only daughter, against whom, in con- sequence, he entertained a natural dislike. He imagined that the daughter was vile, profligate, and depraved in the highest degree, and treated her accordingly with the utmost severity, and even cruelty, and finally cut her off in his will with an inadequate pro- vision. It was a dislike founded purely on delusion. It was satisfactorily shown, that while this delusion had gained such pos- INSANE DELUSION. 253 session of his mind that nothing could shake his belief, yet, in point of fact, she was amiable in disposition, engaging in her man- ners, of superior natural talents, diligent, dutiful, affectionate, modest, and virtuous, and giving no occasion for the extraordinary feelings exhibited by the father. The will, being proved to be the direct offspring of this delusion, was set aside and declared void by the distinguished judge before whom the cause was first heard ; and his judgment was subsequently sustained by the courts before which, by appeal or otherwise, it was brought for review. The case turned on the fact of a remarkable delusion, the only clear test of insanity, unquestionably proved, and it has since received the unqualified approbation of the profession. See same case, on application for commission of review, 1 Russ. & Mylne, 103, and Shelford, 297. In what does the alleged delusion exist, or how has it been ex- hibited in the present case ? I have carefully looked through tlie testimony to be found in the case prepared, and in the documents, including the diary and the libels, which evidence I am not dis- posed to recapitulate or record. It is sufficiently referred to and stated in the charge of the Chief Justice for the present purpose, and it undoubtedly exhibits a sad instance of the extent to which family feuds may be carried. There seems to have been, on the one side, an imperious and haughty temper sustained by wealth and power, and restrained by no softening influences from moral or religious principles. On the other, as I take it, there was great imprudence on the part of a daughter and son-in-law in dealing with the errors of an uncontrollable and violent parent, upon whom they were dependent. But I can find nothing like delusion or insanity. The first dissatisfaction and incipient dislike were heightened, by continued disputes and irritation, into settled aver- sion and enmity ; but this was the result of obvious causes having an actual existence, and not the consequence of imaginary diffi- culties. The rebukes for alleged licentiousness, the disputes and difficulties with regard to property, threatened divorce, the libel suit, — all these matters, which embittered the feelings of the testator to the highest degree, were not mere imaginary causes of offence. These and other successive bitter quarrels between the testator and his son-in-law, daughter, and family, certainly occurred, and they account for the provisions of the will, by which the latter were disinherited, without any necessity to resort for explanation 254 TESTAMENTARY CAPACITY. to monomania or any other form of insanity. No one witness produced, not even Mr. Trumbull himself, towards whom this hallucination was said chiefly to exist, has expressed the opinion that the testator was in the slightest degree insane. The idea of undue influence need not be resorted to in order to account for a result which might naturally flow from causes such as have been merely alluded to : certainly it must be clearly proved, and cannot be inferred under such circumstances. It has been said that the influence to vitiate a testamentary act must amount to force and coercion destroying free agency, importunity which could not be resisted, and which was yielded to for the sake of peace, so that the motive was tantamount to force or fear. It is not the influence acquired by kind ofiices, or even by per- suasion unconnected with fraud or contrivance ; though if persuasion or other means of influence be connected with fraud, it may admit of a far different consideration. Fraud may be employed as means of influencing, and may afford ground for impugning, a testamen- tary act no less than force, and the peculiar relation between the testator and the party benefited, as client and attorney, &c., when the former was weak and liable to imposition, has been held to furnish strong presumptions in regard to undue influences. But I can see no such evidence in this case as will support the charge. No direct coercion can be pretended ; but the relation between the testator and his son, in connection with the circumstances under which the alienation in the family took place, and in connection with the circumstances under which the will was made, and the character of the dispositions for the benefit of the son, are relied on as proving or authorizing the inference that the prej- udices and feelings of the father were practised upon. These circumstances were recapitulated by the judge in his charge, and submitted to the jury as grounds for a vigorous examination, and they would, as stated, go far to raise suspicion, if the father had been a man likely to be controlled or influenced, if the disposition had not been in accordance with intentions long previously ex- pressed. The employment and payment of the scrivener by the son, the aid he gave in drafting the will, his conduct towards Trumbull, his connection with the printing of the libel, and the part taken in drawing and signing the covenant, undoubtedly de- serves attention at the trial, and under some circumstances might have weighed much in the investigation. Yet still they are but DISCUSSION OP ITS REQUISITES. 255 mere grounds of suspicion, while the character and conduct of the testator repel the idea that he was operated on by any such ex- trinsic influence as could be effective to set aside his will. The father was a man who, according to the testimony, could not be controlled, " a man of strong mind, strong passions, strong prej- udices, and strong self-will." He had quarrelled with Trumbull years before : additional causes of irritation had from time to time sprung up, in regard to which there is no proof that they were stimulated or aggravated by the son ; and even if such had been the case, it could scarcely have been urged as a ground for impugn- ing a will made so long subsequent. He had repeatedly .declared that, in a certain event, he would cut off Trumbull and his chil- dren from all further benefit of his estate ; and when that event occurred, which depended on the action of Trumbull himself, he reiterated his determination, to which he unalterably adhered. In 1819, he made, a will, in which he carried that determination into effect, and in two or three subsequent codicils, all, as well as the will just referred to, his own handwriting, his continued action was in perfect accordance with his previously declared intentions. These former wills and his antecedent declarations and conduct were all in entire accordance with the actual disposition finally made, and leave no other conclusion on my mind but that the last will was the result of a deliberate determination on the part of the testator, and not of any extrinsic influence. In my judgment the jury rightly responded to the inquiry, so emphatically and so prop- erly put to them in the charge, that they were to inquire, not whether the will was a fair will, a just will, an equitable will, the will of a kind-hearted and right-thinking man, but wliether it was the will of Thomas Gibbons. The judge properly put the case to the jury with a directness and an emphasis suitable to the occasion. No other verdict could have stood, and it was right that the jury should not be permitted to err from feelings which possibly may have been excited by the harshness of the will, when the evidence was clear and the case free from doubt. I have Hot thought it necessary to notice some of the minor points argued by counsel, because, in the view I take of the case, they become immaterial. I have come to the conclusion, after a careful examination of the case, and after an anxious attention given to the argument of the respective counsel, that there was no 256 TESTAMENTARY CAPACITY. misdirection by the judge ; that the verdict is in accordance with the evidence, and that the rule should be discharged. There is, no doubt, great difficulty in defining, with satisfactory clearness, so as to be of much practical use, the precise limits of partial insanity, and the exact degree of it which is properly consistent with the existence and exercise of the testamentary capacity. The two most difficult points to be considered in this connection are, unquestionably, (1) the distinction between suspicion, jealousy, prejudice, and other similar traits of mind or feeling which are regarded as being consistent with a sound and healthy state .of mind, and that degree of delusion which is regarded as morbid and as disqualifying the person for the valid exer- cise of the mind upon subjects coming within the range of the morbid affection. There can be no question that the approach towards insane delusion, in most cases, is gradual, and is really nothing more than the ordinary progress from health to confirmed disease. This gradual progress, too, is peculiar. It is not continuous and progressive, like ordinary disease. The mere voluntary effort of the mind, in some cases, is capable of effecting more or less diversion from the morbid tendency. Circumstances, too, will constantly intervene, more or less, increasing or retarding this progress. And the precise point of time when, and the place where, the mind passes the invisible line forming the boundary between health and disease, is so nice and incomprehensible as to elude the severest scrutiny. We can only judge by results, and our organs of observation are so imperfect that we can only judge of those results at considerable intervals, and after the occurrence of marked progress. Insane delusion will sometimes come very suddenly upon one, as the result of some sudden and well-defined shock. It may be either painful or pleasurable, but more commonly the former. In such cases the illusion or delusion is so marked, commonly, both in its occur- rence and departure, that there will be no great uncertainty in regard to it. But where the delusion is the result of doubt or anxiety, extending over a consider- able space of time, — whether the subject be religion or politics, or of a more private and domestic character, — the yielding of the mind is so gradual, com- monly, that one familiar with the person during the progress of the declension, will, when the delusion has become fixed, recollect many things in the language or con- duct of the person far back, which now clearly indicate that the breaking-up of the mind must have been extremely slow and gradual. This should lead all per- sons concerned in such inquiries to watch with extreme caution, and weigh with carefulness and impartiality, any marked departure of the person from his normal conduct in health and comfort. Whenever we feel compelled to admit that the person talks or acts strangely, — that is, not so much strangely as compared with the general conduct of others, but as compared with his own former con- duct, — we ought to suspect that the mind is becoming unsettled upon the particular subjects of this strange action. It has commonly been held by the courts that, until some clearly defined insane delusion is shown to have taken possession and control of the mind, it must be regarded in law as sufliciently sound to make a valid will. And where there is nothing in the provisions of the will itself to excite our suspicions, this MONOMANIA OR PARTIAL INSANITY, 257 rule may be regarded as a safe one. But whenever the provisions of the will itself are of an unusual and extraordinary character, and especially when these unreasonable or unnatural provisions have reference to the same persons, and are in the same direction which pre-existing jealousies, suspicions, or other excited states of the mind of the testator would lead us to have expected them to be, if the result of such morbid feelings, we should not readily assent to the entire soundness of the testator's mind ; surely not without the most satisfactory proof that such really was the fact. It may be said that this is making the character of the will more decisive in regard to the existence of testamentary capacity, at the time of its execution, than would seem quite consistent with the perfect right to dispose of one's property with entire freedom. It certainly has some- thing of that appearance. And we have sometiihes felt that juries, in passing upon questions of testamentary capacity, were too much influenced in their de- terminations by the character of testamentary acts ; and, no doubt, this is often so. We by no means intend to say that the character of the provisions of a will are entitled to a controlling weight, in determining its validity, in all cases. That would, indeed, be to bring the right of making wills to the test of reasonableness, to be judged of by a jury, — a somewhat imperfect measure of freedom. Such a rule could have no j ust application to a testator of unquestionable sanity and mental capacity. But where the mind is weak, or flighty, or possessed by unnatural jealousies and suspicions, exposing the testator, on every side, to improper or undue influences, the nature of the very act, upon whose rational production or authorship we are called to pass, cannot but have a very controlling influence in determining the question. And it seems to us that no one can object to this as the rule of law upon the point. If one claims to make an un- reasonable or absurd will, he has no just ground of complaint that courts and juries should require more abundant proof of his full capacity to act with dis- cretion, and of his entire freedom from all improper influences, than in ordinary cases of natural and reasonable testamentary dispositions. The cases bearing upon this particular inquiry are considerably numerous in the books, and are generally referred to in 1 Redf. Wills, p. 71 et seq. Green- wood's Case, 3 Curteis, 230, referred to in 13 Vesey, 88, is one of the most marked to be found anywhere in the books. The testator had conceived an insane delusion in regard to his brother having attempted to poison him during a severe illness, and could never be brought to think otherwise upon this point, although fully restored to soundness of health and entire sanity upon all other questions or subjects. In consequence of this insane delusion he disinherited his brother. The case was finally compromised, but there can be no reasonable doubt it was a decided case of monomania. The case of Dew v. Clark, 1 Add. 279, 3 Add. 79, is another case of a similar character, which we have very care- fully examined, 1 Wills, 74 et seq. There are many American cases where this subject is carefully and thoroughly examined and discussed, many of which will be found in this volume. Potts v. House, 6 Ga. 324 ; s. C. post, p. 262 ; Townshend v. Townshend, 7 Gill, 10, ante, p. 89 ; Boyd v. Eby, 8 Watts, 66 ; s. c. ante, p. 218 ; Seamen's Friend Society V. Hopper, 33 N. Y. 619 ; 8. c. ante, p. 223 ; Lucas v. Parsons, 27 Ga. 693 ; 8. c. ante, p. 238. 2. The next point to be considered under this head is, that where the mind of 17 258 TESTAMENTARY CAPACITY. the testator is clearly shown to have entertained insane delusions upon any sub- ject, such as rest upon no evidence, but are the mere creations of a morbid imagination, and in regard to which the testator is incapable of reasoning, or being reasoned with, it should be admitted with extreme caution that the testator is entirely sound upon other subjects. One very eminent man, and somewhat experienced judge. Lord Brougham, carried this caution so far, that in Waring V. Waring, 6 Moore P. C. C. 849, he declared that where the mind was unsound upon any one subject, it must be regarded as so, more or less, upon all sub- jects ; thus denying the existence of monomania, or partial insanity. But that proposition has been entirely denied and overruled in the later case of Banks v. Goodfellow, Law R. 5 Q. B. 649. The opinion here pronounced is a masterly review of the subject, both upon principle and the decided cases, embracing many of the American cases. The same view is maintained in the Court of Probate, in Smith v. Tibbit, L. R. 1 P. & D. 398 ; Broughton v. Knight, 3 P. & D. 64, in which cases the subject is very ably discussed by the learned judges giving the opinions. And while it is certain that testators, confessedly insane upon some particular subject, may make valid testaments which do not come into the domain of their monomaniac tendencies, it is equally clear that all wills made by testators of this character require the strictest scrutiny ; and where such wills are liable in any degree to have been produced or influenced by such mono- mania, they cannot be maintained. And where the instrument itself is either partial or unjust in its dispositions, or contains unreasonable or absurd pro- visions, it must be presumed, in the absence of counter evidence, to have been the offspring of delusion or monomania, ripening into general mental perversion, and cannot be maintained ; so that we must conclude that where the testator is shown, about the time of the execution of the will, to have been laboring under mental excitement or perversion, verging in any degree towards morbid delusion or monomania, an unnatural or unreasonable will cannot be supported, without the clearest proof that the testator acted freely, and not under the influences of any incipient mental unsoundness ; and where the testator has really become monomaniac upon any particular subject, no will of his can be supported which in any manner comes into the range of such monomania ; and if the instrument be unnatural or unreasonable, it will be presumed to have been the offspring of mental perversion and unsoundness, unless the proponent furnish the most satis- factory proof that such was not the fact. VII. Senile Dementia, its Effect upon Testamentary Capacity. 1. Van Akt v. Hunter, 5 Johnson's Chancer^/ Reports, 148, 158. 1821. Neither old age, sickness, or debility disqualify one for making a will, if suffi- cient mental capacity still remain. The character of the will, when natural, just, and reasonable, must have weight SENILE DEMENTIA. 259 in determining the comprehension and capacity of the testator, where he is shown clearly to have dictated it. The absence of all pretence of influence or fraud in procuring it is worthy of great consideration. So, Ijoo, where the witnesses impute no single act of folly to the testator, it tends greatly to show he still retained considerable mind. ( The opinion of Kent, Chancellor, sufficiently presents the facts. We are next led to look into the testimony in this case, and to determine whether, under all the circumstances, it be expedient and proper that there should be a new trial. The testator was between 90 and 100 years of age when he made his will, but it is well understood that age alone will not dis- qualify a person from making a will, provided he has a competent possession of his mental faculties. " A man may freely make his testament, how old soever he may be, for it is not the integrity of the body, but of the mind, that is requisite in testaments." Swinb. pt. 2, § 5. This has been the doctrine of law in every age. Senium quidem cetatis vel cegritudinem corporis sinceritatem mentis tenentium, testamenti f actionem certum est non auferre. Code, 6, 22,3. Sola, ac perse, senectus donationem testamentum aut trans- actionem non vitiat. Code, 8, 54, 16, note 62. The law looks only to the competency of the understanding ; and neither age, nor sickness, nor extreme distress or ability of body will afiFect the capacity to make a will, if sufficient intelligence remains. Voet, in his Commentaries on the Pandects, Lib. 28, tit. 1, § 36, ex- preses himself on this point in the strongest and most emphatical language : licet enim non sani tantum, sed et in agone mortis positi, seminece ac halbutiente lingua voluntatem promentes, recta testamenta condant, si modo, mente adhuc valeant. Nor does the will, in the present case, upon its own intrinsic merits, betray a want of competent mental powers in the testator. He lived to witness three generations descended from his loins, and he had but one child left in the first degree, and this was his daughter, Mrs. Hunter, who undoubtedly felt the force of filial love and gratitude much more strongly and vividly than the remoter generations. The affections, and consequently the kindness and attention, of the descendants naturally grow more languid as the generations recede from the common ancestor. It was she who alone survived to nurse him with a daughter's care, and " to rock 260 TESTAMENTARY CAPACITY. the cradle of reposing age." He had also been, for sixty years, a man of domestic and retired habits, and during all that time almost wholly confined to his farm, on which he died, and which he had cultivated and guarded with care and attachment. Nothing was more natural and agreeable to the course of the affections, than that he should cRerish a wish, which he so often declared, to have that homestead (as it is termed in his will) preserved entire for his daughter, and not sold or parcelled out among twenty or thirty distant descendants. He, therefore, devised this homestead, with the stock upon it, to his daughter and her husband, and charged it with a legacy of $1,700 to a particular grandson who lived with him. The residue of his estate he distributed equally among a numerous progeny of grand and great grand children ; and I should feel reluctant, without pretty strong proof of incapacity, to disturb a will replete with so much just feeling and rational calculation. It is one of the painful consequences of extreme old age that it ceases to excite interest, and is apt to be left solitary and neglected. The control which the law still gives to a man over the disposal of his property, is one of the most efficient means which he has in protracted life to command the attentions due to his infirmities. The will of such an aged man ought to be regarded with great tenderness, when it appears not to have been procured by fraudu- lent arts, but contains those very dispositions which the circum- stances of his situation, and the course of the natural affections, dictated. There is no ground whatever in this case for the imputation of fraud or unfair practices in the procuring of this will. The man- ner in which this will was read over to the testator, and corrected and executed, and the reputation of the person by whom it was drawn, and the character and knowledge of the subscribing wit- nesses, have satisfied me that it was fairly executed. The whole case resolves itself into one simple question of fact, whether the testator, by reason of age, had or had not lost his sound disposing mind and memory ? It is worthy of observation that not a single act of folly or im- becility is imputed by any of the witnesses to the testator. The witnesses on one side represent his memory as gone, and that he was always of weak understanding, and quite illiterate ; and they then give their opinion that he was not competent to make a SENILE DEMENTIA. 261 will. The witnesses on the other side represent him as a man of remarkable activity and memory for his age ; and they give nu- merous instances of his vigilant and sharp attention to his prop- erty. I cannot perceive that a single foolish act or saying has been imputed to him. And all the proof of mental imbecility seems to have been inferred from his loss of memory, exceptit be, perhaps, in the case of a conversation with a clergyman on the subject of religion. The weight of testimony, from the proofs taken in chief, appears to me to be decidedly in favor of the requisite competency of mind ; and that preponderancy of testimony is increased by the facts detailed by the five new witnesses who were examined at the trial on the part of the defendants. The failure of memory is not sufl&cient to create the incapacity, unless it be quite total, or extend to his immediate family and property. The Roman law (Code, 6, 24, 14, and note 55) seemed to apply the incapacity only to an ex- treme failure of memory, as for a man to forget his own name, — fatuus prcesumitur qui in propria nomine errat. There was no defect of memory, in this case, in respect to any thing very essential; and the witnesses give many instances of a strong and correct memory in the testator. The want of recollection of names is one of the earliest symptoms of a decay of the memory, but this failure may exist to a very great degree, and yet " the solid power of understanding" remain. There does not appear to me to be any just ground for a new trial. There is no new light to be thrown on the subject by further proof; and I am more satisfied with this verdict than I should have been, if it had been on the other side. If a second trial was to be had, and a verdict found the other way, it would seem almost to follow of course (assuming the fact that the verdict was found upon the same testimony) that a third trial must be awarded, in order to turn the scale. The property and the parties would prpb- ably be, by that time, nearly exh.austed by such very expensive and distressing litigation; and' I do not see that such a result would promote either the ends or the reputation of the administra- tion of justice. I shall, accordingly, deny the motion for a new trial, and shall hold the plaintiffs concluded by the verdict from contesting at law the title of the defendants under the will, and shall enjoin them perpetually from proceeding at law to question that title. 262 TESTAMENTARY CAPACITY. The foregoing opinion is one of the earliest and most satisfactory in this country upon the important subject of the effect of old age upon testamentary capacity. The subject has been more extensively discussed in later cases, but nowhere more clearly and justly than in this case. The opinions of Chancellor Kent require no commendation at our hands, and we feel sure w.e could give the profession no testimony upon this all-important subject which would command more universal concurrence. The case which we next present to our readers, Potts v. House, 6 Ga. 324, has been more extensively quoted than almost any other in the American Reports, upon the subject of testamentary capacity. Upon the points discussed it contains almost a treatise in itself. We shall have occasion to discuss most of the ques- tions here pursued more in detail hereafter. 2. Potts V. House, 6 Georgia Reports, 324, 336. 1849. 4. The opinions of unprofessional witnesses are admissible in connection with the facts testified to by them upon questions of testamentary capacity. 11. The degree of capacity requisite, in persons of extreme old age, to make a valid will discussed and defined. 12. The terms nan compos mentis imply a total want of mind, and such persons cannot make valid wills, however just and reasonable in themselves. 13. Partial insanity upon the particular subject of the will, or with reference to the particular legatee, will invalidate the will. 14. If the testator had testamentary capacity, his will must stand, however un- reasonable. 15. Undue influence in procuring a will implies moral coercion and the depriva- tion of free-agency. The facts necessary to the full understanding of the questions discussed will appear in the opinion of the court by — Lumpkin, J. But the opinions of witnesses, other than physi- cians and the subscribing witnesses to the will, considered merely as opinions, are not evidence. Doe v. Reagan, 5 Blackf. 217 ; Clark V. The State, 12 Ohio, 483 ; Needham v. Ide, 5 Pick. Rep. 510. This latter proposition, although sustained by the current of authorities, has not commanded universal acquiescence ; and the distinction between subscribing witnesses and any others who may happen to be present is certainly not very obvious. The latter are more likely to be free from bias, which naturally will OPINIONS OP UNPROFESSIONAL WITNESSES. 263 influence the former to support their attestation. It would seem, therefore, eceteris paribus, that the testimony of other witnesses should have more weight on account of their being more indiifer- ent. Vide Dickinson v. Barber, 9 Mass. Eep. 227 ; McKee v. Nelson, 4 Cow. 355, 1 Phil. 275. Tliis subject has been frequently before the courts, but nowhere perhaps so thoroughly, ably, and philosophically handled, as by the late Judge Gaston, in Clary v. Clary, 2 Iredell's Law Rep. 78. " The first opinion in the court below," says the judge, " to which exception has been taken, is the rejection as evidence of the last clause of the deposition of John Beard, wherein the deponent stated ' that he was impressed with the belief that, as to her mental faculties, Mary Clary was in the state called childish.' To under- stand the import of this part of the deposition, it must be taken in connection with what precedes it. The substance of the entire deposition is, that the witness had no acquaintance with Mary Clary, other than such as resulted from one occurrence, — that about the year 1826, eleven years before the execution of the deed in dispute, he visited her at Daniel Clary's house, in consequence of a message from said Daniel, and for the purpose of writing her will ; that he received her directions with respect to the disposi- tion of her property, and wrote the will according to these direc- tions ; that he did not attest the will, but left it to be attested by others ; that at this time she appeared to him to be in good health, but he thought her intellect in the state they usually term childish. The objection to tiie rejected part of the deposition was, that it gives the opinion of the witness upon the state of Mary Clary's mind. "It is certainly the general rule that witnesses shall be examined as to facts whereof they have personal knowledge, and not as to those in regard to which they have no personal knowledge, but have only formed an opinion or belief. But this rule necessarily admits of exceptions. There are facts which, from their nature, exclude all positive proof, because they are imperceptible to the senses, and of these no proof can be had except such as is mediate or indirect. No man can testify, as of a fact within his knowledge, of the sanity or insanity of another. Such a question, when it arises, must be determined by other than direct proof. The pre- cise inquiry then is, must the evidence be restricted to the proof of other facts coming within the knowledge of the witnesses, and from which the jury may draw an inference of sanity or insanity ; or may 264 TESTAMENTARY CAPACITY. the judgment and belief of the witnesses, founded on opportuni- ties of personal observation, be also laid before the jury to aid them in forming a correct conclusion ? We are not aware of any direct and authoritative decision which supersedes the necessity of recur- ring to general principles and legal analogies to ascertain what is right. " In the first place, it seems to us that the restriction of the evi- dence to a simple narration of facts having, or supposed to have, a bearing on the question of capacity, would, if practicable, shut out the ordinary means of obtaining truth, and if freed from this ob- jection cannot, in practice, be eifectually enforced. The sanity or insanity of an individual may be matter notorious, and without doubt, in a neighborhood, yet few if any of the neighbors may be able to lay before the jury distinct facts, that would enable them to pronounce a decision thereon with reasonable assurance of its truth. If the witness may be permitted to state that he has known the individual for many years ; has repeatedly conversed with him, and heard others converse with liim ; that the witness had noticed that in tlieir conversations he was incoherent and silly ; that in his habits he was occasionally highly pleased and greatly vexed without a cause ; and that in his conduct he was wild, irrational, extravagant, and crazy, — what would this be but to declare the judgment or opinion of the witness of what is incoherent or foolish in conversation ; what reasonable cause of pleasure or resentment ; and what the indicia of sound or disordered intellect ? If he may not testify, but must give the supposed silly or incoherent lan- guage, state the degrees and all the accompanying circumstances of highly excited emotion, and specifically set forth the freaks or acts regarded as irrational, and this without the least intimation of any opinion which he has formed of their character, — where are such witnesses to be found ? Can it be supposed that those not having a special interest in the subject shall have so charged their memories with those matters, as distinct, independent facts, as to be able to present them in their entirety and simplicity to the jury or if such a witness be found, can he conceal from the jury the impression which has been made on his own mind ? And when this is collected, can it be doubted but that his judg- ment has been influenced by many, very many circumstances whicli he has not communicated, which he caniiot communicate, and of which lie is himself not aware ? " We also think that there is an analogy in the investigation of OPINIONS OP UNPROFESSIONAL WITNESSES. 265 questions of this kind, and in the investigation of other questions, wherein positive and direct evidence is unattainable, and in which the rule of evidence is well established. Of this kind are questions of personal identity, and handwriting. Mere opinions, as such, are not admissible ; but where it is shown that the witness has had an opportunity of observing the character of the person, or the handwriting which is sought to be identified, then his judgment or belief, /ramed upon such observation, is evidence for the considera- tion of the jury ; and it is for them to give to this evidence that weight which the intelligence of the witness, his means of obser- vation, and all the other circumstances attending his testimony, may, in their judgment, deserve. And why is this, but because it is impossible for the witness to specify and detail to the jury all the minute circumstances by which his own judgment was deter- mined, so as to enable them, by inference from these, to form their judgment thereon. And so it is in regard to questions respecting the temper in which words have been spoken or acts done. Were they said or done kindly or rudely, in good humor or in anger, in jest or in earnest ? What answer can be given to these inquiries if the observer is not permitted to state his impression or belief? Must a facsimile be attempted, so as to bring before the jury the very tone, look, gesture, and manner, and let them collect there- upon tlie disposition of the speaker or agent ? " In the ecclesiastical courts, where questions of sanity and in- sanity in cases of wills are of frequent occurrence, the practice is to interpose allegations, and admit these allegations to proof, that the general appearance, manners, conduct, and deportment of the testator denoted unsound intellect ; that he was treated and re- garded by h's friends and acquaintances as one not in his right senses ; and, on the other hand, to receive pleas, and consequently proofs, that he was regarded by his friends and acquaintances as sane ; that he was engaged in acts of business, which he conducted without suspicion of unsoundness, and that his general deportment was rational and proper. See Wheeler and Batford v. Alderson, 3 Haggard, 574. In this case it was stated by Sir John Nicholl, in pronouncing his judgment, ' There is a cloud oi witnesses who gave unhesitating opinions that the deceased was mad.' He declared, indeed, upon a consideration of all the circumstances of the case, ' their opinions are of little weight,' but he did not reject them as inadmissible, nor remark upon them as contrary to the course of the 266 TESTAMENTARY CAPACITY. court. See also the testimony received in the case of Eagleton and Coventry v. Kingston, 8 Ves. 449. " It is a well-known exception to the general rule requiring wit- nesses to testify facts and not opinions, that in matters involving questions of science, art, trade, or the like, persons of skill may speak not only to facts, but give their opinions in evidence. It is insisted that, by the terms of this exception, persons not claim- ing to possess peculiar skill, and all persons upon matters not requiring peculiar skill, are excluded from giving opinions. Cer- tainly the testimony rejected in this case cannot claim to be admit- ted under this exception, and, as we understand the exception, it does exclude mere opinion in all cases other than those which are embraced within it. Professional men are permitted to testify to the principles and rules of the science, art or employment, in which they are especially skilled, as general practical truths or facts ascertained by long study and experience, and also may pro- nounce their opinion as to the application of these general facts to the special circumstances of the matter under investigation, whether these circumstances have fallen under their own observa- tion, or have been given in evidence by others. " The jury being drawn from the body of their fellow-citizens, are presumed to have the intelligence wliich belongs to men of good sense, but are not supposed to possess professional skill, and therefore, in matters requiring the exercise of this skill, are per- mitted to obtain what is needed from those who have it, and who are sworn to communicate it fairly. Thus shipmasters have been allowed to state their opinions on the seaworthiness of a ship, from a survey which has been taken by others ; physicians, to pro- nounce upon the effect of a wound which they have not seen ; and painters and statuaries, to give their opinion whether a painting or a statue be an original or copy, although they have no knowledge by whom it was made. This is mere opinion, although the opinion of skilful men. This none but professional men are allowed to give, in matters involving peculiar skill, and none whatever are allowed to give in matters not involving skill ; because, with this exception, the jury are equally competent to form an opinion as the witnesses, and with this exception, their judgment ought to be founded on their own unbiassed opinion. But judgment founded on actual observation of the capacity, disposition, temper, char- acter, peculiarities of habit, form, features, or handwriting of OPINIONS OP UNPROFESSIONAL WITNESSES. 267 others, is more than mere, opinion. It approaches to knowledge, and is knowledge, so far as the imperfections, of human nature will permit knowledge of these things to be acquired ; and the result thus acquired should be communicated to the jury, because they have not had the opportunities of personal observation, and be- cause in no other way can they effectually have the benefit of the knowledge gained by the observations of others. " It has also been insisted that there is a difference between the attesting witnesses to an instrument and other witnesses, as to their competency to express an opinion upon the capacity of the maker. Wherever snch a difference has been intimated, it seems confined to cases of wills, in which it is said ' the testator is in- trusted to the care of the subscribing witnesses ; that it is their business to inspect and judge of the testator's sanity before they attest ; that, in other cases, witnesses are passive ; here they are active and principal parties to the transaction.' Now, we can readily conceive why, prima facie, it shall be presumed, that wit- nesses thus engaged are more observant than others, on whom the duty of observation has not been thrown, and also the propriety of the rule which obtains on the trial of an issue of devisavit vel non, that all the attesting witnesses, if to be had, shall be produced and examined before the jury. But we do not see (and without suffi- cient reason or clear authority for such a distinction, we cannot admit it) why the judgment of any witness, actually founded upon such observation, shall not be received in evidence. It is conceded that the attesting witnesses may express an opinion upon the tes- tator's capacity, because as the law has made it their duty to in- spect the testator's capacity, the law presumes that they did observe and judge of it. If observation presumed, be a sufficient ground for receiving in evidence the judgment of witnesses sup- posed to be thereupon formed, it is not readily conceivable that actual observation is an insufficient ground to warrant respect for the judgment of a witness in fact, formed upon it. " It has been also objected, that the witness whose belief or opin- ion of mental capacity was in this case rejected, had not the means of forming such a judgment thereon as was proper to be submitted to the jury. Unquestionably, before a witness can be received to testify as to the fact of capacity, it must appear that he had an adequate opportunity of observing and judging of capacity. But so different are the powers and habits of observation in different 268 • TESTAMENTARY CAPACITY. persons, that no general rule can be laid down as to what shall be deemed a sufficient opportunity of observation, other than it has in fact enabled the observer to form a belief or judgment there- upon. So it is in the analogous case of handwritings. If the witness declares that he has seen the party write, whether it has been only once or a thousand times, this is enough to introduce the inquiry whether he believes the papers produced to be the party's handwriting. His belief is evidence, the weight of which must depend upon a consideration of all the circumstances under which it was formed. It may be that the judgment of the wit- ness in this case, founded solely upon the occurrences in a single interview, and of which, notwithstanding the general impressions thereby created, he remembers no distinct, marked act of childish- ness or folly, would have weighed little with the jury in determin- ing the matter in controversy. But if belief of capacity, founded on personal observation, be evidence, and we think it is, it is ad- missible, whether the opportunity for observation has been frequent or rare. Whatever might be the weight of the rejected testimony, we hold that the plaintiffs liad a right to insist on its being placed in the scales of evidence, and that there was error in the opinion wliich rejected it." This extract, we are sensible, has been extended to an unusual length, but it is a just tribute to its intrinsic worth, as well as to the high standing of its author, who, though dead, still speaks, and will long continue to speak to the legal world, as one Jiaving au- thority. Besides, we feel unusually solicitous, perhaps, to assign reasons for our judgment upon all the interesting questions in- volved in this issue, which will give satisfaction to the parties and to the profession, in a cause, in many of its features, at least, until now, new in this court. In Morse v. Crawford, 17 Verm. Rep. 499, Judge Bennett says : " The law is well settled, and especially in this State, that a witness who is not a professional man may give his opinion in evidence, in connection with the facts upon which it is founded, and as de- rived from them, though he could not be allowed to give his opinion, founded upon facts proved by other witnesses." So also in Lester V. The Town of Pittsford, 7 Verm. Rep. 158, the Supreme Court of Vermont say : " Testimony of opinion may be given, where from the general and indefinite nature of the inquiry, it is not susceptible of direct proof. Thus, upon a question of insanity, OPINIONS OP UNPROFESSIONAL WITNESSES. " 269 witnesses not professional men may be permitted to give their opinion in connection with the facts observed by tliem. But this evidence is always confined to those who have observed tlie facts, and is never permitted where the opinion of the witness is derived from the representation of others. Upon a question of insanity, for instance, witnesses who have observed the conduct of the patient, and been acquainted with his conversation, may testify to his acts and sayings, and give the result of the observation." In Rambler and Another v. Tryon and Others, 7 Serg. & Rawle, 90, the will of Michael Rambler was impeached on tlie ground of imbecility of mind of the testator, from his childhood to the hour of his death. The execution of the will was duly proved by the subscribing witnesses, who liliewise attested the capacity of the tes- tator, — that he was of sound and disposing mind and memory. Witnesses were offered to prove certain facts tending to show an extraordinary dulness of understanding, followed up by the opinion of the witnesses, as founded on the facts, who had known Rambler intimately from his childhood to his grave, that he was incapable, from defect of understanding, to make a will. All this evidence was objected to, and the objections overruled and the evidence ad- mitted. " I am at a loss," says Judge Duncan, " to perceive any plausible reason to support this objection. I know not how other- wise the alleged imbecility of mind could be proved, than by the evidence of those who grew up with him, who marked his conduct in infancy, in the prime of life, and in his decline. The opinion of witnesses, without stating the ground of such opinion, ought not to be received ; but when they state facts indicative of want of common intellect, their opinion is always received. The weight it ought to have will depend on the solidity of the reasons assigned for the opinion, and the intelligence of the witness. To confine the proof to the subscribing witnesses to the will, in such a case, would be absurd. The friends who visit him, the physician who attends him, have equal, if not superior, means of information, to the witnesses who may be called on to attest the publication. The will of any man would depend too much on the subscribing wit- nesses, if no others were deemed competent to testify as to the sanity of the testator. The most spurious instrument would be imposed upon the heir, or the devisee might be deprived of the estate devised, by a conspiracy of the subscribing witnesses. Such conspiracy is not without a precedent in law. Lowe v. Jollifife, 270 ■ TESTAMENTARY CAPACITY. 1 W. Bl. 365. Five subscribing witnesses to a will and a codicil, and a dozen of servants of the testator, unanimously swore him to be incapable of making a will. To encounter this evidence, several of his friends, who had frequently conversed with him during a period of four years, deposed to his entire sanity and more than ordinary intellectual vigor. The will was established and the testamentary witnesses convicted of perjury. This evidence was properly received." In Gibson v. Gibson, 9 Yerg. 329, the Supreme Court of Ten- nessee emphatically ask, " How can a witness describe the disso- ciated and flighty conversation of a lunatic, the fear, the horror, the frenzy of his eye ? How communicate the influences which mind practises upon mind, if he must not speak of inferences, impressions, or conclusions ? " There is good reason, perhaps, why m^re opinions should not generally be relied on as testimony. For even where witnesses are upright and honest, their belief is apt to be more or less warped by their partiality or prejudice, for or against the parties. It is easy to reason ourselves into a belief of the existence of that which we desire to be true ; whereas the facts testified to, and from which the witness deduces his conclusions, might produce a very different impression on the minds of others. But the witnesses having stated the appearance, conduct, conversation, and other particular facts from which the state of the testator's mind may be inferred, they are always at liberty to state their inference, con- clusion, or opinion, as the result of these facts. Had the court admitted the testimony, at the same time instruct- ing the jury that the facts and circumstances, and not the opinions of the witnesses as to the soundness of Potts' mind, or his capacity to make a will, was the primary evidence upon which they must rely in making up their verdict, there might not have been just cause of complaint. But the witnesses on the part of the cavea- tors were not permitted to testify at all as to their opinion or belief. I have scrutinized closely the voluminous testimony adduced on the trial, and find that, in every instance, the facts only testified to by the witnesses were allowed to go before the jury, while the inferences derived from these facts were carefully excluded. It is not my business to say what weight this pbrtion of the evidence ought to have ; it is sufficient at present to say, it ought to have been received. Mutilated as it was, its force and effect must have been greatly weakened. ECCENTRICITY NOT INSANITY. 271 One thing is certain, — that eecentricity, however great, is not sufficient of itself to invalidate a will. 4 McCord's R. 183. Mason Lee, the testator in this case, supposed himself to be con- tinually haunted by witches, devils, and evil spirits, which he fancied were always worrying him. He believed that all women are witches. (In this, perhaps, he was not so singular !) He lived in the strangest manner, wore an extraordinary dress, and slept in a hollow log. He imagined that the Wiggins' relatives, whom he desired to, disinherit, were in his teeth ; and to dislodge them, he had fourteen sound teeth extracted, evincing no suffering from the operation. He had the quarters of his shoes cut off, saying, that if the devil got into his feet, he could drive him out the easier. His constant dress was an Osnaburg shirt, a negro cloth short coat, breeches, and leggings. His wearing apparel, at his death, was appraised at one dollar. He always shaved his head close, as he said that in the contest with the witches, they might not get hold of his hair, and also to make his wits glib. He had innumerable swords, of all sizes and shapes, to enable him to fight the devil and witches successfully ; they were made by a neighboring black- smith. In the daytime, neglecting his business, he dozed in a hollow gum-log for a bed, in his miserable hovel ; and at night kept awake, fighting with his imaginary, unearthly foes. He fancied, at one time, that he liad the devil nailed up in a fire-place, at one end of his house, and had a mark made across his room, over which he never would pass, nor suffer it to be swept. He would sometimes send for all his negroes to throw dirt upon the roof of his house, to drive off ghosts. He had no chair, or table, or plate in his house. He used a forked stick. His meat was boar and bull beef and dumplings, served up in the same pot in which it was boiled, and placed on a chest, which answered him for both table and chair. He made his own clothes ; they had no buttons ; his panfaloons were as wide as petticoats, without a waistband, and fastened round him with a rope. His saddle was a piece of hollow gum-log, covered with leather, and of his own make. His kennel, on which he eat, slept, and dozed away his time, was three feet wide, five feet long, and four feet high. He suffered no bull or boar of his plantation to be castrated. He cut off all the tails of his hogs and cattle dose to the roots ; he said the cows made themselves poor, by fighting the flies with their tails ; but cut them off", and they would get as fat as squabs. He once brought a horse 272 TKSTAMENTARY CAPACITY. from home, cut ofif its ears, and mounted it instantly while bleed- ■ ing. He mutilated, in the same manner, all of his horses and mules. He hoed his corn after frost, saying it would come out green again. His bargains were peculiar, and generally losing. He gave long credits, without interest. He sold one place for $7,000, to be paid in seventeen years, without interest, and if the purchaser did not like the bargain at the end of that time, he was at liberty to give it up, without paying rent. He said that the land, at the expiration of the time, would be worth ten times as much as when he sold it. He purcliased a large body of poor, flat, pine land, without seeing it, and put his negroes there, without a hut to live in. They cleared and girdled the trees of 2,000 acres, for the purpose, he said, of planting it in pinders (ground nuts), by which, he said, he should make a fortune. He never went to church, nor voted, nor was required to do patrol or militia duty. He had a sulky made ; his directions were, to have the shafts exactly nine feet long, and the chair and seat to be square, — the sticks of which were to be worked with a drawing-knife, — not turned, — and the cross-bars were to be square. But enough of these whimsicalities. The will was established ; and upon the appeal, the supervisory tribunal, through its organ. Judge Nott, declared that " the evidence (a part of which only I have quoted) seemed very well to have authorized the verdict which the jury rendered." If the maxim be sound, that what is against reason cannot be law, one might, I think, well doubt the principle of this case, with- out being branded as a sceptic. I subscribe, however, to the doctrine, that it is not every man of frantic appearance and be- havior who is to be considered non compos mentis, either as it regards contracts, obligations, or crimes ; and that one may be addicted occasionally or habitually to the strangest peculiarities, and yet possess a testable capacity. Not only is the greatest singularity insufficient to set aside a will, but it would seem that a mere glimmering of reason would be sufficient to sustain a will. Stewart's Executor, appellant, and Lispenard and Others, respondents, 26 Wendell, 255. Alice Lis- penard, the testatrix, was all her life, as it appears from the testi- mony, incapable of taking care of herself ; and for the most part of it, had to be washed, nursed, and put to bed, the same as a child. She had a vacant expression of countenance, — a silly, IMBECILITY AND IDIOCY. 273 unmeaning laugh, when spoken to. The carriage of her body was awkward and unnatural, and she dribbled at the mouth. She- was not permitted to associate with company. Her food was put on a plate and handed to her, without asking her what she would have. When upwards of thirty-five years of age, she spent her time sitting at the window of the house where she resided, and would sit there, even when the shutters were closed, without speak- ing with any one. She would cry like a child when the children of the family in which she boarded refused to divide tlieir candies witli her. She could not be taught the Lord's Prayer, nor to read, much less to write. The utmost length to which her education ever progressed was to spell words of two syllables. At a later period of her life, the experiment was renewed, but the result attended with no better success ; this appearing to be the ne plus ultra of her intellectual capacity. When her father, Anthony Lispenard, died, his will contained the following remarkable pro- vision, with respect to his daughter Alice : " And as it has pleased Almighty God that my daughter should have such imbecility of mind as to render her incapable of managing and taking care of property, my will further is, that she be allowed five hundred dollars for her maintenance, during her natural life." Yet, not- withstanding all this array of facts, as summed up by the surro- gate (^OampheW), and this deliberate judgment of the father liimself, who, above all others, was best acquainted with the character and mental condition of his unfortunate child, — and made, too, at a period when tliere was nothing to harden his heart towards his daughter, or alienate his affection from her, — her will, bequeath- ing an immense estate, was set up and established. The Court of Errors, in New York, maintaining that imbecility of mind in a testator will not avoid his last will and testament ; that all per- sons, except idiots, lunatics, and those who are non compos mentis, of lawful age, and not under coverture or constraint, are compe- tent to make a will, be their understanding ever so weak. Shelford on Lunacy, p. 37. That courts, in passing upon a will, do not meas- ure the extent of the understanding of the testator ; for if he be not totally deprived of reason, whether he be wise or unwise, he is the lawful disposer of his property, and the will stands as a reason for his actions. Ibid. 39. That a man's capacity may be perfect to dispose of property by will, yet inadequate for the manage- ment of other business, — as, for instance, to make contracts for 18 274 TESTAMENTARY CAPACITY. the purchase and sale of property, — and therefore a Court of Chan- cery may commit the property of a person, incapable of managing his estate, to the charge of a committee, and yet, after his death, give effect to a will made by him, whilst laboring under such incapacity. And I am constrained to say, after the most careful considera- tion, that these doctrines are in accordance with the authorities. Swinburne, one of the oldest, and perhaps still the best writer upon this' subject, says (pt. 2, § 4) : " If a man of mean under- standing, neither wise nor foolish, but indifferent, as it were, be- tween a wise man and a fool, yea, though he rather incline to the foolish sort, so that for his dull capacity he may be termed grossum caput, a dunce, such a one is not prohibited to make a testament, unless he be yet more foolish, and so very simple and sottish, that he may easily be made to believe things incredible or impossible ; as that an ass can fly, or that trees did walk, beasts and birds could speak, as it is in ^sop's Fables." And Lord Coke defines a non compos mentis to be one who, by sickness, grief, or other accident, wholly loseth his understanding. Beverly's Case, 4 Reports, 123, Coke's Lit. 247 a. And Mr. Senator Verplank thus eloquently discourses upon this subject, in the case already referred to in 26 Wendell : — " Taking mankind, such as observation shows us human nature to be, can any other than this be a safe, prudent, just, or politic rule ? When we observe the strange incongruities of human character, the astounding mixture of sagacity and weakness in the same mind, 'the fears of the brave and the follies of the wise ; ' when literary biography shows us the discoverers of truth and the teachers of wisdom, like Newton and Pascal, suffering under ' the variable weather of the mind, the flying vapors of incipient lunacy ; ' when, in ordinary life, it often happens that the most sagacious and prudent, in many of the affairs of business, are yet, in some point of domestic conduct, guilty of absurdities such as the feeblest minds could not commit, — one might almost adopt the startling conclusion of Dr. Haslam, who, after years of professional observation of the phenomena of mental disease, when examined in the remarkable case of Miss Bagster, in answer to the customary question, ' Was Miss B. of sound mind ? ' replied, ' I never knew any human being who was of sound mind.' " So again, if we look around our own circle of acquaintance, OLD AGE, IMBECILITY, IDIOCY. 275 every one must have known aged, blind, or infirm persons unfitted, by the state of their minds or of their senses, for the management of any affairs, and, from their necessary seclusion from the con- cerns of life, entertaining false notions and mixing up the past with the present. Yet these, and such as these, may, by the aid of their friends and families, upon whom they have a right to rely, and with a general understanding of their own interest and the effects of their acts, make wills, conveyances, and other dispositions of property, whicli could not be set aside without gross and mani- fest hardship and injustice. " To establish any standard of intellect or information beyond the possession of reason in the lowest degree, as in itself essential to legal capacity, would create endless uncertainty, difficulty, and litigation, would shake the security of property, and wrest from the aged and infirm that authority over their earnings and savings which is often their best security against injury and neglect. If you throw aside the old common-law test of capacity, then, proofs of wild speculations, or extravagant and peculiar opinions, or of the forgetfulness or the prejudices of old age, might be sufficient to shake the fairest conveyance, or impeach the most equitable will. The law, therefore, in fixing the standard of positive legal com- petency, has taken a low standard of capacity ; but it is a clear and definite one, and therefore wise and safe. It holds (in the language of the latest English commentator) that " weak minds differ from strong ones only in the extent and power of their fac- ulties ; but unless they betray a total loss of understanding, or idiocy, or delusion, they- cannot properly be considered unsound." Shelford. Again, not only are eccentricity and imbecility no just grounds for setting aside a will, but old age does not deprive a man of the capacity of making a testament ; for a man may make his will, how old soever he may be, since it is not the integrity of the body but of the mind that is requisite in testaments, provided the under- standing has not become destroyed by surviving the period that Providence has assigned to the sanity and stability of the mind. The want of recollection of names is one of the earliest symptoms of the decay of memory by reason of old age ; but it is not sufficient to create incapacity, unless it is quite total, or extend to the imme- diate family and property of the deceased. I once walked more than a hundred yards with Luther Martin, of Maryland, for the 276 TESTAMENTARY CAPACITY. purpose of being introduced to his grandson, whom he had brought to college, without his being able to recall to his mind the name of his son-in-law, the father of the young man. And yet I have no idea that his faculties were so far gone and shattered as to have lost their testamentary power. If the testator be capable of doing an act of thought or memory, it is enough. Jacob Bennet, the testator, was between ninety and one hundred years old when he made his will, disposing of his negroes (New York!!!), furniture, and stock on his farm. His will was exe- cuted, — Chancellor Kent holAmg that neither age, nor sickness, nor extreme distress or debility of body, will affect the capacity to make a will, if sufficient understanding remains. He feelingly observes hat " it is one of the painful consequences of extreme old age that it ceases to excite interest, and is apt to be left soli- tary and neglected. The control which the law still gives to a man over the disposal of his property, is one of the most efficient means which he has, in protracted life, to command the attentions due to his infirmities. The will of such an aged man ought to be regarded with great tenderness, when it appears not to have been procured by fraudulent acts, but contains those very dispositions which the circumstances of his situation and the course of the natural affections dictated." Van Alst and Others v. Hunter and Others, 5 Johns. Ch. R. 148. In Browne v. MoUiston, 3 "Whart. 129, Huston, J., said, "that the decedent must be presumed to be competent to make a will until the contrary is proved ; that the presumption of competency is not destroyed by any extremity of age, though it may be weak- ened where the testator is very old, and circumstances additional are proved : but taken alone, it matters not that the testator was a hundred years old at the time of executing the will." So one who is deaf and dumb, whether so from infancy, or his misfortune has been superinduced by subsequent cause, may, nevertheless, make a testamentary disposition of his property. One«who is deaf and dumb from his nativity is, in presumption of law, an idiotj and therefore incapable of making a will ; but such presumption may be rebutted ; and if it sufficiently appears that he understands what a testament means, and has a desire to make one, he may, by signs and tokens, declare his testament. One who is not deaf and dumb by nature, but being once able to hear and speak, if by some accident he loses both his hearing and REQUISITE MENTAL CAPACITY. 277 the use of his tongue, then, in case he be able to write, he may, with his own hand, write his last will and testament. And if he be not able to write, then he is in the same case with those who be both deaf and dumb by nature ; i.e., if he have understanding, he may make his testament by signs: otherwise, not at all. Such as can speak, but cannot hear, they may make their testaments as if they could both speak and hear, whether that defect comes by nature or otherwise. Such as be speechless only, and not void of hearing, if they can write, may very well make their testaments themselves, by writing. If they cannot write, they may also make their testaments by signs, so that the same sign be sufficiently known to such as then be present. 1 Wms. Ex'rs (2d Amer. ed.), 15. I would respectfully submit, whether, in this age of benevolence, I had almost said of the revival of miracles, when through the instrumentality of appropriate asylums eyes have literally been given to the blind, and ears to the deaf, the presumption ought any longer to be against the testable capacity of mutes. I would only add, once more, that a man may be capable of dis- posing by will, and yet incapable to make. a contract, or to manage his estate. To this point the authorities are numerous. I will con- tent myself to cite one only. Mr. Justice Washington, in Har- rison V. Rowan, 3 Wash. 0. C. R. 580, ante, p. 53, charged the jury, " that it was not necessary that the testator should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the business in which he is engaged, the property he means to dispose of, the persons who are the objects of his bounty, and the manner in which it is to be distributed be- tween them. It is the business of the testator to dictate the pur- poses of his mind, and of the scrivener to express them in legal form ; that it was soundness of mind, and not the state of bodily health that was to be attended to. His capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of other business ; as, for instance, to make contracts for the purchase or sale of property. For most men, at different periods of their lives, have meditated upon the subject of the dis- position of their property by will, and when called upon to have their intentions committed to writing, they find much less diffi. culty in declaring their intentions th;in they would in compre- hending business in some measure new." 278 TESTAMENTARY CAPACITY. James Potts, Senior, the testator in this case, was about ninety- years old ; was rendered almost speechless by age and the loss of his health ; was bed-ridden, and on account of his bodily infirmi- ties at least, if not mental, rendered pretty much incapable of attending to and managing his ordinary business. Perhaps there is one principle which I have failed to guard with sufficient accuracy, to wit, the distinction between oddity or caprice, as exhibited in Mason Lee, and derangement. Because if there be partial insanity only, and the will is the direct' offspring of it, it will be invalid, although the general ca- pacity be wholly unimpeached. And this partial insanity may be quo ad hoc, or quo ad hanc ; i.e., upon a particular subject, or as to a particular person. In either case, the sound and disposing mind is deficient or wanting in regard to this particular transac- tion. It is well established, both by medical and legal authorities, that a party may be both sane and insane at different times, upon the same subject, and both sane and insane at the same time on differ- ent subjects ; and it is in this last sense -that the phrase partial insanity is generally used. The case of Dew v. Clark, 1 Add. 279, is a striking illustration of that delusion, in relation to the act in question, which will defeat a will, while the testator in making it was sane in other respects and on all other subjects. The evidence showed that the deceased was a sensible, clever man, conducting himself, in the ordinary trans- actions of life and his affairs, rationally ; amassed a considerable fortune by his profession ; his friends and acquaintances, some of them medical men, never considered or even suspected that he was deranged in his mind ; yet it was shown that he labored under some strange hallucination, both as to himself and his daughter. She was proved to have been always amiable in her disposition, of superior talents and engaging manners, diligent, industrious, sub- missive and obedient, patient under affliction, dutiful and afiection- ate, modest and virtuous, moral and religious ; yet, in the deluded mind of her father, she was the most extraordinary instance of depravity, vileness, vice, crime, profligacy, artifice, disobedience, revolt, and rebellion, and quite irreclaimable, while, in regard to himself, he considered himself a pattern of fatherly tenderness and affection, though tying his daughter to a bedpost and flogging her with the most unmerciful severity, and compelling her to perform the most menial drudgery, to which even a servant would not sub- REQUISITE MENTAL CAPACITY. 279 mit. These impressions accompanied him through life, and were recorded in his will. Neither the persuasion of friends nor the sanction of I'eligion could change his mind or purpose. 8 Watts, 71, 72. Sir John Nicholl, taking a different view of both the father and the daughter from what the testator did, pronounced against the validity of the will, which decree was confirmed by the delegates ; and the Lord Chancellor, on a petition for a commission of review, refused to recommend it. Hagg. Ecc. Rep. 8. If there be, then, a total deprivation of reason, from birth or subsequent calamity, whether permanently or existing only at the time of execution, the will is a nullity, however suitable or right the terms of its bequests, and with whatever good purposes and in- tentions it may have been made ; but although the testator be not noyi compos, within the legal acceptation of the term, still, if he labored under delusion as to the special manner, he is not in that respect competent in the eye of the law. And while weakness of understanding is not of itself any objection in the law to the validity of a will or contract, still, in connection with other circumstances, imbecility of mind, whether from age or disease, or any other cause, may be relied on to show that the particular will or agreement in controversy was procured by fraud or undue in- fluence ; and less proof will be required in such case from him who alleges it. Having said all that I deem necessary as to the degree of in- telligence requisite to make a will ; having endeavored to show that neither peculiarity of character, however extravagant, not amounting to general or partial insanity, weakness of understand- ing, nor extreme old age, nor want of hearing or speech, or the capacity to transact the ordinary business of life, such as buying and selling property, will disqualify a person from making a will, — I will pass on to the only other main matter of inquiry, and that is, what degree and kind of influence, exerted over the testator in obtaining a will, is sufficient to set it aside. With respect to a will alleged to have been obtained by un- due influence, I would remark, that it is not unlawful for a person, by honest intercession and persuasion, to procure a will in favor of himself or another ; neither is it, to induce the testator, by fair and flattering speeches ; for though persuasion may be employed to induce the dispositions in a will, this does not amount to influence in the legal sense. If a wife, by her virtues, has gained such an 280 TESTAMENTARY CAPACITY. ascendancy over her husband, and so rivalled his affections that her good pleasure is a law to him, such an influence can never be a reason for impeaching a will made in her favor, even to the ex- clusion of the residue of his family. Nor would it be safe to set aside a will, on the ground of influence, importunity, or undue advantage taken of the testator by his wife, though it should be proved that she possessed a powerful influence over his mind and conduct in the general concerns of life ; but where persuasion is used with a testator on his death-bed, when even a word distracts him, it may amount to moral force and inspiring fear. 4 Greenl. 220. On this subject, as on that with regard to capacity, no precise and distinct line can be drawn. Suffice it to say, that the influ- ence exercised must be an unlawful importunity, on account of the manner or motive of its exertion, and by reason of which the tes- tator's mind was so embarrassed and restrained in its operation that he was not master of his own opinions in respect to the dis- position of his estate. In the case of the will of Edward Campion (-Eir parte Fearon, 5 Ves. 633), the court of delegates, consisting of some of the most distinguished judges and civilians in England, set the will aside, on the ground that undue influence had been exercised over the mind of the testator by his physician and house-keeper ; and Lord Roslyn, being satisfied with their decision, reported against granting a commission of review. And in Hacker v. Newborn, Styles' Rep. 427, Rolle, C. J., held, that a will executed by a man in his last sickness, by the over-importunity of his wife, and for the sake of quiet, was not valid. Perhaps we could not do better than sum up all we have to say on this topic by another quotation from Swinburne. It is good to draw water from the source rather than from the mouth of the stream. Antiquas ex- quirere fonles. " If the testator be compelled by violence, or urged by threatenings, to make his testament, that testament, being made by just fear, is ineffectual. Likewise, if he be cir- cumvented by fraud, the testament loseth its force. For, albeit honest and modest intercession and request is not prohibited, yet these fraudulent and malicious means, whereby men are secretly induced to make their testaments, are no less detestable than open force." .1 Swinb. 22. It is objected, however, in this case, that the testator was under UNDUE INFLUENCE. 281 the control of his slaves, and that this circumstance, if well au- thenticated, ought, ipso facto, to destroy the will. That while it is allowed to free white persons, whether kindred or strangers, to influence others, by proper means, to make their wills, yet that where this influence proceeds from slaves, it indicates such moral degradation as should induce the courts, from motives of public policy, to avoid their acts. As to the source whence this moral coercion comes, the law makes no discrimination, consequently we can make none. The testimony does not show that any improper intercourse existed, at the time the will was executed, or previously, between the testator and his slaves, or any of them ; but had it been otherwise, and this will had been the result of that miserable infatuation, however shocking it might be to our sense of decency and propriety, and proper subordination on the part of our negroes, still we dare not on that account impeach tlie will, unless the legislature should see fit, in its wisdom, to abridge the right of the owner to dispose of his property for this cause. The only inquiry for courts is. Was the testator, from the infirmity of age or other cause, constrained to act against his will, to do that which he was unable to refuse, by importunity or threats, or any other way by which one person acquires dominion and control over another ? If so, the validity of the will may be impeached ; and it is wholly immaterial from what quarter this undue influence which destroys free agency comes, whether from a slave or a free white person. To set aside a will because it is capricious or unreasonable, or because the tes- tator may have selected an unworthy object for the bestowal of his bounty, is to deprive him -of the most cherished of all rights ; namely, the right secured by law to dispose of his estate by will in such way as may seem good in his own eyes. The will of W. B. Farr was several times before the courts of South Carolina, and its validity contested, among other grounds, because it was obtained by undue influence exercised over the tes- tator by the executor. Dr. Thompson, and by a negro woman named Fan, and her son Henry ; and that it was obtained by threats made by the same persons. Cheves' Law and Equity Reps. 37 ; 1 Eichardson's Law Reps. 80; 1 Spears' Rep. 93. The proof showed that Pan was the paramour, and Henry the son, of the tes- tator ; that this woman had the influence over him of a white woman and a wife. He had a clock which he cursed, and said he 282 TEBTAMENTAEY CAPACITY. ■would not have bought it but for Fan ; promised to destroy a dog that killed sheep, but did not do it because she objected ; bargained for a negro, but would not buy till her pleasure was consulted ; sold a negro girl at her desire, and made titles to another one that she offered for sale as her own, and when he had made the titles, said, " he hoped she would now be satisfied ; as there was no other woman left, he hoped he would have some peace." One witness thought she had such influence that she could have had any negro sold that she pleased. At Christmas, 1835, Farr said he should not live long, and wanted to divide his property out among his relations equally.' Fan said, " What is to become of me and Henry ? " Farr said lie would give her money enough to maintain her during her life, and she might go to a free State. She replied, " Before any of the Farrs should have any of the property she would lose her life." Fan refused to let a servant come to him when called ; they quarrelled about it ; she shook her fist in his face and threatened to knock his teeth down his throat ; wit- ness heard them quarrel in the night ; heard her call Hannah, a servant, to bring her the whip and she would beat his skin off. They would get drunk together, and she was insolent to him ; told him to hush or she'd give him hell ; cursed him for a d — ned rascal ; rubbed her fist in his face and dared him to open his mouth ; called him a d — ned old palsied rascal. Testator told Dawkins that Fan had tried to kill him with a spear ; she threw it at him and stuck it in the bedpost ; Fan was drunk, and he made them make friends. Many other disgusting details were narrated on the trial, which need not be repeated. Farr was sixty-six years old when he died ; was originally a man of strong mind, but he was much enfeebled by hard drinking, and his memory was impaired by a stroke of palsy ; still he was capable of doing business. Judge Earle, in commenting upon this case, said : " This phrase of undue influence, so frequently resorted to in this country by disappointed relations to avoid wills of persons on whom, while living, they had no claims, seems to me to be a modern innovation, and is not known in the English courts. The true inquiry always is, whether there exists the animus testandi. The party therefore must be free, and under no compulsion from such threat or violence as may reasonably be supposed to move a constant man. Even in case of such constraint or fear, if when they are oyer, the tes- tator confirms the will, it is made good. Applying the general UNDUE INFLUENCE. 283 rules governing such cases to that made by the proof, it will be very difficult to find the evidence either of threat or violence, of fear or compulsion, or of excessive importunity, extorting from the feebleness of age or disease what it was unwilling to grant, yet unable to withhold." And Judge Evans, when commenting on the same will, many years afterwards, said : " Whenever the validity of a will is disputed, the natural inquiry is, whether it is voluntary, — whether it be conformable to the wishes and previously declared intention of the testator and according to the course of his affections. When the sane man, with legal solemnities, executes a will, the law pre- sumes, in the absence of proof to the contrary, that it was done voluntarily, and that it contains truly his wishes and intentions in relation to the disposition of his property. The burden of proof lies on him who alleges the existence of undue influence and its exercise in the procurement of the will. I have before said that Fan was greatly indulged, and that she had some influence over the testator, arising out of her position, can scarcely be doubted. From this arose her familiar mode of addressing him, her pre- sumptuous claim to be his wife, and her dominion over the servants and household affairs ; but beyond these the evidence furnishes no proof of influence possessed or exercised, or attempted to be ex- ercised." It is true that the jury uniformly found against the will, and that the court finally acquiesced, upon the principle that, where the case consists of facts which have been fairly submitted to the jury, with full instructions from the court, their verdict concludes the case. Still it serves to show the opinion of the distinguished judges, who repeatedly had this case under consideration, of the nature and degi*ee of influence which must be exerted over the testator, in order to invalidate his will ; and that it matters not that the imputed control is at the instance of a slave, and that slave the mistress of the deceased, provided the testator was left a free-agent. It is only necessary to advert for a moment to the brief of the testimony in the case before us, to see how immeasurably short it comes on the score of unjust control, of that which accompanied Farr's will. John Hill testified that he visited the testator some time before his death ; that soon after he arrived at the house, two female slaves, one an old and the other a young woman, vol- 284 TESTAMENTARY CAPACITY. untarily took their stand on each side of the testator, and on them he seemed to rely for direction. Potts appeared to be very stupid and incompetent to transact any business. Jesse Kensey swore that Potts' negroes did pretty much as they pleased, and his prin- cipal house-woman appeared to exercise a controlling influence over him, — she was his interpreter ; his speech was not only de- fective, but thinks there was a want both of bodily and mental strength ; lie was inclined to be fickle-minded, and not very deter- mined in carrying out his purposes ; he was kind and indulgent to his slaves, and they obeyed or disobeyed his orders pretty much as they pleased. James Stewart, another witness examined, stated that for several years before Potts died he thought him very much under the influence of his negro woman Lucy. The last visit that William Harris made to the deceased, a negro woman interpreted for him. Mrs. Jemima Slaughter did not think the testator capa- ble of making a will, from his extreme old age, want of speech and memory, and the influence the negroes appeared to exert over him ; that two of his women especially seemed to have a great control over him in all his affairs ; that she has heard him consulting with Lucy in relation to his business, — who was a lively, talkative, saucy girl, who generally said what she pleased to her master, without reproof. Cicero Lovelace, a medical practitioner of the botanic order, saw testator frequently a short time previous to his decease ; his grown negroes all appeared to exercise more or less influence over him ; on one occasion he saw Charity and Lucy put a pair of socks on the old man contrary to his wishes ; at first he resisted ; they persevered, and he finally yielded. He thinks he was pretty much in the hands of these women, who nursed him, except that he would not suffer his feet washed nor his beard shaved. Wil- liam Dougherty was several times at the house of the testator ; was unable to understand him. Once he called to pay money ; a negro woman got his note out of a chest, received the money and re- placed the paper with the cash in the chest, locking it and retaining the key. Another time he wished to exchange another paper for his, when pretty much the same ceremony took place, — the girl officiating entirely in the business. Now, when it is recollected that the main purpose of this caveat is to set aside this will on account of a bequest in it to Alonzo P. House, the grandson of the testator, who resided in the State of Alabama, and between whom and the slaves of the deceased no in- SENILE DEMENTIA. 285 timacy, much less conspiracy, is proved to exist, we see nothing in the whole report of this case to justify the suspicion that any undue influence whatever was practised in the procurement of this will, much less such improper influence as should be allowed to invalidate it. We have here adopted this extended opinion for the clear views it affords upon many of the important cases, and the great variety of circumstances under which the questions are here presented. The fact that we are here presented with one important phase of the slave life of the South, will not render it any the less interesting to considerate persons, because that institution has since fortu- nately ceased to exist in our country. The learned counsellor and the wise and discerning judge will find in that portion of the opinion the same instruction in regard to the inscrutable mysteries of the influence of mind upon mind, as in any other part of the opinion, and possibly it may be found even more instructive. We have no occasion to apologize for adopting the opinion of a judge of such remarkable boldness of speech as Judge Lumpkin, since that is not, in proper measure, any defect in a legal opinion ; and even in excess it is better than its correlative infirmity. We have had few better judges than Judge Lumpkin, whatever some may think of the good taste of some of his exclamations. The following opinion is that of a very eminent judge, and pre- sents the question of the eifect of old age upon testamentary capac- ity in a most satisfactory light. 3. Collins V. Townley, 21 New Jersey Equity Reports, 353. 1871. The mere fact that the testatrix was ninety-eight years old at the time of making her will, is no ground for presuming testamentary incapacity. Neither will undue influence be presumed, in such a case, when the will is in favor of a daughter with whom the testatrix had lived for many years ; but under these circumstances the other children have the right to require that it be clearly proved that the will was understandingly made, and that it was her testamentary act. When a contest upon the validity of a will is unreasonably protracted, the court will not award the contestants costs out of the estate, and may even decree costs against them. The facts appear in the opinion of the Chancellor — Zabbiskie, as Ordinary. The testatrix was ninety-eight years of age at the time she made the will in question. Upon an examina- 286 TESTAMENTARY CAPACITY. tion of the evidence, this appears to be the only ground for filing a caveat against the probate of her will. No unsoundness or imbe- cility of mind is shown of a kind that approaches to a defect of testamentary capacity ; nor is there any proof of any fraud, cir- cumvention, or undue influence in procuring the will. There is no ground to sustain the appeal against the admission of the will to probate. The caveator is a son of testatrix. He resided not far from his mother, and knew her situation and capacity. More than one unsuccessful attempt to procure an inquisition of lunacy against her in the last years of her life had been made and failed. Of all this he had full knowledge. The will gave the bulk of the property of testatrix to one child, and very little to her other children; yet this child was a daughter with whom she had lived for many years, and who had taken care of her before and after she ac- quired her property upon the death of her son Hugh. There may exist sufficient reasons for examining into the validity of a will made by a mother in favor of a daughter with whom she has lived for many years, especially when the testatrix is of the age of Mrs. Collins. Her other children have the right to require - that it be clearly proved that she executed the will, understanding that it was her testamentary act. When they go beyond this, and continue litigation by a protracted inquiry into the capacity of the testatrix, it is in the discretion of this court to award costs against them, or refuse any allowance of costs, as they think the conduct of the contestant may justify by the evidence in tlie case. The Orphans' Court were of opinion that sufficient reason for con- tinuing the contest did not appear, and therefore refused to allow costs. I concur in that opinion, and therefore affirm the decree in that particular also. That court refused, under the whole case as before them, to decree costs as against him. In that judgment I also concur, though with some hesitation. There was sufficient in the case to warrant his asking for the full formal proof of the will in open court ; but I think the contest was prolonged by him after he ought to have been satisfied. But as it is difficult to say at what precise point he ought to have been satisfied, the decree of the Orphans' Court is perhaps the only safe disposition to be made of this question. EEQUISITE MENTAL CAPACITY. 287 The proceedings in the Orphans' Court are in all things affirmed. The costs on the appeal and cross-appeal in this court must be paid by the respective appellants. 4. Glarh v. Fisher, 1 Paige's Reports, 171. 1828. Competency to execute a will requires the testator to be of sound and disposing mind and memory, so as to make the disposition of his property with sense and judgment, in reference to the situation and amount of such property, and to the relative claims of the different persons who are or might be the objects of his bounty. The mere opinion of witnesses upon such questions are, at the best, and in con- nection even with such facts as the witness is able to state, as the ground of such opinion, eminently unsatisfactory. Its weight depends upon the intelli- gence of the witnesses, and their capacity to form correct opinions, as well as tbeir means of information, the freedom of their minds from prejudice, and the nature of the facts testified to in support of those opinions. Incompetency for a considerable time to execute a will being established, the burden of showing its removal is thrown upon the executor. In doubtful cases, the reasonableness or not of the provisions of the will is en- titled to great consideration. If advantage is taken of the testator's weak state of mind to obtain an unjust will, which he would not freely have made, it cannot be maintained. The opinion of the court was delivered by — Walworth, Chancellor. This cause comes before this court on an appeal from a sentence and decree of the surrogate of King's County, allowing and admitting to probate an instrument pro- pounded by the respondents as the last will and testament of John Fisher, late of Brooklyn,' deceased. The two Mrs. Clarices are the nieces and next of kin of the deceased, who left a large real and personal estate. He died in May, or June, 1827, being then about eighty years of age. About four years previous to his death, and about one year before the death of his first wife, he had an apo- plectic fit, which terminated in paralysis, and continued until his death. He was confined to his bed for the four years, but was able to ride out a few times, being helped into the carriage. His speech was much impaired, but he was at times able to make him- self understood by those who were well acquainted with him. In the fall of 1824, he was married to Diana Rapelje, the respondent, 288 TESTAMENTARY CAPACITY. a sister of his first wife. The will in controversy was executed in May, 1827, shortly before his death ; and he thereby gave all his property, real and personal, to his wife, in fee ; but afterwards, in the same will, he gave one-fourth of his property, after the death of his wife, to a supposed daughter of his deceased brother, Law- rence Fisher, and the annual interest thereon for her education, and the remaining three-fourths to the heirs of Eleanor Clarke, Maria Clarke, Ann Smith, and Isaac Rapelje. The respondents were made executrix and executor, with a general power to sell. Lawrence Fisher, in fact, died without issue ; and the pretended niece was a child which his widow had stolen from the almshouse, and claimed as her own. The appellants insist that the testator was incompetent to make a will, or, if not wholly incompetent, that the same was procured by fraud and imposition, and by taking an undue advantage of his situation. Between fifty and sixty witnesses were examined to these questions, by the different parties, before the surrogate. The general principles of law in relation to the capacity of a per- son to make a will are well understood. He must be of sound and disposing mind and memory, so as to be capable of making a testamentary disposition of his property with sense and judgment, in reference to the situation and amount of such property, and to the relative claims of the different persons who are or might be the objects of his bounty. Marquis of Winchester's Case, 6 Coke's R. 23 a; Den v. Johnson, 2 South. Rep. 458. But the great difficulty which generally exists is, in applying these principles to the testi- mony in each particular case. The evidence of capacity on which the court or jury are to decide in most contested cases consists in the opinions of witnesses, sometimes with, but frequently without, the particular facts on which such opinions are founded. Such testimony is always the most unsatisfactory, and the least to be depended on. Our opinions are much more frequently founded on prejudices, or biassed by our feelings, than we are aware of. Hence it frequently happens that two witnesses, equally honest and intelligent, form opinions directly opposite to each other, founded on the same state of facts. It is for this reason that the opinions of witnesses are never received as evidence where all the facts on which such opinions are founded can be ascertained and made intelligible to the court or jury. And where the opinions of witnesses from the necessity of the case are received as evidence, DEGREE OF MENTAL CAPACITY REQUISITE. 289 the weight of testimony will not depend so much upon the number as upon the intelligence of the witnesses, and their capacity to form correct opinions, their means of information, the unprejudiced state of their minds, and the nature of tiie facts testified to, in sup- port of those opinions. Testing the case before me by these principles, it is satisfactorily established that at the commencement of the disease of John Fisher there was a general derangement or destruction of the powers of his mind, so as wholly to incapacitate him to make a will. This is proved by the testimony of his attending physicians ; of Robert Lowther, who was with him eleven months in the capacity of nurse ; of Bishop Onderdonk, who made liim pastoral visits for the purpose of administering spiritual* consolation ; of General Bo- gardus, who went to see him several times on business ; and of many others, who were in habits of intimacy with him before his sickness, and who continued to visit him until they supposed his disease incurable, and his mind irretrievably gone. In opposition to this, a few persons, of very limited capacity to judge on such matters, testify that he was as capable of doing business during the whole of his sickness as he ever was before. It being established that there was a general derangement or loss of the powers of mind for a very considerable period, some time previous to the making of the will, the weight of proof was thrown upon tlie respondents to establish the fact that such inca- pacity had ceased at the time the will was executed. Kinloch v. Palmer, 1 Const. R. S. 0. 225 ; Lessee of Hoge v. Fisher, 1 Pe- ters C. C. R. 163 ; Attorney-General v. Parnther, 3 Bro. Ch. R. 443 ; Swinburne on Wills, pt. 2, § 3 ; Turner v. Turner, 1 Lit- tell's R. 102, Jackson v. Van Duzen, 5 John. R. 159; ante, p. 28; Case of Cochrane's Will, 1 Munroe's R. 263. After the first years of his disease, very few of those persons who had known and associated with him previous to his sickness, and who alone were capable of comparing his mind in its diseased state with what it was before, visited his house. Among the witnesses who did see him during the last three years of his life there is a very great contrariety of opinion as to the situation of his mind, and even as to the state of his corporeal faculties. I think the weight of testimony is, that in the summer of 1826 his mental and corporeal powers were in a more vigorous state than they had been during the first two years of his sickness. The testimony 19 290 TESTAMENTARY CAPACITY. of Dr. Watts, in particular, shows that he could then converse intelligibly; and certainly he exhibited considerable strength of memory in relation to the papers of Lord Sterling. That circum- stance, though strongly in favor of his mental capacity at that time, is not conclusive. It frequently happens that some particu- lar circumstance has made a strong impression upon the mind of an individual, and has been thought over so often that the memory on that subject becomes in a measure mechanical ; and whenever one link in the chain of circumstances is touched, the whole subject again passes through the mind. Hence it sometimes happens in second childhood, when all traces of recent events have become completely effaced from the memory, the bare mention of some occurrence which made a strong impression upon the mind of the individual in early life will bring the whole subject distinctly to his recollection ; and he will be able to detail every circumstance with the most minute exactness. I am, therefore, not perfectly satisfied, considering the nature of the disease under which Fisher was laboring, that even at that time he was of sufficient capacity to dispose of his property by will with sense and judgment. Whatever may have been his situation in the summer of 1826, there are still stronger reasons to doubt his capacity in May, 1827, when the will was executed. He was not then in a situation to make himself understood by the person who drew it, even in reply to questions put directly to him. The will was drawn under the direction of the wife, the principal devisee ; and although she pro- fessed to converse with and to understand him, the scrivener had no means of knowing whether he assented to her propositions or not, or whether he understood what was said to him, or what busi- ness was transacting. If his mind had been once partially re- stored, there is reason to believe he was then suffering from another attack of the same disorder, and which carried him off within a few days afterwards. Besides, the will itself is unreasonable on its face, when taken in connection with the amount of his property and the situation of his relatives ; and this is always proper evi- dence to be taken into consideration in judging of the state of the testator's mind. Patterson v. Patterson, 6 Serg. & Rawle's E. 56. But if it were doubtful whether the testator's mind was so far impaired as to render him incapable of making a valid will, there cannot be a question that it was so much weakened, and rendered so imbecile by disease, as to make him an easy dupe to the arts UNDUE INFLUENCE. 291 and intrigues of tliose by whom he was surrounded. Whenever a person in that situation is induced by fraud, imposition, or undue influejice to make a testamentary disposition of liis property dif- ferently from what he would in the full possession of his faculties, the same will be set aside, upon the same principle that a court of chancery sets aside a conveyance of property obtained under like circumstances. Surrogates having exclusive jurisdiction in relation to the proof of wills of personal property, they must of necessity determine all questions of fraud, imposition, and undue influence in procuring such wills, as well as the general question relative to the capacity of the testator. Kerrich v. Bransby, 7 Bro. P. C. 437 ; Bennet V. Vade, 2 Atk. R. 324 ; Archer v. Mosse, 2 Vern. 8 ; McDowall v. Peyton, 2 Desaus. 313 ; 1 Roberts on Wills, 30. In the case of the will of Edward Campion, a court of delegates, consisting of some of the most distinguished judges and civilians in England, set the will aside, on the ground that undue influence had been exercised over the mind of the testator by his house- keeper and physician ; and Lord Rosslyn, being satisfied with their decision, reported against granting a commission of review. Ex parte Fearon, 5 Ves. 633. In Hacker v. Newborn, Styles' R. 427, Molle, C. J., held, that a will executed by a man in his last sick- ness, by the over-importunity of his wife, and for the sake of quiet, was not valid. In Deitrick v. Deitrick, 5 Serg. & Rawle's R. 207, on an issue to try the validity of a will, the person attempting to impeach it, on the ground of imbecility and imposition, was per- mitted to give evidence of the false representations of the principal devisee, as to the character of the wife of another who was equally entitled to the testator's bounty, by reason of which he was disin- herited. The same principle is recognized in Nussear v. Arnold, 18 Serg. & Rawle's R. 323. And in Patterson v. Patterson, 6 id. 56, where it was attempted to impeach a will on the ground of imbecility of mind, connected with fraudulent practices by the devisees, the party was permitted to give in evidence the situation of the testator's family connections and property, for the purpose of showing the unreasonableness and injustice of the provisions of the will. Applying the principles of these cases, and the doctrine held by the Court of Errors in Whelan v. Whelan, 3 Cowen's R. 537, to the circumstances disclosed by the testimony before the surrogate, this 292 TESTAMENTARY CAPACITY. will must be set aside, as unduly obtained by taking advantage of the situation and infirmities of this bedrid, paralytic old man, by which a different disposition was made of his property from that which would otherwise have taken place. The testimony of Robert Lowther shows that, immediately after the death of the first Mrs. Fisher, her relations commenced a system of intrigue and manage- ment for the purpose of getting the control of the person and prop- erty of the testator. For this purpose his niece, who had been in the habit of visiting him previously, was virtually excluded from the hoiise ; and means were taken to prejudice the testator against her • by representing in his presence and hearing that her visits and atten- tions to him were mercenary. They urged him to get married, as a means of restoring him to health ; and the sister of the first Mrs. Fisher was placed about him, and recommended as a suitable per- son for his wife. In the course of a few months he was induced to consent to the ceremony of a marriage, which in his situation never was or could be consummated. Having thus secured the control of his person, a wife was secured for the lunatic brother, and he was importuned to get the testator to make a will in their favor; and after the death of that brother, his widow procured from the almshouse a child which was imposed upon the testator as his niece. Although there is no direct evidence of the fact, yet from the intimacy which had existed between the widow of Law- rence Fisher and the respondent, Diana Fisher, there is reason to suspect the latter was not ignorant of the deception which was practised. The testator was then induced to execute this will, giving one-fourth of his property to the supposititious niece, and the residue to his wife for life, with power to her and the coexecutor to sell and dispose thereof as they pleased, and what was left after her death was to be equally divided among the children of iiis nieces and the descendants of two of her own relations ; thus, without any apparent cause, excluding the two Mrs. Clarkes, who were his only blood relations, from any share in his property. On either of the grounds taken by the appellants' counsel, I am satisfied the sentence and decree of the surrogate, allowing the instrument propounded as the last will and testament of John Fisher, and admitting the same to probate, was erroneous, and the same must be reversed. The foregoing opinion presents some questions of great importance in the law of wills, and discusses them with great wisdom and skill. The country has UNDUE INFLUENCE. 293 produced but one more eminent and learned equity judge than Chancellor Wal- worth, and the foregoing opinion seems to us one of the ablest and most satis- factory in the books upon the questions discussed. The manner in which the learned judge speaks of the opinion of witnesses is, no doubt, characterized largely, as might be expected, by the testimony then before him, and might possibly leave the impression upon some minds that the learned Chancellor did not esteem it of much weight in any case. But this would be an unjust Infer- ence. Almost all judges, unless controlled by some local custom, as the cases show, and as this case fairly implies, regard the opinion of intelligent witnesses, long acquainted with the testator, and free from all prejudice, as the very best and most satisfactory evidence in regard to mental capacity, when supported by satisfactory reasons drawn from the facts in the case. 5. Barrel V. Harrel, 1 Duvall's Kentucky Reports, 203. 1864. Where the dispositions of a will are grossly unequal, and there is no satisfactory explanation why they should be so, the law requires clear evidence that it was the free and deliberate offspring of a rational, self-poised, and clearly dis- posing mind. Where, in such a case, the testator was more than seventy years of age, and laboring under an inflammatory disease, which at the time rendered him coma- tose and flighty, until fully aroused from his torpor, and which terminated fatally two days after ; and there was evidence of great importunity during the period of eight years on the part of the wife to induce such a will, and the constant resistance of the testator, accompanied with the declaration that the law made the fairest disposition of the estate of deceased persons, and that he would die intestate, — the court refused to uphold the will, declaring such course the only one consistent with sound policy, and the proper vindi- cation of the testamentary power. The facts sufficiently appear in the opinion of the court by — Robertson, J. A paper purporting to be the last will of William Harrel, deceased, after probate in the County Court of Daviess, was, on an appeal to the Circuit Court, set aside by the verdict of a jury and the judgment of that court. Prom that judgment the propounders of the will appeal to this court. When he acknowledged the testamentary document, the dece- dent, about seventy years old, was confined to his bed by an inflammatory disease, which appeared very distressing, and made him frequently both " drowsy " and " flighty," and of which he died about two days after the attestation. At his death he owned the homestead tract of land, worth $10,000 ; ten slaves, valued at $4,000 ; stock worth |1,125 ; other 294 TESTAMENTARY CAPACITY. personalty, estimated at |1,673 ; and |682 cash in hand ; and there is no proof that he owed any debts. He left four children and some grandchildren, none of whom (children or grandchildren) had been advanced by him. The testamentary provisions are simple and short; and give to his widow, whom he had married not more than eight years before, and to his son James, his whole estate of every kind during her life ; remainder to said James, excepting only the slaves, which were to be equally divided between James and his brother Jonathan, sisters Hannah Humphrey and Mary Ann Patrick, and the children of a deceased sister, Lydia Beard. For such gross inequality no reason is suggested in the docu- ment itself, or by the proof on the trial. The testator had an unquestionable power to make such a will. But its apparent un- reasonableness requires satisfactory evidence that it was tiie free and deliberate offspring of a rational, self-poised, and clearly disposing mind. And all this has not, in our opinion, been shown by the testimony with sufficient assurance. No witness expressed the opinion that he had not a disposing mind, and the subscribing witnesses, and most others, testified to some facts conducing to the abstract conclusion that he had. But all of them prove other facts, conflicting, in a greater or less de- gree, with that conclusion ; and these we will summarily notice in two classes : 1st, as illustrative of incapacity ; and, 2d, as indica- tive of extraneous influence controlling his enfeebled and disturbed mind. 1. He was often in a state of stupor, and, when roused, was generally flighty ; but soon, while awake, became apparently ra- tional. He dictated the substance of the legatory provisions as written. But he became comatose while the draftsman was writ- ing, and, though soon awakened to apparent self-possession and reason, yet a watcher attended to his pulse so as to announce whether and when the pulsations should indicate an incapacitating perturbation of mind. 2. His second and surviving wife — no mother of any child of his — often teased him to make a will. These annoying impor- tunities were repeated from a short time after their marriage to a few weeks before he was struck down by the fatal sickness. He always resisted those overt and reiterated solicitations ; and, on one occasion, she said that " the old devil " would not do as she PROOF OP UNDUE INPLUENQB.- 295 wished. Prom such proof of open solicitations, there can be no doubt that secret appeals, more frequent and urgent, were con- tinued in various ways, and it is not improbable that her selfish perseverance succeeded, at last, in bowing his stubborn neck to her yoke, when feeble and helpless on his death-bed. The proof is clear that he often, for years, declared that the law made the best will, and that he would never make one. He also said, not long before his death, that he desired an equal distribution of his estate among his children ; and, not more than three weeks before his death, declared that he would never make a will. In confir- mation of that as his fixed sentiment, he, by extraordinary remon- strances, prevailed on one of his sons to die intestate. Now, what changed that settled purpose, for the first time, when he was expecting to die every hour, and was scarcely able to think deliberately or exercise a prudent volition ? The record affords DO clue to a consistent answer, unless his wife's influence, aided, perhaps, by the co-operation of his son James, finally subjected his will and changed his long-cherished purpose of intestacy and legal equality. And, considering all the facts, the presumption is strong that this was the controlling cause. In the disturbed and flitting condition of his mind, the impress of that influence and dictation might have enabled him mechanically to dictate the de- vise to his wife and son James of his whole estate, without classify- ing it or enumerating the articles. And this is rather confirmed by the proof that he did not suggest, but seemed to pretermit the ulterior provision as to the slaves, until his attention was called to that subject. Whilst, therefore, the testamentary right should be carefully guarded and faitlifully vindicated, this court should be vigilant to prevent, as far as it can, the abuse of tliat right by withholding its approving seal from a document so unnatural and so questionable as to freedom and capacity as that now under its final considera- tion. To establish it as a valid will would encourage a prostitution of the testamentary power. To reject it would increase the value of that power, and tend to frustrate improper intermeddling, and especially in extremis, to disturb the just equality of the law. In a case of such unaccountable inequality, justice and policy require clear and satisfactory proof of a free, deliberate, and dis- posing mind, before such a paper as that now before us shall be established by our judgment as a true and valid will. We cannot feel 296 • TESTAMENTARY CAPACITY. that we have that proof. On the contrary, we are strongly inclined to the deduction that the document was not the spontaneous and legitimate offspring of a self-poised, settled, and disposing mind. And this conclusion, were it more doubtful than it is, might be made preponderant by the verdict of a jury of neighbors confirmed by the judgment of the Circuit Court. Wherefore, this court adjudges that the document in question is not the will of William Harrel, and remands the case to the Circuit Court, with instructions to enter this judgment and certify it to the County Court of Daviess, to be recorded as the judgment of that court. 6. Munday v. Taylor, 7 Bush's Kentucky Reports, 491. 1870. The mere fact of the unreasonableness of the testamentary provisions is not evidence of want of testamentary capacity, where nothing is shown tending to establish either weakness of mind or undue influence ; but, in connection with other evidence of such facts, the character of the will must often have a very important bearing. But any explanation, contained either in the will or the existing facts and cir- cumstances of the case, must have its just weight in rendering reasonable any portion of the will which otherwise would not appear so. The opinion of the court by — Robertson, C. J. Thomas H. Munday, owning only personal property, bequeathed the whole of it, of the value of about 11,500, to his unmarried sister, Sarah G. Munday, without giving to his only and motherless child, Narcissa, then eleven months old, any thing ; but requesting Sarah, who had kept and nursed Narcissa from her mother's death, only a few days after her birth, to con- tinue to keep her until her womanhood or death. Narcissa, by her next friend, contested the probate of the will, but failed on an appeal to the Circuit Court, in which a verdict and judgment established its validity ; and from that judgment she appeals to this court. The only objection made to the will is its apparent unreason- ableness, which is urged by the appellant's eloquent counsel as intrinsic proof of the want of a self-poised and disposing mind, and as outweighing the uncontradicted testimony of the subscribing witnesses, — both attendant physicians, — who testified with un- UNDUE INFLUENCE. 297 hesitating confidence that the testator was clearly competent, dic- tated the provisions of the will, corrected an omission overlooked by the draftsman, heard it read as corrected, then subscribed his name to it, embracing and kissing Narcissa ; said she was that day eleven months old, and assigned as the reason for the legacy to his sister and the pretermission of his child the paucity of the bequest as compensation for the enjoined service, and the fact that the child would be entitled to her mother's estate, real, and per- haps personal. On these facts this court, whatever it may think of the prudence or natural justice of such a will, cannot reverse the judgment, unless it could decide on its face that it stultifies the testator, and this we cannot adjudge. Even the charge of an unnatural inequality and destitution of parental regard is mitigated if not repelled by the testator's ex- planations ; and though he has not expressly secured the fulfilment of tlie heavy trust confided to the legatee, yet by her renunciation or failure faithfully to perform at any time the property bequeathed for requital, might revert to the appellant. We feel constrained, therefore, to affirm the judgment on the verdict. 7. Jioss> Y, Christman, 1 Iredell's Law Reports, 209. 1840. If there is evidence of fraud and imposition in procuring the will, it is competent for the triers to consider the provisions of the same in connection with such evidence, with a view to determine the question of the probable existence of such fraud oi* imposition. But where capacity, formal execution, and volition all appear, no tribunal can pronounce against a will, because of its disapprobation, however strong, of the dispositions made by the testator. The opinion of the court was delivered by — Gaston, J. If we are to understand the answer given by the presiding judge to the inquiry of the jury, as laying down the prop- osition, that when there is any evidence of fraud or imposition in procuring the execution of an instrument as a will, the contents whereof are unknown or misrepresented to the supposed testator, the triers are not at liberty to consider the dispositions of property actually made therein, we should- feel ourselves bound to hold that 298 TESTAMENTARY CAPACITY. the jury had been misdirected. A conflict between these disposi- tions and the known testamentary intentions of the deceased ; the repugnance of these dispositions to the claims of natural affec- tion or of moral duty ; their conferring material benefits on those through whose agency the supposed will has been prepared, — these, and such as these, are circumstances fit to be considered and weighed in conducting the judgment to a proper conclusion. But it is plain, we think, that such would not be a fair construction of the answer. The instrument itself had been permitted to be read to the jury, and the counsel for the caveators allowed to comment freely upon its dispositions.' The jury had then been instructed that as the capacity of the deceased to make a will, and the formal execution of the instruhient as his will, were not questioned, the only inquiry for them was, whether the deceased knew the contents of the in- strument ; and they were directed, if they should be satisfied that he did not know the contents, to find that it was not his will. This instruction was never afterwards withdrawn, contradicted, or modified. When they returned with the inquiry, whether they were not at liberty, upon the issue submitted to them, to take into consideration the dispositions in tlie will, his Honor answered in the negative. But this negative was properly qualified and fully explained by his accompanying observations. They were told " that the will of itself proved nothing, for that however absurd and unnatural its dispositions might be, yet if from the evidence they were satisfied that the deceased knew the contents of the paper, and with that knowledge executed it as his will, intending it so to be, it was his will ; " and that it was with a view " to that question, all the evidence given in the case was submitted to them." Thus explained, it amounted to no more than what must be held to be clear law, that where capacity, formal execution, and vo- lition all appear, no tribunal can pronounce against a will, because of its disapprobation, however strong, of the dispositions made by the testator. The charge of the judge in the trial of this case in the court below could not be regarded as very satisfactory. It certainly did not express very clearly the important bearing which the provisions of the will are often allowed to have in determining the probable effect of efforts to procure an unjust will. In such cases, where the effect of appliances resorted to remain — as is more commonly the fact — in more or less uncertainty, almost nothing could be more satisfactory UNDUE INFLUENCE. 299 than a careful examination of the provisions of the -will, and a just comparison of these provisions with the sense of justice in regard to the fair and just claims upon his final bounty. It is almost the only evidence which can solve the cardi- nal question involved ; i. e., whether the attempts at undue influence really failed of their purpose, and left the testator free to act, as he might naturally have been expected to ; or, on the other hand, how far the perverted and unnatural pro- visions of the will give the most expressive assurance that such attempts accom- plished their bad purpose. It is just this point, in the trial of such cases, which the conspirators commonly find the most difficult to surmount. But for such a charge as the court below gave they would be most devoutly thankful. But the opinion of the eminent Judge Gaston is entirely satisfactory, and deserves the highest commendation. 8. Sechrest v. Edwards, 4 Metcalfe's Kentucky Reports, 163. 1862. If the witnesses and the testator all execute and attest the will at the same time, or the testator's name being written before, he acknowledge the instrument to be his will, in the presence of the witnesses, at the time of their attestation, it will be sufficient. If a will be duly executed by the testator, the law presumes he did it under- standingly. Although the testator was more than eighty-three years of age, and his mental capacity to some extent impaired by old age and physical infirmities, yet if he is capable of understanding business, and doing it prudently and sensibly, computing interest correctly without figures, and talks sensibly and rationally upon all business transactions, and manages his farm himself and all his affairs with judgment and success, he must be regarded as possessing testa- mentary capacity. Where the testator is advanced in years, and his mind and memory considerably im- paired, yet if he steadfastly resists the importunity of the expected beneficiaries under his will, until convinced that a particular course is proper, and then dis- poses of his property by will in a just and proper manner, in conformity with the provisions of a will made many years before, except as circumstances have become changed, and without any evidence being shown of extraneous influ- ence, it cannot be said the will was procured by undue influence. Lawful influence, such as arises from legitimate domestic or social relations, must be allowed to produce its natural results, even upon last wills and testaments. And there can be no presumption of its unlawful exercise, merely from the fact of its existence and possible operation upon the testator's mind ; and even where it produces the natural results of inequalities in the testamentary dis- positions, there is no ground of impeachment of the will on that account. It is only where such influence is exerted over the very act of testamentary dis- position, so as to prevent it being truly the act of the testator, that the law condemns it. 300 TESTAMENTARY CAPACITY. The facts sufficiently appear in the opinion of the court by — Peters, J. By an order of the Grant County Court, made at its December term, 1857, a paper purporting to be the last will and testament of Charles Sechrest, deceased, bearing date the third day of November, 1855, was admitted to record. From that order the present appellees appealed to the Grant Cir- cuit Court, where an issue of devisavit vel non was snbmitted to a jury who found said paper not to be the true last will and testament of said Sechrest ; and, a judgment having been rendered in said court in conformity to the finding of tiie jury, Mary Secl)rest and others, the chief beneficiaries in said paper, have appealed to this court. The case has been very fully argued by counsel ; and after hav- ing carefully examined and considered it, we will endeavor to state our conclusions upon tlie points involved witliout elaboration. It is important, first, to determine whether there is sufficient proof of the publication of the instrument, according to the forms and solemnities required by law. Sec. 5, c. 106, Rev. Stats. (2d vol. 458) provides, that " no will shall be valid, unless it is in writing, with the name of the testator subscribed thereto by himself, or by some other person in his pres- ence, and by his direction ; and, moreover, if not wholly written by the testator, the subscription shall be made, or the will acknowl- edged by him, in the presence of at least two credible witnesses, who shall subscribe the will with their names in the presence of the testator." J. J. Henderson and B. N. Carter are the subscribing witnesses to the instrument, and B. N. Carter was the draftsman. Henderson proves that he was sent for to go to the house of Mr. Charles Sechrest. Upon his arrival he was conducted into a room, where he found B. N. Carter, with some papers before him on a stand or table. In a few minutes after he entered the room Charles Sechrest came in, and Carter, taking the contested paper in his hand, handed it to him (Henderson), and said to him : Mr. Sechrest wants you to attest his will. He then asked Sechrest if it was his will. He answered, it was ; and " said that was the way he wanted his property divided." That he (Henderson) then said he must read the paper first, and Sechrest replied, that was right; and, after having read a clause or two to satisfy himself that it was a DUE EXECUTION OP WILL. 301 will, he subscribed his name to it as a witness, in the presence of Sechrest and Carter. That Carter then told Sechrest to make his mark to it, which he did, and then Carter, subscribed his name to it as a witness, in the presence of Sechrest and himself. In his cross-examination, Henderson stated that, after he had subscribed his name to the paper, " Carter made the old man's mark, and signed it himself; " but that discrepancy is not material, as the objection is made to the time when it was done, and not to the man- ner or by whom it was doine. The foregoing is all the evidence in relation to that particular point, and the question arises, Was that a sufficient publication, imder the requisitions of the statute, supra f It may be assumed that the name of Sechrest had been written to the paper before Henderson ever saw it, and certainly before he attested it ; his name is written out in full upon the paper as copied in this record, and the mark is placed between the Christian and surname. Henderson proves the mark was made after he sub- scribed it as a witness, taut does not prove the name was written afterwards ; he only proves that his name and Carter's were writ- ten after he saw it. So that Sechrest's name must have been sub- scribed to the paper before he saw it ; and, after his name had thus been subscribed to the paper, he acknowledged it to be his will, in the presence of the two witnesses, who subscribed it as such, — which was a compliance with the requisitions of the statute, — and the placing th» mark to it, whether by Sechrest or Carter, was wholly unnecessary. But even if the name of Sechrest was subscribed at the time he made his mark, or after Henderson had subscribed his name as a witness, we apprehend it would have been sufBcieut. We are not aware of any adjudication of the question since the adoption of the Revised Statutes ; but in Swift et ux. v. Wiley, 1 B. Mon. 114, the point was directly before the court, under the statute of 1797, concerning wills, the provision of which in regard to the attestation of wills is the same in import and substance as the section, supra, of the Revised Statutes ; and in that case it was held, that it was not material whether the names of the attesting witnesses, or that of the testator, shall have been first subscribed, if the witnesses were present when the testator either wrote his name, or acknowledged it as his signature ; and, being called on for that purpose, actually witnessed or attested that fact. Here the 302 TESTAMENTARY CAPACITY. witnesses were both present when Sechrest acknowledged the exe- cution of the instrument, and they attested the fact, which must be deemed sufficient. It is again contended that the judgment of the Circuit Court is right, because the proof does not sliow that the instrument was ever read to Sechrest ; that he was illiterate, and could not read it him- self, consequently he could not have known its contents, and it could not therefore be regarded as his will. It is certainly true that a testator ought to know the contents of his will, otherwise it could not be said to be his will. But it seems to us that the evi- dence of Carter relieves the case of every difficulty on this point ; for he states that he had a previous will of Mr. Sechrest, in the handwriting of Lewis Myers, by him when he did the writing ; and that Sechrest told him to write the will like that, omitting the lands, as they had been deeded, and he did so. That he would write, read to him (Seclirest), and lie would approve, — obviously meaning that, as he would write a clause, or a paragraph, he would read it to Sechrest, and he approved what was written ; and in that way the whole instrument, as we are authorized to conclude, was read to him, and he approved it. Besides, the execution of the instrument by Sechrest, with the requisite solemnities, is presumptive evidence that he knew its con- tents, and that it conforms to his intentions ; and it is incumbent upon those who seek to avoid it on the ground that it makes a dis- position of his estate, of which he at the time was not fully apprised or had no knowledge, to establish the fact aliunde, which in this case has not been done. Slianks et al. v. Christopher et al., 3 A. K. Mar. 144 ; 1 Jarm^n on Wills. It is next argued by the counsel for appellees, that the law was properly expounded to the jury in the instructions allowed by the circuit judge ; and, as the evidence was conflicting upon the issue submitted to them, this court should not disturb their verdict. What effect (if any) is to be given to the verdict of the jury, depends upon the construction to be given to § 28, c. 106, 2d vol. Rev. Stat. 466, conferring jurisdiction on this court in will cases, by which it is provided that, " A writ of error or an appeal shall lie from the County Court to the Circuit Court of the same county, and thence to the Court of Appeals, from every order admitting a will to record, or rejecting it. The Circuit Court and Court of Appeals shall try both law and fact ; but the Court of Appeals shall not DEGREE OP MENTAL CAPACITY REQUISITE. 303 hear or adjudge any matter of fact pertaining thereto, other than such as may be certified from the Circuit Court," &c. It is very clear from the^ unambiguous language of this section, that the Court of Appeals is made the trier of the facts certified from the Circuit Court, without reference to and wholly independ- ent of the finding of the jury ; and by applying the law to the facts, of which the court is made the sole trier, determine whether the testamentary paper should be admitted to probate, or be rejected ; and, having determined that matter, the only thing to be done is to have the mandate entered in the Circuit Court, with directions to the County Court to make such orders as may be proper and neces- sary to carry out the judgment of this court. This exposition of the enactment, supra, conforms to the opinion of this court in the case of Overton's Heirs v. Overton's Executor, 18 B. Mon. 61,. and to the manifest intention of the legislature. Having disposed of the foregoing preliminary points, we proceed to the consideration of the main question, which is : Had Charles Sechrest, at the date of the contested paper, sufficient mental capac- ity to make a valid disposition of his estate by will ? A-bout sixty witnesses were examined as to the capacity of Charles Sechrest ; thirty odd for the appellants ; and twenty odd for appel- lees. Tlie number is too great, therefore, to undertake a minute examination and analysis of the testimony of each witness ; but as the evidence of Carter, the draftsman of the paper, and one of the subscribing witnesses, is relied upon by appellees as sustaining their side of the issue ; and as, moreover, the part he acted and his posi- tion afforded to him a favorable opportunity to inform himself as to the true mental condition of Charles Sechrest at the time the in- strument was written, his testimony will be scrutinized with some care. This witness states, in substance, that he became slightly ac- quainted with Charles Sechrest in 1848 ; that he occasionally called at his house and saw him, but had no particular conversation or transaction with him, until he wrote the will. At that time his mind was about the same as he had seen it before ; no material change was observed. He wrote some eight or nine deeds from the old man to his children, and had a will of Mr. Sechrest before him, written by Lewis Myers, but did not recollect its contents. He had also before him plats of the different tracts of land, and drew the deeds by said plats. The deeds were for the several tracts 304 TESTAMENTARY CAPACITY. separately ; the " Germany lands " were conveyed to the three boys ; the home place was divided between his two daughters, the Mistress Lyons, and his youngest son George, That he was but little acquainted with the bid man, and could not say much about his mind. To the question asked him, whether in Ms opinion Mr. Sechrest had intellect enough, at the time, to understand the business he was engaged in, he seems to have declined giving a direct answer, but proceeded to detail what occurred at the time, which was, in substance, that he seemed to fail in his memory about some of the items, and in order to refresh his memory the witness would read from the old will, write, and read to him, and he would approve. He proved, upon cross-examination, tliat he was a dull, ignorant man ; seemed to be forgetful ; that the names of his children, and the disposition of his property, would be suggested to him, by hearing tlie witness read from the old will, and sometimes Mr. Sechrest would make suggestions himself; that he told him to write the will pretty much as the old will, which was before him, noting the lands whicli had been conveyed. He also proved that "he thought it doubtful if" the old man could have dictated the will which he wrote, without the aid of the Myers will, and his suggestions. That he wrote on slips of paper, read to him, and he would acquiesce ; the witness using the word acquiesce because (as he expressed it) that was the most ap- propriate " word to express the idea." If the witness had stated no other facts, the foregoing would perhaps have authorized the conclusion reached by appellants' counsel. But in addition to these, he stated that the boys James and Nuck applied to him twice to go down and write their deeds, and Robert Lyons applied to him once ; that he went each time he was applied to. The first time he went the old man seemed not to be in a good-humor about the business ; expressed his fears that if he made the deeds it would interfere with his will. Witness told him that his will could be written over, showing that the deeds had been made, and in a way so as not to interfere with his will. He did not, however, succeed until he made his third visit, and he was then only able to get the old man to yield by assurances that he could make the deeds, and then have a will written showing the facts, and thereby accomplish his fixed purpose of disposing of the balance of his property by will. COMMENTS ON THE TESTIMONY. 305 The Myers will (as it was called) was written by Mr. Lewis Myers, as he proves, between the years 1845 and 1849. Prom that period, until the writing of the deeds, it had been carefully pre- served by Mr. Sechrest. Prom his conversations and conduct in relation to it, as proved by Carter, we cannot doubt that he rec- ollected its provisions, and was entirely satisfied with it. By that will he had devised to his three sons, James, Robert, and Prancis, the same lands which he subsequently conveyed to them in the deeds written by Carter. He therefore manifested great unwilling- ness in any way to interfere with that will, for fear his fixed and cherished purpose would be defeated. If Carter, after visiting Mr. Sechrest three times, and learning his plans and desires in regard to the Myers will, believed that he had not then suSicient mental capacity to make a valid will, or even regarded it as a doubtful question, but, notwithstanding, prevailed upon him to change or destroy that will, and to make the deeds and the second will, by assurances that his purposes would be as certainly effectuated in that way as by preserving the former will, the part he acted in the business cannot be approved, and but little weight should be given to his statements. But if he had even proved that, at the time the instrument was published, C. Sechrest was not of sound mind, it might have been established by other sufficient evidence, as was held by this court in the matter of Alsey Howard's Will, 5 Mon. 199 ; Reed's Will, 2 B. Mon. 79. A number of the witnesses examined for appellants swore they had known. C. Sechrest long and intimately ; that they had business transactions with him, some of them just before and some very soon after the date of the contested paper ; that he, at all times when with them, understood the business he was engaged in, and did it prudently and sensibly ; that he was a money lender, both before and after said period, and employed a large capital in that way ; small sums he loaned at an interest of twelve per cent per annum, and large sums at ten per cent per annum ; that he never loaned unless at these rates, and always had his debts well secured ; that he owned a large farm where he lived, which he managed himself, and made it profitable ; that although illiterate, he could calculate interest by his head with great accuracy, and relied more upon his own calculations than he did upon the calculations of others made with figures ; that he talked sensibly and rationally upon all 20 306 TESTAMENTARY CAPACITY. business transactions, and on all other subjects upon which he conversed, and managed his farm and all his affairs with judgment and success. James Martin, a witness sworn for appellees, who had known Mr. Sechrest for seventeen or eighteen years, lived with him in 1856, and certainly had themeans of being fully informed as to the mental capacity of the old man, says, " He then " (referring to the time he lived with him in 1856) " directed what to do, when to plant and when to sow ; he managed his farm himself, by his hands and his hirelings ; his boys did not interfere with that ; he understood these things very well ; he was drowsy and dull, but when aroused he would talk sensibly." He never " knew him to talk or act foolishly." On the other side the witnesses proved, from his appearance, that Mr. Sechrest, at the date of the will, was far advanced in years. James R. Sechrest (his nephew) proved he was about eighty-three years of age at the time of his death, according to tlie information he had received from his father. All the witnesses concur in the statement that some of the physical infirmities of old age were upon him. He had in a great degree lost his action, — his hands were palsied, his sight was dimmed, and his hearing was impaired. Some of the witnesses swore that for a few years before his death, when they would meet with him, he did not recognize them, although they had been in former years well acquainted with him. Penick proved he met with the old man in 1855 or 1856, rather thought it was in August, 1856, and he did not know him, and that he " had a vacant and unmeaning stare of his eyes ; " that he had a business transaction with him in 1849, but from that time until he saw him in 1855, or 1856, he had no conversation with him. Others proved that he appeared dull and somewhat stupid, but that when aroused he understood the subjects of conversation ; and no witness on that side proved that he acted foolishly, or failed to converse with sense, except Bernard Schwerman,who stated " he saw the old man in 1 853 at his own house, when he did not know him, and he talked flighty" and John Layle, who proved that once in his presence " he talked simple." To some extent, then, it must be admitted, the evidence is con- flicting, as is almost always the case where the question of capacity is involved, growing out of the different circumstances under which the party whose state is the subject of inquiry is seen by UNDUE INFLUENCE. 307 the witnesses, and the particular standard erected by each one for himself by which to test the question. But after mature consideration of all the evidence on both sides, we are of opinion that, although the mental capacity of the testator was to some extent impaired by old age and physical infirmities, the facts decidedly preponderate in favor of his testamentary capacity at the time of the publication of the contested paper. McDauiel's Will, 2 J. J. Mar. 331; Elliott's Will, id. 340; Watson V. Watson's Heirs, 2 B. Mon. 74 ; Reed's Will, id. 79 ; 1 Jarman on Wills, 53, 54. The next and last ground relied upon to invalidate the will, is, that it was obtained by the undue influence of one or more persons, interested in having it made as it was. No witness proves that Mrs. Sechrest had any desire that either of the wills should be made. His three sons knew they were to have the " Germany lands," as they were called, and were no doubt anxious to have deeds made to them for their respective parcels by their father, and perhaps may have importuned him to make the deeds, but he had resisted them with firmness, and never yielded until he was convinced by Carter upon his third visit that it could be done without interfering with his will in other respects. For years before, it was his fixed purpose to dispose of his property by last will and testament. Some time between 1845 and 1849 he had executed a will, which he had carefully preserved ; that will was never changed or modified, until the conveyances were made for the lands to those to whom he had given them, or the larger portion of them, by the will. Carter proves expressly that, when the last will was written, no one was present but himself and the testator ; that tiiere was no interference by any one whatever ; that the former will was before him at the time, and he was directed by the testator to write the last will as it was written, " noting the lands which had been conveyed," which directions he obeyed. We do not therefore find, from any proof in this record, that either of said testamentary papers were procured by any improper influence of any kind from any source whatever, nor is it shown that the disposition of the property is diSereut in this will from the disposition made of it in the former will, except as to the land. The provisions of the former will in relation to the other property were not remembered by Carter or Myers. Lawful influence, such as arises from legitimate or social re- 808 TESTAMENTARY CAPACITY. lations, must be allowed to produce their natural results, even upon last wills and testaments. And there can be no presumption of its unlawful exercise merely from the fact that it may be known to have existed, and may to some extent have operated on the tes- tator's mind. Such influences naturally produce inequalities in testamentary dispositions ; but a will is not to be condemned on that account. It is only when such influence is exerted over the very act of devising, so as to prevent the will from being truly the act of the testator, that the law condemns it as a vicious ele- ment of the testamentary act. We are of opinion that there is no sufficient evidence in this case of the existence, or of the exercise, of an unlawful influence over the testator, to procure the execution of the will ; and, as we are also of opinion that he was at the time of its publication of sound and disposing mind and memory, it should be established as the true last will and testament of Charles Sechrest, deceased. The foregoing opinion discusses, in about equal proportions, the effect of old age and the consequent decay of the powers of body and mind, and the effect of extraneous influence upon persons in that condition, in depriving the testator of testamentary capacity and freedom. It is only in the case of testators con- siderably weakened in mental power, either by disease or old age, and its concomitant infirmities, that improper, or what the law denominates undue, nfluence is chiefly to be feared or expected. It therefore very naturally fol- lows, that senile dementia and undue influence in the procurement of wills are more commonly found together, in cases where wills are contested, than almost any other two subjects discussed in this work. We are, therefore, naturally led to consider them more or less in connection, notwithstanding we have also devoted a separate Part to the consideration of undue influence, in its far wider and more extensive bearings upon the validity of wills, than that which is con- nected with senile dementia. And very naturally we have placed many important cases discussing senile dementia in the Part devoted to undue influence. But we have also found it necessary to place some of those cases under the head of Senile Dementia, which largely discuss undue influence. The foregoing opinion presents the two questions in their connection with each other in a very per- spicuous manner. The first question always is, in cases where both these questions are raised by the contestants, in regard to the existence of testamentary capacity, provided the testator is left entirely free from all attempts at extraneous influence. For if there remain serious doubts, upon all the evidence, how far the testator possessed mental capacity to enable him to comprehend the mere matter of making his will, and there were those about him possessing the power, the motive, and disposi- tion to exert influence in giving special character to the dispositions of the will, and especially where such dispositions present such a character of unreasonable- ness or unnaturalness as to excite apprehension that the testator, when left to EFFECT OP THE CHARACTER OP THE WILL. 809 the exercise of his own free-will, would not have made them, it will be more natural and more just to attribute them to the combined effect of the want of capacity in the testator and extraneous influence. In all cases of this kind .it is natural, almost necessary, to judge of the validity of the will largely from the reasonableness of its provisions. We do not jntend to intimate that, under ordi- nary circumstances, where the testator isj in the full possession of his mental powers, and there is no satisfactory evidence of improper influence over him, that the character of the will, in the inequality of its dispositions merely, is to have any very decisive control in determining its validity. A will may, no doubt, be so extravagant and unnatural in its provisions as to convince every one at first blush that it was made in mere badinage, or else that it must have been the offspring of a diseased or perverted mind ; and in either case it could not be supported. But, within reasonable limits, we do not claim that the nature of the provisions of the will can be allowed to have any important bearing upon the court or jury in passing upon its validity. But in cases of confessed weakness of mind and decline of the mental powers in the testator, and his consequent ex- posure to undue influence, we think the naturalness and justice of the will itself should be allowed to have its proper weight in determining its validity. In the trial of a considerable number of jury cases, involving the validity of wills, we have found that, where the provisions of the instrument are clearly and unques- tionably one-sided and unnatural, and there is no satisfactory explanation why they should be so, and at the same time the testator was confessedly in a weak state of mind, and exposed to such influences as would naturally have produced such a will, it is not easy to prevail upon a jury to uphold the will against slight evidence ; and we have always felt the justice of verdicts against wills in such cases. But where the will is just and reasonable in itself, in conformity with the duty and affection of the testator, and not inconsistent with long-cherished purposes, a jury will more commonly uphold it, so long as there is any plausible ground upon which to base such a verdict ; and sometimes we have thought such a result may be expected in such cases where, to ordinary comprehension, it was not easy to conjecture upon what grounds the finding was based. We have some- times felt surprised, and almost amused, at the finding of verdicts upholding wills in such and similar cases, and doubted whether they could properly be upheld by the courts. But the more we study the subject, the more we become recon- ciled to verdicts of this character in this class of cases, and the more disposed to vindicate them. In a very large proportion of contested will cases there will be very great uncertainty, and the verdict upon their validity must, in a large proportion of this class of cases, be the result, to a considerable extent, of inference, presumption, and sometimes of conjecture even. And we think any one who had had much experience in the trial of such cases, upon a careful re- view, would feel compelled to the conclusion that the verdicts had come sur- prisingly near the highest degree of wisdom and justice. It will be seen by many of the cases reported under this head, and espe- cially by Potts V. Mouse, 6 Ga. 324, ante, p. 262, and the cases so extensively recapitulated in the opinion of the court in that case, anxJ especially by Stewart J). Lispenard, 26 Wendell, 266, that the courts formerly, and, indeed, till within a comparatively very recent date, have held that to deprive one of the right to make a will, upon the mere ground of weakness of mind, it must appear that he 310 TESTAMENTARY CAPACITY. had absolutely lost all mind and memory, and thus become a complete idiot. But Stewart V. Lispenard is now regarded as virtually overruled by Delafield v. Parish, 25 N. Y. 9, ante, p. 158, and no such doctrine as that case attempts to maintain would generally be supported by the courts at the present time. It is probably true, that where the testator retained but a flickering of reason and judgment, but still made a rational disposition of his property in all respects, the fact of doing so would stand before the jury as a controlling fact to establish the proposition that the testator did understand the material elements of the transaction of making his will ; i.e., that he understood what property he had, and the just claims of others upon his bounty, and the proper disposition to meet these exigencies. And this is the precise definition of testamentary capacity in some recent cases. Wood v. Wood, 4 Brewster (Pa.), 75; Horbach v. Denniston, 3 Pittsb. 49 ; Crolius v. Stark, 64 Barb. 112 ; Forman v. Smith, 7 Lans. 443. But it must be admitted that some of the more recent cases still adhere to the extreme views maintained in Stewart v. Lispenard, supra ; Gardner v. Lamback, 47 Ga. 133. We have no occasion further to vindicate the latitude of construction which juries are well known sometimes to adopt in will cases. But as there is more or less complaint, we venture a word in explanation. There may possibly be some ground of complaint on this head in occasional cases. No doubt juries are largely influenced in their verdicts, in all oases, by the general sense of justice, and it is proverbially difficult to bring them to fully estimate the value of merely technical views, as compared with those based upon equity and justice, in the broadest sense of these terms. But with all deductions on this score, it must be confessed that jury trials, in the main, come nearer the actual justice and truth of cases than any other mode of trial, in all that numerous class of cases depend- ing upon complicated and conflicting testimony in large masses, and with no certain guide to the accurate estimate of its essential value. In this class of cases, there is no question that courts and commissioners, referees and arbitrators, not unfrequently make sad havoc with the truth and justice of cases, and not seldom de- termine them upon grounds it were desirable not to be obliged to state. The great objection to jury trials, undoubtedly, is, that they are dilatory and expensive, and liable to extraneous influences, and therefore dangerous in the hands of unskilled courts, and especially those, if any such there be, not educated to the highest degree of conscientious sensibility in regard to the exact duty which they owe to the public administration of justice, to see that no wrong be done in their courts, so far as they have it in their power to hinder it. It has become so almost univer- sal to pinch the salaries of judges down to so low a point, that lawyers of large experience in practice, which is the great desideratum in presiding at trials before juries, cannot reasonably be expected to accept places upon the bench ; and thus those places necessarily fall into the hands of good, honest lawyers, no doubt (for the public will always, as a general thing, insist upon having their judges men of principle), but men who have had no practice at the bar, or next to none, whose learning is merely speculative, or memorized, and who are, therefore, entirely at the mercy of the bar, and, fbeing placed in this dependent position, almost as matter of course, throw themselves upon the mercy and protection of some few of the prominent members of the bar, who consequently become the special favor- ites of the court, while all others, being thereby placed in a position of antagonism towards it, naturally fall into a carping and complaining spirit and practice, EFFECTS OF DEUNKENNESS. 311 and thus render a jury trial something else than an ai'ena for the exercise of the highest powers of forensic art, eloquence, and decorum, which a jury trial always should, and always will be, in the hands of an able and impartial court ; and in that mode, and that only, can verdicts be reached which will satisfy the public and the parties. For the losing party, if fully conscious that he has had in all respects a fair and full trial, all being done to sustain his case by the court which could fairly be done, without injustice to the other party, will acquiesce in the result, as one due to the highest sense of justice and its impartial admin- istration. VIII. The Effect of Drunkenness on Testamentary Capacitt. 1. Gardner v. Gardner, 22 Wendell's Reports, 526. 1839. This was an appeal from the surrogate upon rendering the final account of an administratrix with the will annexed, and involved the question whether the decedent had understandingly destroyed a bond of 12,000, executed by the personal representative to the deceased for money borrowed, with a view to remit the debt. The questions discussed in that portion of the opinion here given have reference to the capacity of the decedent and his freedom from undue influence at the time of destroying the bond, and are pre- cisely the same as would have arisen if the debt had been forgiven by a will executed at the same time and under the same circum- stances as the bond was destroyed. " K the testator was unfit to make a codicil, he was equally unfit to forgive the debt." Where drunkenness has resulted in a confirmed derangement of the mind, inde- pendent of the immediate influence of drink, it may be properly regarded the same as general insanity produced by any other cause ; and in such case it might be proper to require proof of restoration to sanity or a lucid interval, in order to execute a valid gift or will. But mere drunken fits, however frequent or long-continued, do not deprive the person of a disposing mind, whenever he ceases to be under the influence of the stimulus, or is so far restored to his senses as to know what he is about. He may then execute a valid will or gift. The natural and reasonable influence of the position of a wife towards her hus- band, resulting from fidelity, trust, and affection, with kind acts and for- bearance, is not to be regarded as unlawful or undue, unless intentionally resorted to for the purpose of producing an unjust disposition of the husband's estate. It must amount either to deception, or else to force and coercion, in either case destroying free agency. 312 TESTAMENTARY CAPACITY. The facts sufficiently appear in the opinion of the court by — CbwEN, J. The Chancellor seems to have entertained great doubt of the testator's sanity, and, assuming that the bond was destroyed with the intent imputed, he presumed that the wife or some one else had persuaded the testator to that act, he liot being at the time of sound and disposing mind and memory, or being at least open to the assaults of undue influence. I entirely agree to adopt the test proposed by the Chancellor, — if the testator was unfit to make a codicil, he was equally unfit to forgive the debt. The proof on that subject is, that he was an intemperate man, and had been so from 1815 to 1829, some fourteen or fifteen years, though Mrs. Milnor says he was never out of his senses till 1825. His derangement at this time could not have amounted to any very serious disqualification ; for in that year he made a very judi- cious will, in which all parties acquiesce. In the course of the ensuing four years his fits of drunkenness became more frequent, his intemperance had grown into a confirmed habit, and his con- stitution was found to be gradually giving way, notwithstanding the efforts of his friends to break the habit. He was twice con- fined in the lunatic asylum, which I understand to have been among the expedients resorted to for the purpose of checking his career of drunkenness. I read of no insanity among the proofs except what arose from the excessive use of ardent spirits. I lay no stress on his being removed from the office of guardian, be- cause I think any master in chancery would report in favor of removing an intemperate man from such a place, though he were yet far short of insanity. That he had surrendered the manage- ment of his property and business to his wife was evidence either of unusual discretion on his part or of a salutary influence on hers. I cannot deny that, in the words of the Chancellor, the tes- tator was a broken-down inebriate ; nor that such a man might be entirely unqualified to make a will. Reason might have been dethroned, memory might have lost its seat, and the man have been reduced to the condition of a mere driveller; but ordina- rily this is not so. To whatever extent the constitution may be physically impaired by intemperance, the mind retains sufficient strength for the purpose of transacting common business when not clouded by actual intoxication. Cases were cited at the bar, that if general insanity be established, it will be presumed to con- EFFECTS OF DRUNKENNESS. 313 tinue, unless a lucid interval at the time of the transaction in question be clearly shown ; but does proof that a man is in the habit of often getting drunk, and has even been a drunkard for years, make out a case of general insanity within the rule ? The greatest drunkard is frequently sober, perhaps every day ; his habit is in a degree under the control of himself and his friends ; and during the few months that this man spent in the lunatic asylum, — the mad-house, as it has been called by way of em- phasis, — he was no doubt entirely sober, and therefore sane. If his unfortunate indulgence in the use of ardent spirits had re- sulted in a settled derangement of mind, independent of the im- mediate influence of drink (and if the proof comes short of this, a case of general insanity is not established), why was nothing of that kind shown or attempted to be shown at the hearing ? Why was not the family physician called ? General sanity is the natural and ordinary condition of the mind, and is to be presumed till the contrary is established. But we are not left to presumption. Mrs. Milnor says that, about a month before the bond was destroyed, she and her mother, having received word that the testator was "perfectly himself, went and brought him home from the asylum, whither he had been for the last time. He soon after told Williams to destroy the bond, and finally sent for it and destroyed it himself, being perfectly sane of mind ; in the phrase of the witness, he was entirely himself ; he was not very well, but only weak. I do not find a word of proof that after he returned home the last time his mind was unsettled, or that he had even relapsed into his accustomed indulgence. His whole conduct in making the gift, as sworn to, bears strong marks of deliberation ; and the transaction is, iu its own character, an argument in favor of sanity. If there were in truth the power of malign influence on the part of the wife, and a disposition to abuse the power, why was it not exerted in a total alteration of the will ? Why suflfer any part of the estate to pass to the respondents ? They had stood in the will for half the personal estate ever since 1825 ; the one half only having been bequeathed to the wife. Tlie destruction of the bond was the addition of only $1,000 more ; for the will already carried one half of the bond to her. What more natural, I ask, than that, in a long turn of perfect sobriety, con- fined by bodily weakness with his family, he should review the four years which liad elapsed since his will had been made, the care, 314 TESTAMENTARY CAPACITY. the anxiety, the shame which his unfortunate appetite had in the mean time inflicted on his wife ; and see the fitness of adding at least this meagre and disproportionate codicil ? Is there the least difficulty in accounting for such an act, without raising the hypoth- esis of insanity or of undue influence ? In turning over the books with a view to the form of this gift, I was struck with its similarity, in several respects, to a case wliich came before Lord Hardwiehe in 1740. Eichards v. Syms, 3 Bar- nardist. Ch. Eep. 90. There the defendant borrowed £3,000 of the complainant's father, giving a bond and mortgage. The de- fendant's mother was uneasy on account of his contracting so heavy a mortgage debt ; but the mortgagee told her in her son's presence that she need not be uneasy, as it was in his power to be kind to her son. The bond and mortgage were kept for some time by a trustee ; but the defendant procured them from him, and brought them in a box to the mortgagee's house, where the mother was, and requested him to take and keep them himself. Upon this, as it was sworn on the part of the defendant, the mortgagee put back the bond and mortgage with his hand, and said, " Take back your writings ; I freely forgive you the debt." Turning to the mother, he said, " I always told you I would be kind to your son ; now you see that I am as good as my word." But this evi- dence was contradicted on the part of the complainant, who was the mortgagee's son and heir. Lord HardwicJce held that, taking the case as made out on the part of the defendant, the gift dis- charged both the bond and mortgage. But inasmuch as the con- tradictory evidence left it doubtful whether the mortgagee did make the expressions imputed to him, his Lordship directed an issue on that question. In the case at bar, which is an appeal from a sur- rogate, I am not aware of any express statute giving the Chancellor power to award an issue, as is done by the Revised Statutes in cer- tain cases while before the surrogate or before a circuit judge in probate cases ; but the appeal is given, in the case before us, to the Court of Chancery, as such. 2 R. S. 506 (2d ed.). And the reason why the legislature were silent was probably because they knew that the Court of Chancery has the general incidental power to award an issue in all proper cases. I have no doubt of its power in the case before us, if not expressly restrained ; and I presume its jurisdiction is not, in regard to issues, narrowed any- where in the Revised Statutes. Taking the Court of Chancery to IMPOETANCE OP AN ISSUE TO THE JURY. 315 hold its ordinary power in this particular, and conceding, for the sake of the argument, that Mrs. Milnor's testimony was shaken, then, I think much the better course would have been to award an issue. The case at bar seems more strikingly to call for such a direction previous to a decision by the Chancellor, than that of Richards v. Syms, where the evidence was agreed to be contradic- tory. The Lord Chancellor would not pronounce against the gift even in such a case till the defendants' testimony had been over- ruled by the verdict of a jury. In the case at bar, I have en- deavored to show that there is, at least, very great difficulty in seeing a doubt either in respect to the form and intent of the gift, or the sanity of the donor or his freedom from undue influence. Yet the Court of Chancery has nullified the gift without even tak- ing the opinion of a jury. If, as was held by Lord Hardwiclee, in Richards v. Syms, the intent to give ought not to be negatived without an issue, such a precaution in the case before us, even if we do not go beyond an inquiry as to what the testator said, seems to me still more proper. But when we come to doubt on the question of insanity and undue influence, such a case has always been deemed peculiarly proper for the consideration of a jury. I noticed before that the gift was in the nature of a bequest. The question is of the same character as that which frequently arises on oflering a will for probate, in respect to whicli the legislature have made special provisions for an issue on appeal to the circuit judge. 2 R. S. 10, 505 (2d ed.). It is analogous to the issue of devisavit vel non, so familiarly known to the profession. Mingled, as this matter was before the auditors with the general account, and in- troduced by way of supplemental charge at an advanced stage of the hearing (though I do not mean to deny the regularity of that course in strict practice), it is easy to perceive that the hearing must have been greatly wanting in that fulness of preparation, and singleness of attention, and thorough examination peculiar to the trial of a feigned issue. May I be permitted to say again that, to my mind, there was an unaccountable paucity of proof to show insanity ? In Kettletas v. Gardner, read in evidence from 1 Paige, 488, the Master reported that Gardner was of sound mind when the report was made, tliough his bodily health was impaired and his habits of intemperance laid him open to frequent attacks of insanity. It is evident from the report that the fits of insanity spoken of were entirely w^Mwtery ; the man got drunk often, aud 316 TESTAMENTARY CAPACITY. that was the amount of his insanity. The report was made in 1829, after he had come from the asylum the last time a sober man, as Mrs. Milnor says ; nor was there a particle of evidence that he was ever drunk after that time. The amount of the Mas- ter's report is tliat he was liable to become insane. That he ever became so after he left the asylum he does not say ; and when he destroyed the bond he was, as Mrs. Milnor says, perfectly himself. She had been long acquainted with him, and could doubtless tell as a matter of fact at the time whether he was drunii or sober. It must have been a surprise to this widow to be told that her hus- band, who had been in the habit of getting drunk, could not, for that reason, make a codicil, or add to her legacy by way of donatio causa mortis, when he was perfectly sober. I feel fully authorized to believe that there was nothing in the case different from tlie ordinary alternations of an intemperate man. That his habit had at any time resulted in delirium tremens is nowhere said. Even that, the worst and commonly the most imbecile state of the drunk- ard, is often attended with turns of sobriety, sometimes for weeks. Again, I ask if there was any thing more than common drunken fits, why.wasitnot shown? Doctor Rogers had advised that lie should be confined. Why was the doctor not examined ? Mrs. Gardner had raised the issue. Her own witness had pronounced the man sober at the very moment of the gift ; and also declared that he came from the asylum on an invitation to fetch him as a cured man. If she was mistaken in her estimate of his condition, she might have been met by a cloud of witnesses : the physicians at the asylum, the keeper and liis agents, in addition to the family physician, and the neighbors who had noticed him since his return. If his faculties had become so impaired that he was too stupid for plain business when clear of drink, surely this must have been well known, and could have been easily proved. Yet all was rested on criticising the testimony of Mrs. Milnor, and the judicial removal of the man from his office of guardian because he was in- temperate. It is true that Mrs. Gardner might have called the witnesses of whom I speak ; but I do not think her counsel was warranted in doubting that her case was fully made out, and must stand till it was more seriously impeached than it liad yet been by opposing testimony. Beck, in his treatise on Medical Jurispru- dence, vol.- i. p. 376 (1st ed.), advises that "the conduct of drunkards should be particularly noticed during the intervals EFFECTS OF DRUNKENNESS. * 317 of temperance. If spirituous liquors exercise such an influence as to render us doubtful concerning the state of mind at this time, we may reasonably infer that the alienation is becoming perma- nent." Why was not such an obvious point of view resorted to ? Was it enough to talk of the mad-house ? This was evidently a mere misnomer. Doctor Rush, in treating of mental disease, calls it a sober-house, and advises that an hospital be established in every city and town in the United States for the exclusive recep- tion of hard drinkers. Diseases of the Mind, 267 (ed. of 1812). The ground taken by Rush is, that drunkards are mischievous. Swinburne says the drunkard is like a mad man during the time of his drunkenness, and cannot make a will when he is so exces- sively drunk that he is utterly deprived of the use of reason and understanding ; otherwise, " if he be not clean spent, albeit his understanding be obscured and his memory troubled." 1 Swinb. 133, 4 (ed. of 1803). Blackstone (2 Oomm. 497) says, " He is inca- pable when his senses are besotted with drunkenness." Mr. Stock, In his late treatise on the law of JVon Compotes Mentis, 46, 7, gives as the result of the authorities, that " proof of drunkenness amount- ing to insanity will invalidate a will ; but if it be shown that the testator was not under the influence of strong liquors at the time of the execution, the presumption will be in favor of the will, — a presumption strengthened or impaired, of course, by the internal evidence of the contents." What reason, I ask, had Mrs. Gardner to suppose she did not stand within the very terms of the rule after proving that her husband was perfectly sober when he destroyed the bond ? Least of all I think had she reason to expect the im- putation of undue influence, and feel herself called upon to repel any thing of that kind. There was not one particle of evidence that she had ever urged her husband on the subject ; and I must be permitted to deny, on authority, that her general influence could be received as any proof against her. In Williams v. Goude, 1 Hag. Bccl. Rep. 677, 681, 596, a like inference was sought to be made. There the husband was a tavern-keeper, and, it seems, not only drank, but had become a good deal stupefied under an attack of the apoplexy. In respect to the charge of undue influence, Sir John Nicholl remarks : " There was the gen- eral influence of an active, bustling, high-spirited wife, over a good-natured, easy husband. In consequence of his attack, it was necessary she should take a still more decided lead in the manage- 318 TESTAMENTARY CAPACITY. ment of the concerns of the house. It was necessary she should, as a kind nurse and an affectionate wife naturally would, insist on his going to bed at his regular hour, or his not indulging too freely in liquor," &c. ; adverting to other acts of salutary influence. But he adds : " I can find no trace of any unfair importunity on the part of the wife to induce him to alter his will, or do any testa- mentary act." The general influence arising from his affection for and deference to his wife, the learned judge refuses to admit as matter of suspicion. He says, in another place : " Indeed, it would be extraordinary if the influence of affection and of warm attachment is to take away the power of benefiting the object of that regard. The influence to vitiate an act must amount to force and coercion destroying free-agency ; it must not be the influence of affection and attachment ; it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a testamentary act. Further, there must be proof that the act was obtained by this coercion ; by importunity that could not be resisted ; that it was done merely for the sake of peace, so that the motive was tantamount to force and fear." Was tliere any thing of all this in Mrs. Gardner's case which it lay with her to repel ? I confess myself utterly at a loss to conjecture on what the mind can fasten itself bearing the remotest semblance of undue influence. These probate investigations were an every- day matter with Sir John Nicholl, who fixes the onus on the party charging undue influence, saying he must put his finger on the act, showing how it was wrought. In the case at bar, the auditors say Gardner was exposed to undue influence. The surrogate adds he may, perhaps, have labored under the terror of being sent back to the mad-house ; and the Cliancellor says, " I must presume the mother or some one else had persuaded the decedent to destroy the bond." Certainly he was exposed to influence, and so is every man on a bed of sickness, or in the hands of his nurse, even though she be his wife. Are we, therefore, to presume that it was exerted ? Perhaps he was afraid of being sent back. Are we, therefore, to presume that Mrs. Gardner shook his purpose by threats of incarceration ? If we proceed from exposure into the regions of conjecture, it is difficult to conceive how a great major- ity of testamentary acts are to escape the imputation of undue influence. If I could presume that Mrs. Gardner or some one else persuaded her husband to forgive her the loan, it appears to COMMENTS ON THE TESTIMONY. 319 me, with great deference, to be a perfect non sequitur. Was there fraud ? Was there terror ? Was there harrassing importunity and a compliance for the sake of peace in the dying hour 'i Stock, Non. Comp. Ment. 47, 8. Had Mrs. Gardner the least reason to suppose that her conduct was open to this harsh construction ? Why did she not seize with unbecoming eagerness on the request that she herself would destroy the bond ? A messenger is resorted to. The trustee gives up the bond. The testator is allowed time to pause and reflect. This is the proof. Is it not more natural to suppose that she had been slow and sorrowful in yielding to the severe treatment of her unhappy husband ? Is it possible I can be mistaken when I suppose that no presumption ought to arise against her because she had taken the helm from the hand of a drunken pilot, and thus saved the remnant of his fortune from shipwreck ? What would otherwise have been left for him to bequeath in favor of the respondents or anybody else ? We are not dealing with a needy and artful adventurer insinuating herself into a marriage with age and weakness for the sake of a fortune. Each had a competency, and we find the testator living at Mrs. Gardner's own house in Prince Street. Tiiey had doubtless con- tracted their union with the ordinary expectation of wealth and respectability and domestic happiness. Mrs. Gardner had lived to see all these hopes fade without any fault of hers ; and, moreover, found herself involved in the usual round of fallacious expedients to reclaim an intemperate husband. She must have been miser- able ; but her suffering for years does not appear to have subdued her affection, or led her to falter in the discharge of her duty. The husband seems to have become sensible of all this in his last sick- ness ; and I have been unable to detect any other influence as lead- ing to a destruction of the bond. He had the undoubted legal power to forgive this debt to his wife (2 Kent's Gomm. 153, 3d ed., and the cases there cited), in the form which the deposition of Mrs. Milnor represents him as having pursued. Richards v. Syms, 3 Barnardist. Ch. Rep. 90. And to my mind the proof is entirely clear, not only that the requisite form was complied with, but that it is free from the imputation of insanity or undue influence. Tlie whole, however, I think resolves itself into a question of evidence ; and I agree to the proposition of one of the counsel for 320 TESTAMENTARY CAPACITY. the respondents in his argument, that if this court should believe there was a fair conflict of evidence before the auditors, and the law will not allow an issue, their conclusion ought not to be dis- turbed. I would give it the force which we allow to a verdict on a motion for a new trial, and refuse to reverse their report, except in a case where they may have concluded against the decided weight of evidence. Such, I think, is the case at bar. But even if there was a fair conflict of evidence, as I think there was power in chancery to award an issue, it should have been done. In either view I am for a reversal of the Chancellor's decree. Should this court, however, differ with me upon the force of the evidence with regard to the destruction of the bond, then I am of opinion the decree of the Chancellor should be affirmed. The manner of introducing the charge of the two thousand dol- lars before the auditors was a mere matter of practice ; and the costs, though final, are not in this case the subject of appeal. Both rested in the discretion of the court below. Rogers v. Holly, 18 Wendell, 350, and the cases there cited ; Rowley v. Van Benthuy- sen, 16 Wendell, 369. On the question being put, Shall this decree be reversed? ttventy members of the court answered in the affirmative and three in the negative. Whereupon so much of the decree of the Chancellor as affirmed the decree of the surrogate, charging the appellant with the sum of f 2,000 loaned to her by her husband, was reversed. 2. Barrett v. Buocton, 2 Aikens' Vermont Reports, 167. 1826. In this case the general question of the effect of drunkenness is very ably and fully discussed, upon all the early decisions and the doctrines of the Continental and Civil-law writers ; and the views so ably maintained by the learned judge are so precisely the same which now obtain, that we could find nothing more to our purpose. Drunkenness, which so far obscures the mind and memory as to render, the person incapable of doing business understandingly, disqualifies one from making a valid contract, or doing any other valid act requiring judgment and discretion. But any slight degree of intoxication, caused by drink, vfhich only slightly obscures the reason, vrill not have this effect. EFFECT OP DRUNKENNESS. 321 The opinion of the court was delivered by — Prentiss, J. This is an action upon a promissory note, executed by the defendant to the plaintiff for the sum of f 1,000, being the difference agreed to be paid the plaintiff on a contract for the exchange of lands. The agreement of exchange was in writing, and the plaintiff afterwar.ds tendered to the defendant a deed, in performance of his part of the agreement,' which the defendant refused. The defendant offered evidence to prove that, at the time of executing the note and agreement, he was intoxicated, and thereby incapable of judging of the nature and consequences of the bargain. The court refused to admit the evidence, without proof that the intoxication was procured by the plaintiff. The question is, whether the evidence was admissible as a defence to the action, or, in other words, whether the defendant could be allowed to set up his intoxication to avoid the contract. This question has been already substantially decided by the court on the present circuit ; but the importance of the question, and the magnitude of the demand in this case, have led us to give it fur- ther consideration. According to Beverley's Case, 4 Co. 123, a party cannot set up intoxication in avoidance of his contract under any circumstances. Although Lord Coke admits that a drunkard, for the time of his drunkenness, is non compos mentis, yet he says, " his drunkenness sliall not extenuate his act or offence, but doth aggravate his offence, and doth not derogate from his act, as well touching his life, lands, and goods, as any thing that concerns him." He makes no distinction between criminal and civil cases, nor in- timates any qualification of his doctrine, on the ground of the drunkenness being procured by the contrivance of another who would profit by it. His doctrine is general, and without any qual- ification whatever ; and connected with it, he holds that a party shall not be allowed to stultify himself, or disable himself, on the ground of idiocy or lunacy. The latter proposition is supported, it is true, by two or three cases in the Year-Books, during the reigns of Edward III. and Henry VI. ; by Littleton, § 405, who lived in the time of Hen. VI. ; and by Stroud v. Marshall, Cro. Eliz. 398, and Cross v. Andrews, Cro. Eliz. 622. Sir William Blackstone, however, who traces the progress of this notion, as he calls it, considers it contrary to reason, and shows that such was not the ancient common law. The Eegister, it appears, contains a writ 21 322 TESTAMENTARY CAPACITT. for the alienor himself, to recover lands aliened by him during his insanity ; and Britton states, that insanity is a sufficient plea for a man to avoid his own bond. Fitzherbert also contends, " that it stands with reason that a man should show how he was visited by the act of God with infirmity, by which he lost his memory and dis- cretion for a time." Blackstone considers the rule as having been handed down from the loose cases in the times of Edw. III. and Hen. VI., founded upon the absurd reasoning that a man cannot know, in his sanity, what he did when he was non compos mentis ; and he says, later opinions, feeling the inconvenience of the rule, have, in many points, endeavored to restrain it. 2 Bl. Comm. 291. In Thompson v. Leach, 3 Mod. 301, it was held, that the deed of a man non compos mentis was not merely voidable, but was void ah initio, for want of capacity to bind himself or his property. In Yates V. Boen, 2 Stra. 1104, the defendant pleaded non est factum to debt on articles, and upon the trial, offered to give lunacy in evidence. The Chief Justice at first thought it ought not to be admitted, upon the rule in Beverley's Case, that a man shall not stultify himself; but on the authority of Smith v. Can, in 1728, where Chief Baron Pengelley, in a like case, admitted it ; and on considering the case of Thompson v. Leach, the Chief Justice suf- fered it to be given in evidence, and the plaintiff became nonsuit. The most approved elementary writers and compilers of the law refer to this case, and lay it down as settled law that lunacy may be given in evidence on the plea of non est factum by the party himself ; and it is said to have been so ruled by Lord Mansfield, in Chamberlain of London v. Evans, mentioned in note to 1 Chit. PI. 470. In this country, it has been decided in several instances that a party may take advantage of his own disability, and avoid his contract, by showing that he was insane and incapable of con- tracting. Rice V. Peet, 15 Johns. Rep. 503 ; Webster v. Woodford, 3 Day's Rep. 90. These decisions are founded in the law of nature and of justice, and go upon the plain and true ground that the contract of a party non compos mentis is absolutely void, and not binding upon him. The rule in Beverley's Case, as to lunacy, therefore, is not only opposed to the ancient common law, and numerous authorities of great weight, but to the principles of nat- ural right and justice, and cannot be recognized as law ; and it is apprehended that the case is as little to be regarded as authority in respect to intoxication, which rests essentially upon the same principle. EFFECT OP DRUNKENNESS. 823 It is laid down in BuUer's N. P. 172, and appears to have been decided by Lord Holt in Cole v. Eobins, there cited, that the de- fendant may give in evidence under the plea of non est factum^ to a bond, that he was made to sign it when he was so drunk that he did not know what he did. And in Pitt v. Smith, 3 Campb. Cas. 33, where an objection was made, to an attesting witness being asked whether the defendg,nt was not in a complete state of intox- ication when he executed the agreement. Lord Ellenborough says, " You have alleged that there was an agreement between the parties ; but there was no agreement, if the defendant was intoxicated in the manner supposed. He had not an agreeing mind. Intoxication is good evidence upon a plea of non est factum to a deed, of non con- cessit to a grant, and of non assumpsit to a promise." Chitty, Selwyn, and Phillips lay down the same doctrine ; and Judge Swift, in his Digest, says, that an agreement, signed by a man in a com- plete state of intoxication, is void. 1 Chitty PI. 470 ; Selw. N. P. 563 ; 1 Phil. Ev. 128 ; 1 Swift's Dig. 173. In these various au- thorities it is laid down generally, and without any qualification, that drunkenness is a defence, and no intimation is made of any distinction, founded on the intoxication being procured by the party claiming the benefit of the contract. It is true that, in Johnson v. Medlicott, 3 P. Wms. 130, that circumstance was con- sidered essential to entitle the party to relief in equity against his contract. Sir Joseph Jekyl held that the having been in drink was not any reason to relieve a man against his deed or agreement, unless the party was drawn into drink by the management or con- trivance of him who gained the deed. But from what is said in 1 Ponb. Eq. 62, it would not seem that the author considered this circumstance as indispensable. He says, equity will relieve, espe- cially if the drunkenness were caused by the fraud or contrivance of the other party, and he is so excessively drunk that he is utterly deprived of the use of his reason or understanding; for it can by no means be a serious and deliberate consent ; and without this, no contract can be binding by the law of nature. In Spiers v. Higgins, decided at the Rolls in 1814, and cited in 1 Mad. Ch. 304, a bill filed for a specific performance of an agreement, which was entered into with the defendant when drunk, was dismissed with costs, although the plaintiff did not contribute to make the defendant drunk. On principle, it would seem impossible to maintain that a con- 324 TESTAMENTAEY CAPACITY. tract entered into by a party when in a complete state of intoxica- tion, and deprived of the use of his reason, is binding upon him, whether he was drawn into that situation by the contrivance of the other party or not. It is an elementary principle of law, that it is of the essence of every contract that the party to be bound should consent to whatever is. stipulated, otherwise no obligation is imposed upon him. If he has not the command of his reason, he has not the power to give his assent, and is incapable of enter- ing into a contract to bind himself. Accordingly Pothier holds (vol. i. c. 1, a 4, § 1) that ebriety, when it is such as to take away the use of reason, renders the person who is in that condi- tion, while it continues, unable to contract, since it renders him incapable of assent. And it seems Heineccius and Puffendorf both consider contracts entered into under such circumstances as in- valid. By the Scotch law, also, an obligation granted by a person while he is in a state of absolute and total drunkenness, is ineffect- ual, because the grantor is incapable of consent ; but a lesser de- gree of drunkenness, which only darkens reason, is not sufficient. Ersk. Inst. 447. The author of the late excellent treatise on the principles and practice of the Court of Chancery, after reviewing the various cases in equity on the subject, and citing the Scotch law with approbation, observes : " The distinction thus taken seems reasonable ; for it never can be said that a person absolutely drunk has that freedom of mind generally esteemed necessary to a delib- erate consent to a contract ; the reasoning faculty is for a time deposed. At law it has been held that upon non est factum the defendant may give in evidence that they made him sign the bond when he was so drunk that he did not know what he did. So a will made by a drunken man is invalid. And will a court of equity be less indulgent to human frailty ? It seems to be a fraud to make a contract with a man who is so drunk as to be incapable of deliberation." 1 Mad. Ch. 302. Mr. Maddock seems to consider it as settled that, at law, complete intoxication is a defence, and that it ought to be a sufficient ground for relief in equity ; and, in- deed, it would seem difficult to come to a different conclusion. As it respects crimes and torts, sound policy forbids that intoxication should be an excuse ; for if it were, under actual or feigned intox- ication the most atrocious crimes and injuries might be committed with impunity. But in questions of mere civil concern, arising ez contractu, and affecting the rights of property merely, policy does EFFECT OP DRUNKENNESS. 325 not require that any one should derive an unjust profit from a bargain made with a person in a state of intoxication, although brought upon himself by his own fault, or that he should be a prey to the arts and circumvention of others, and be ruined, or even embarrassed, by a bargain, when thus deprived of his reason. It is a violation of moral duty to take advantage. of a man in that defenceless situation, and draw him into a contract ; and if the intoxication is such as to deprive him of the use of his reason, it cannot be very material whether it was procured by the other party, or was purely voluntary. The former circumstance would only stamp the transaction with deeper turpitude, and make it a more aggravated fraud. The evidence which was offered and re- jected at the trial in the case before us went not only to show that the defendant was so intoxicated at the time of giving the note as to be incapable of the exercise of his understanding, "but that the contract was grossly unequal and unreasonable ; and, both on principle and authority, we think the evidence was admissible, and that a new trial must be granted. The following opinion, although somewhat extended in its discussion of the questions involved, contains a very valuable commentary upon some very important and difficult questions connected with the law of wills : (1.) How far testamentary capac- ity will be affected by the use of intoxicating drinks ; (2.) The effect of the regular and full attestation clause in the will, in enabling the court to find satisfactorily the existence of all the facts set forth in it, when some of them have escaped the recollec- tion of the witnesses ; (3.) The effect, upon the validity of the will, produced by the fact that it is drawn by one in intimate relations with the testator, and such as might be naturally expected to give the draftsman a controlling influence, to some extent, over the conduct of the testator. The opinion comes, too, with great weight from one of the most eminent and trustworthy of the American judges. The weight of an opinion cannot be said, in any certain degree, to depend either upon the number of cases cited or the elab- orate disquisitions and refinements which it contains, but rather upon the carefully digested and clearly stated practical results which it produces, and how far such results are consistent with the con- duct and experience of mankind. 326 TESTAMENTARY CAPACITY. 3. Pech V. Cary, 27 New York Reports, 9, 1863. Drunkenness, to incapacitate one to execute his will, must produce, at the time of execution, a degree of excitement depriving the person of such clear men- tal perception as to be able properly to understand the transaction. Com- monly, after the effect of the stimulus subsides, he will be entirely competent to execute his will,. The character of the instrument will be some guide to the state of the testator's mind, in executing it. But in order to justify the conclusion of want of tes- tamentary capacity, it must be something more than unreasonable : it must be so violent a departure from what is just and reasonable, as not to admit of satisfactory explanation short of referring it to disordered intellect. Effect of will being drawn by one in confidential relations with testator, upon its validity, discussed. What amounts to request by testator to witnesses to subscribe will. Effect of attestation clause in regard to important facts not within the recollec- tion of the witnesses, and how far it may be allowed to supply such defect. Opinion of the court by — Denio, 0. J. The appellant is not concluded or affected by the decision of the Probate Court in Connecticut. The transmission of the title to real estate situated in this State, either by testament, by conveyance inter vivos, or by intestacy, is regulated by our own laws. Whether the judgments of the Court of Probate in Con- necticut are confined to personalty, or assume to determine upon devises of real property, they liave no effect upon the title of real estate here. Story's Confl. of Laws, §§ 474, .591; Hosford v. Nichols, 1 Paige, 220, 226. The rule is different as to personal property, the title to which is governed by the domicile of the owner : Parsons v. Lyman, 20 N. Y. 103 ; and hence the respon- dent's counsel relies upon the circumstance, incidentally dis- closed by the evidence, that the appellant is a debtor of the estate and resides in the city of New York, and that the debt is assets here ; and he refers to a provision of our statutes, authorizing the granting of letters testamentary, with the will annexed, upon the production of a will which has been proved in a foreign State or country. Laws, 1830, p. 389, § 68. But no application was made to the surrogate under this provision. The executor sought to prove the will with a view of affecting the title to the real estate. His petition did not suggest the existence of personal assets in this EFFECT OP DRUNKENNESS. 327 State, but relied, for the purpose of showing jurisdiction in the surrogate, upon the deceased having died seised of real estate in the city of New York. The case must, therefore, be examined without reference to the Connecticut probate. The first inquiry relates to the mental condition and capacity of the alleged testator. He was about thirty years of age at the time of signing the will, and had received a good English education. By the death of his father, and the remarriage of his mother, and her removal from the State while he was quite young, he seems to have been left without the influence of domestic restraint, and, having inherited a handsome property, was enabled to procure indulgences, the abuse of which rapidly undermined his habits, his health, and moral character. For some time before making the will he had become excessively addicted to the use of spirituous liquors ; had experienced several attacks of the peculiar mania arising from such habits ; had more than once attempted to put an end to his existence by means of poisonous drugs, and he eventu- ally committed suicide. Several of the witnesses stated, with some exaggeration, probably, that he was scarcely ever sober. He in- dulged, moreover, in habits of licentiousness, not less destructive certainly to his moral character. The statement of A. B. Peck- ham, one of the witnesses with whom he boarded a part of the season in which the will was executed, seems to present the fair result of the evidence upon this topic. " His habits," he said, " were generally intemperate ; when so, he was quarrelsome and dis- agreeable. When getting over his sprees, he was melancholy and low-spirited." It cannot, however, be maintained that he was either constantly intoxicated, or suffering from the resulting reaction ; for the same witness states that while at his house he was sober and straight for three or four weeks, and was then briglit and rational. To the same purpose are several letters written in 1856, by his brother, the appellant, then a merchant at Worcester, Massachusetts. He was anxious to have Eobert, the testator, become a partner in his business, by investing his money and taking part in the actual management. In one of them he says : " He is now fairly at work in the store, conducting himself as well as we could ask, and wish- ing to feel an immediate interest in the business." He had, how- ever, relapsed before the making of the will, for Mr. Morgan, the person who drew it, and was named the executor, and who had, moreover, been his guardian during his minority, had, on account 328 TESTAMENTART CAPACITY. of his bad habits and consequent imprudence, been appointed his overseer under the laws of Connecticut. The statute on that sub- ject authorizes such an appointment to be made by the selectmen of the town, where they find any person, by idleness, gaming, in- temperance, debauchery, mismanagement, or bad husbandry, likely to spend and waste his estate, to be reduced to want and to be- come chargeable to the town. The person appointed to be his overseer is to advise, direct and order him in the management of his business, and it is declared that no person under the appoint- ment of an overseer shall be capable of making a contract without his consent. This appointment, in the case of the testator, existed at the time of making the will and continued until his death, not, however, without an effort on his part to remove it, on the ground of his alleged reformation, in wliich some of his friends concurred. For instance, on the first day of February, in the year in which the will was executed, we find the appellant writing to Morgan, — in consequence, no doubt, of the testator's importunities, — that he was not just then well situated to speak correctly of his deserts, but that he had not recently heard any bad reports of him, and was inclined to think he intended to do well in future. He adds : " You must use your best judgment in the matter, and, so far as I am concerned, have my warranty in remitting the disagreeable penalty of Robert's past bad conduct." Among the exhibits there is a long letter from the testator to Morgan, written from New York, August 8th, 1858. The writer had, by the advice of his friends, engaged as a hand on board of a sea-going vessel which was about to sail from that port on a foreign voyage, and was, as he writes, immediately put to very hard labor in the preparations for setting out, which proved too severe for his badly impaired constitution, and he had left the ship. The expressed object of the letter was to obtain a supply of money to enable him to go to Savannah, where he hoped to find employment. It is not material to my purpose whether the statements of the letter were sincere, or whether its object was by plausible suggestions to procure a fresh supply of money from his overseer. It is very circumstantial, per- fectly perspicuous, and evinces a habit of thought and complete- ness and accuracy of expression, scarcely to be expected in one not accustomed to writing, and quite remarkable for a person whose general course of conduct was such as his is represented to have been. It fully corroborates the statement of several of the COMMENTS ON THE TESTIMONY. 329 ■witnesses, who represent him as possessed of more than average capacity when not under the influence of intemperance. I am quite satisfied, from a careful perusal of the voluminous testimony, of which the above is a brief outline, that the testator's mental faculties were not so far impaired as to render him incom- petent to make a will, or do any legal a6t, when not under the immediate influence of intoxication. In examining the testimony as to his condition at the precise time of signing the instrument propounded, it is necessary, in the first place, to determine whether the date afiixed to it is the true one. There is evidence as to his state, relating specifically both to the 23d of June, 1858, the date which it bears, and to the 23d of July following, which the appellant maintains to be the day on which it was actually executed. I am satisfied that it was executed on the last-mentioned day. The will commences thus : " I, Robert L. Peck, of the town of Norwich, &c., having it in contemplation to go a voyage to sea," &c. Meach, one of the attesting witnesses, swears that when he was called upon to subscribe, Morgan, the draftsman, asked him to come and witness Robert's will, stating that he was going to sea. Clapp, another attesting witness, says that Morgan, at that time, remarked that Robert was about making his will ; that he was going to sea, and wished to make his will before he went ; and Mr. Morgan himself, when asked how he came to write the instrument, answered : " I was requested by Robert L. Peck. He was calculating to go on a voyage to sea." It is thus made entirely clear that the immediate occasion of making the will was a contemplated sea voyage. The appellant, who was examined as a witness on his own behalf, testified that he resided in Worcester during that summer, and that on the 22d of July he received a dispatch from the testator to the effect that he intended to leave Norwich to go to sea the next day, and wished the witness to come and bid him good-by and see him off. That he went accordingly, arriving at Norwich in the evening, and remained there through the next day. He did not see the testator set off, but ascertained, by inquiry, that he left Norwich for New York on that day, the 23d of July ; that late in the afternoon of the same day he saw Morgan at his place of business, the Quinebaug Bank, who showed him a paper which he said was Robert's will, which he said he had written that afternoon. This witness is corroborated as to the day on which he came from 330 TESTAMENTABT CAPACITY. Worcester to Norwich by two witnesses, Bynner and Bentley, the last of whom had a memorandum of the date, made at the time. Their testimony will presently be referred to for another purpose. Clapp, the attesting witness before mentioned, could not state whether the time of the execution was June or July, but he was able to recollect that, at a later hour of the same day on which the will was signed, he saw the testator on a car of the railroad train on the way towards New York. The letters which are made exhibits confirm this view. There is a short one from Morgan to Robert, dated the 24th June, the day following that on which the will bears date. The envelope is not preserved, and it cannot be known to what place it was addressed ; but the contents are not such as would be expected if the parties had been together the preceding day, under the circumstances which existed at the making of the will. There is no allusion to any sea voyage, but tlie writer wishes a correct statement of Robert's debts, and to whom due, that he may ascertain whether they are such as ought to be paid ; he alludes to a deficiency of funds, and recommends his keeping a statement of receipts and expenses. An occasion for writing thus, or on such topics, would scarcely have arisen so soon after the parties had been together on important business, The next letter from Morgan to Robert is dated July 30, 1858, just one week after signing the will, according to the appellant's theory, and five weeks after its written date. Its contents show that the party addressed was in the city of New York, and that he was about setting off on a voyage. It remits a small sum of money, which it appears that Robert had, by a telegram, requested might be sent. There is no complaint that , Robert had been loitering in New York, or that he had not sailed as soon as was expected, which certainly would have been looked for if he had been in the city five weeks. The letter of August 8, 1858, already referred to, written to Morgan by Robert, when in New York, in which he gives the reason for having left the vessel on which he had embarked, corresponds better with the supposition that he left Norwich on the 23d of July, than on the same day in June, as it would be only sixteen days after the later date, while it would be a month and a half after the earlier. Against this proof there is only the actual insertion of the earlier date in the written instrument, and the supposition of Mr. Morgan that it was accurately stated. He does not, however, speak with any positive- EFFECTS OF DEUNKENNES8. 331 ness, and he mentions a circumstance which shows that he might easily have been mistaken. Being president and the manager of the bank, and a business man, he might be expected to be gener- ally accurate in such matters. But he says he made a journey to the West on the 1st day of July, and returned on the 20th or 2 1st. He cannot say positively whether he wrote the will before he went or after he returned, though he has an impression that it was before he set off. A person in a steady employment, and with regular habits of business, would not be likely, at a period of the month so advanced as the 23d, to date a paper in the preceding month, unless something had occurred to interrupt his xisual routine ; but should he be diverted from it, and nearly a month intervene in which he should not have the accustomed practice of his pen, I think he would be quite likely to make his first dates in the month which had gone by, and I have but little doubt that this was what occurred in the present instance, and I have none what- ever that the will was drawn and signed on the 23d July, 1858. The question has no materiality except to enable us to apply the evidence respecting the condition of the deceased at the time of the execution of the will. The next inquiry, then, is whether the alleged testator was in- toxicated at the time of signing the instrument, propounded. It is not to be understood that a will made by one who is at the time under the influence of intoxicating liquor, is, for that reason, void. Intoxication is said to be temporary insanity. The brain is, at the time, incapable of performing its proper functions ; but that species of derangement ceases when the exciting cause is removed, and sobriety brings with it a return of reason. In order to avoid a will made by an intemperate person, it must be proved that he was so excited by liquor, or so conducted himself, during the particular act, as to be, at the moment, legally disqualified from giving effect to it. Shelford on Lunacy, 276. The same learned writer says, that incapacity arising from intoxication differs from ordinary lunacy in this, that the effects of drunkenness only subsist while the cause, the excitement, visibly lasts. There is, he adds, scarcely such a thing as latent ebriety ; so that a case of incapacity from mere drunkenness, and yet the man be capable to all outward ap- pearance, can hardly arise ; " consequently, in cases of this descrip- tion, all which is required to be shown is the absence of such excitement at the time of the act done, as would vitiate it ; for, 332 TESTAMBKTABY CAPACITT. under a slight degree of excitement from liquor, the memory and understanding may be as correct as in the total absence of any exciting cause." Ibid. 304. A similar rule was laid down by Sir John Nicholl, sitting in the Prerogative Court, in the case of Ayrey V. Hill, 2 Addams, 206, where the validity of the will of an habitual drunkard was in question. After stating the difference between derangement from intoxication and ordinary lunacy, he adds : " Whether, where the excitement, in some degree, is proved to have actually subsisted at the time of the act done, it did or did not subsist in the requisite degree to vitiate the act done, must depend in each case upon a due consideration of all the circum- stances of that case itself in particular ; it belonging to a descrip^ tion of cases that admits of no definite rule." In such a case it is competent, as it is the universal practice in the Probate Courts, to examine the dispositive parts of the will, to see whether the dis- positions are extravagant and unreasonable, on the one hand, or whether, on the other, they are such as might probably be expected from one in the situation of the alleged testator. The question is not, however, whether the gifts are such as, upon the whole, we would have advised under the same circumstances, but whether there is such a violent departure from what we would consider natural, that they cannot fairly be referred to any cause other than a disordered intellect. The deceased had three brothers and two sisters, but the appellant was his only brother of the whole blood, the others being the children of his mother by a second marriage. They were minors, and resided with their parents at a place called College Hill, in Ohio. The appellant either was or had been a mer- chant at Worcester, Massachusetts, and had failed in business about the time the will was signed ; whether this had happened and was known to the deceased, at that time, is not certain. In the letter of the deceased, before mentioned, written a fortnight afterwards, he says he supposes Frederic has failed, from what is said in his last letter. It is probable that he knew enough of his circum- stances to suppose he was not solvent. The case does not disclose what relations he maintained with his mother's new family, except that he spent some time with them in 1854, nor what their pecuni- ary circumstances were, except that in a letter written by the ap- pellant to Mr. Morgan, after he had heard of the provisions of the will, he mentions their having relatives to take care of them. The deceased had loaned to the appellant $8,000, with the assent of COMMENTS ON THE TESTIMONY. 333 Morgan, a few years before, which debt the will gives to the appel- lant's daughter, if she survives her minority ; and if she dies under age, to the appellant, he to enjoy the interest during the minority. The real estate in New York, and the residue of his estate, is given to the half sisters and one of the half-brothers. The other half- brother is not mentioned in the will, but J*Iorgan says this was intentional, the testator saying that he had already done as much for him as he thought proper. What the whole value of the estate was is not stated, and all that we know of it is the mention in the will of the two buildings in New York, and a fact which appears incidentally in the correspondence, that there was a debt due from the deceased to a savings bank in New York, probably on a mort- gage on one or both of the buildings. The relations between the deceased and his elder brother appear to have been amicable, except that it is incidentally disclosed that the appellant was somewhat intolerant as to his brother's vices, and that the latter had not full confidence in the appellant's business tact, thinking, as he said, that he ought to have been a literary instead of a business man. In my judgment, there is not sufficient disclosed to show that these dispositions were extravagant or so highly unreasonable as in them- selves to create any distrust of the testator's mental capacity. They certainly were not obtained by the principal beneficiaries, or by any one in their behalf, by practising upon a weak or disordered intel- lect. They were minor children, residing at their distant home ; and, so far as appears, had no friend near the testator ; for Mr. Morgan is not shown to have even known them or their parents. The provisions of the will cannot, therefore, be relied on as any evidence of incapacity of the testator. In the further examination of the evidence, we shall have to consider what degree of confidence ought to be extended to Mr. Morgan, as the writer of the instrument, and a witness upon the trial. He had been a lawyer, and was then the president of the bank occupying a room of the building in which the will was drawn. These were not disqualifying employments. He took no interest under any of the dispositions of the instrument, unless the posi- tion of executor should be considered such. But that gave him no power over the real estate in this State, and it does not appear that there was any other property except the debt due from the appel- lant ; and he had, as before remarked, no relations with any of the devisees ; but he sustained the relation of overseer of the testator, 334 TESTAMENTARY CAPACITY. under a local statute of Connecticut, and that circumstance is strongly pressed upon us, as showing a power over him which rendered it improper that he should have any agency in framing his testamentary dispositions. If he, or any one connected with him, had taken an interest under the instrument, the circumstance would have had considerable weight ; but, in the absence of that feature, the objection does not strike me as at all serious. One of the duties of his of&ce was to advise the testator respecting contracts and dis- positions of his property inter vivos. This gave him no authority as to his testamentary dispositions ; but one who was fit to exercise the surveillance which the position actually conferred was not, prima facie, an unsuitable agent for inditing the act which should govern the succession of his estate at his death. No doubt the relationship was a confidential one, and so is that which an attorney ■or solicitor sustains towards his client ; yet one's own lawyer has always been considered the most proper person to write his will, and it is not regarded as a favorable circumstance when he is passed by and another person is employed for that purpose. But, finally, his selection for this situation, by the proper officers of the town, affords evidence that he was a man of good reputation, and one in whom confidence might be safely reposed ; and there is noth- ing in the testimony to negative this inference. Keeping in mind, then, that in order to vitiate the act the testa- tor must, at the time of executing the paper, have been under the influence of intoxicating liquor, and to such a degree as to disorder his faculties and pervert his judgment, I proceed to the examina- tion of the evidence. The persons present were Morgan, the drafts- man, and Huntington, Clapp, and Meach, the attesting witnesses. The latter were mere formal witnesses who were casually present, and were called upon only because they happened, at the time, to be in the building. They knew the testator, but were not intimately acquainted with him, and one of them knew him only by sight. No conversation of any moment, which can be recollected, occurred at the time ; and all they can say is, tliat tliey saw nothing indi- cating intoxication or a want of mental capacity. As to Morgan, the case was dififerent. He had known the testator for many years, had been his guardian while under age, and his overseer since his majority ; he knew how fatally he was given to intemperance, and had experienced not a little trouble on that account. His position made it his duty to watch over qnd protect him against the conse- COMMENTS ON THE TESTIMONY. 336 quences of this vicious propensity. It was, indeed, the only pur- pose of his appointment. Immediately prior to the formal act of authentication, they had been together to enable the testator to give his instructions relative to the provisions to be contained in the instrument, in order that Morgan might commit them to writ- ing ; moreover, as a lawyer and man of business, he was aware of the legal as well as moral impropriety of countenancing the execution of a will by a person who was in a disordered state of mind from any cause. He declares positively that he did not dis- cover that he was at all intoxicated at the time, and that if he had made such a discovery he should not have drawn the will. If the question stood upon this testimony alone, the appellant would have had no case, notwithstanding the notorious general habits of the testator. But the other and more remote testimony which has become applicable, by determining the day of execution to have been the 28d of July, is to be examined. The appellant, as has been mentioned, came from Worcester on the preceding evening, to take leave of the testator, on his setting off on a voyage, in com- pany with two persons of his acquaintance, Messrs. Bynner and Bentley. He stopped at a hotel in Norwich, and, without having seen his brother, retired to an apartment which Mr. Bentley occu- pied with him. What follows is in his own language, and is the whole of his testimony which bears upon the question : " In the night, about half-past one, I was awaked by my brother knocking at the door ; he insisted on my letting him in ; by his voice I dis- covered he was in a state of intoxication, and I objected to letting him in. I asked him where he had been. He said, upon Bean Hill to see some friends, and had been on a spree for several days, and excused, himself, saying he was on the eve of going to sea. Mr. Bentley also objected to letting him in, and he finally went away. I saw nothing of him the next day till about noon, between twelve and one o'clock ; he came into the hotel very much intoxicated, and gave himself an invitation to take dinner with me ; I held out some fifteen minutes ; kept talking with him ; he then disappeared and went into a restaurant, the other side of the street." Mr. Bentley corroborates the statement as to the knocking at the door in the night, and says he judged from his manner and conversation that he was drunk. He saw him the next day, and thinks it was about ten o'clock, but had no conversation with him, and thinks he was under the influence of liquor. Mr. Bynner, the appellant's 836 TESTAMENTARY CAPACITY. Other travelling companion, relates his observation in this language : " I saw Eobert S. Peck about nine or ten o'clock on the 22d, in the evening ; I saw him the next morning, somewhere between eight and twelve o'clock ; I saw him at the "Wauregan House (the hotel) ; he invited me to drink with him ; I saw him after, I think, at a restaurant opposite ; he was drunk both times ; I should say he looked more than usually dissipated ; when he asked me to drink with him, I told him he had enough already ; his reply was, ' I have been on a hell of a bender ; ' he then told me he should either go to sea or go to hell." Another witness, Sherman, who appears to have been employed in a saloon situated just opposite the bank, testifies that on the day in question he saw the testator several times in the morning, in the saloon. He does not speak directly of his condition at that time, but he says he also saw him between two and three o'clock the same afternoon ; that he came out of the bank to where the witness stood, at the front door of the saloon, and said he had just made his will ; that he was going to New York on the train that night, to go to sea. As to his condition, the language of the witness is : " He was very much intoxicated ; in fact, I knew of his drinking several times that day ; his intoxication was such that I noticed it." The remaining witness upon this part of the case is Easterbrook, a resident of Worcester, who was, on that day, at Nor- wich. He says he saw the testator at the hotel shortly before din- ner, which was between one and two o'clock ; talked with him some time, in the course of which he said he had been " on a spree for some days." To a direct question whether he seemed to be under the influence of liquor at that time, he answered : " He seemed to me to be in the condition of a man who had been drinking consid- erably." To a question, on cross-examination, he answered : " The impression I got from his manner and conversation was that of a man who had been drinking hard, and was getting over it ; I can- not say that I saw any thing which led me to think he did not know what he was about." This is all the testimony relating to the day on which the instrument was signed. The letter of the appellant to Morgan, of the 15th November, 1858, may be supposed to bear remotely upon the question. He mentions that he had been told by an uncle, to whom Robert had stated it that he had made his will largely in favor of " the Gary children," the respondents ; that Morgan will recollect that he had offered him the perusal of it at the bank, which must have been on the day it was executed, but EFFECTS OP THE CONTINUED USE OF STIMULANTS. 337 that he declined to read it ; and he adds : " It is very absurd, his making a will at all, without he had individual wishes to regard ; but he certainly has no riglit, other than his making a fool of him- self, to throw away any more money to follow a considerable por- tion of mine, on the Carys, who have such relatives to take care of them." I do not understand the reference to the loss of his own money to relate to an appropriation of it to the Carys, or by Robert. The meaning, I think, is, that having lost a considerable portion of his own money, it would be foolish in Robert to throw away any more, as he would do if he gave it to the Gary children. He does not suggest that Robert was in a condition to be incompetent to execute a will, though he is highly dissatisfied with the one lie had heard was made ; and though, by being at Norwich on tlie day it was executed, he would know pretty well what that condition was. Upon this evidence I do not think it can be affirmed that there is any real foundation for the position that the deceased was so disordered in his mental faculties, when the will was signed, as to be incompetent to execute it. It is not the law that a dissipated man cannot make a contract or execute a will, nor that one who is in the habit of excessive indulgence in strong drink must be wholly free from its influence when performing such acts. If fixed mental disease has supervened upon intemperate habits, the man is incompetent and irresponsible for his acts. United States v. Drew, 5 Mason C. C. 28. If he is so excited by present intoxication as not to be master of himself, his legal acts are void, though he may be responsible for his crimes. The declarations of the deceased show that he had been in a debauch five days before that on which he signed the will ; but he had recovered from its immediate effects, for he spoke of it as a matter which had passed. He con- " tinned to drink, as many persons habitually do. He is not shown to have committed any extravagance, or to have exhibited any insane conduct during that day. He did, it is true, indulge in im- proper and profane language, as coarse and intemperate men will do. The statement of Easterbrook, whose interview with him was quite proximate to tiie time of signing the will, does not present the case of a man so far disordered in mind as not to be able to execute any legal instrument. Then, the persons who were pres- ent at the very time of the act done, one of whom was, from previous knowledge and present observation, eminently competent to speak, saw nothing in him indicating a want of ordinary intelli- 22 838 TESTAMENTARY CAPACITY. gence or entire sanity. When we add that there was nothing unnatural or unreasonable in the will itself, I think we cannot pronounce against it consistently with the rules of law which govern such transactions. It remains to consider whether the instrument is shown to have been executed according to the directions of the statute of this State. That he intended to make a will which should be valid, and supposed he had done so, is evident, not only from what took place at the time, but from his subsequent declarations to the ap- pellant's witness, Sherman. While this does not prove that he had done it in a legal way, it shows that a will lias not been imposed upon him, when he did not intend to execute one. The first direc- tion of the statute was performed. He subscribed his name at the end of the will: of that there is no doubt. Then, three attesting witnesses signed their names, also, at the end of the instrument. These particulars must always appear upon the face of the paper,- and cannot be made to depend upon the recollections of any one. As to the other particulars : the seeing the signature made by the witness, or their hearing it acknowledged ; the publication or the declaration by the testator that it is his last will and testament ; and his request that they shall sign the will, — these do not require or admit of any record or written memorial, other than the attes- tation clause, and must depend upon the recollection of witnesses ; and such allowances and inferences, on account of want of memory, may be made as the justice of the case, common experience, and the rules of law permit or require. This will was written, signed, and attested in a small apartment, which was the banking-room of the Quinebaug Bank, of which Mr. Morgan was president, during the hours of business. It was capable of being separated into two rooms, by means of sliding doors, and when so separated the rear room was used for the sitting of the board of directors ; but on this occasion the doors were not drawn together, and there was but one apartment. The will was written on Mr. Morgan's table, in the rear part, the testator being present and giving instructions ; and when prepared for execution, and after it had been read by the testator, or read to him, the three witnesses were present in the front part of the room. They were Mr. Huntington, the teller of the bank, Mr. Meach, clerk of another bank in the same town, and Mr. Clapp, an employ^ of a railroad company ; the two latter being there to deposit money in the course of their business. REQUEST OP TESTATOR FOR WITNESSES TO ATTEST WILL. 339 These four persons — Morgan and the three witnesses — unite in stating that Morgan requested the witnesses to come and witness Robert's will, two of the witnesses adding that he said he was going to sea, and was about to make his will. The three witnesses accordingly came forward and signed, Morgan and Robert being together at or near the table. The only difference between them is that Mr. Huntington will not say certainly whether the request was made by Morgan or the testator, but he says it was made by one of them. The only further remark which was proved, was made by Clapp, who, as he was signing, said to the testator, in a pleasant way : " I hope you have left me a good slice." He says Robert nodded and smiled, but made no other reply. This remark of Clapp was heard and i-emembered by Morgan and Meach. As to the request, it was not actually made by the testator, but by Morgan, who had drawn and was attending in his behalf to the execution of the in- strument. He was standing or sitting by and saw the witnesses come up and affix their names to the instrument, which he had read or heard read, and which he had signed, or was about to sign. Morgan had just before stated to him that it was necessary to have three witnesses to the execution, and, as he says, an inquiry was immedi- ately made whom they should get to witness it. He does not say whether the inquiry was made by himself or by the testator, but it was evidently by one, in the presence of, and in concert with, the other. Thereupon Morgan called upon the three persons who were within hearing, to come forward and witness the will, and they came. I think they should be held to have signed at the request of the testator. The object of the statute is that an officious signing by the wit- nesses, without any privity with the testator, should not be recog- nized as sufficient. Here, the agency of Morgan being established and known, the understanding of the witnesses, that they came forward and signed because the testator desired thorn to do so, and the understanding of the testator that they came and signed at his instance, was perfect, and the privity which was the purpose of the statute was secured. In Rutherford v. Rutherford, 1 Denio, 38, where the proof of a will became material in an action of ejectment, it was assumed that the jury might have found a sufficient request to one of the witnesses, where it was made by the draftsman of the will, in the presence of the testator ; but a new trial was ordered on another ground. In Coffin v. Coffin, it was objected that one of the witnesses signed without the request of the testator. The 340 TESTAMENTARY CAPACITY. facts were, that the two witnesses were called into the house and to the room where the will had been prepared for execution, not by the testator, but by. a person acting for him. One of the wit- nesses inquired of the testator if he wished him to sign or witness the paper as his will, and he answered in the affirmative, and both witnesses then signed. This was held to be a sufficient request to both. In the opinion of the court, by the Chief Judge {Comstoch) it is said : " The statute, it, is true, declares that each witness must sign at such request. But the manner and form in which the request must be made, and the evidence by which it must be proved, are not prescribed. We apprehend it is clear that no pre- cise form of words, addressed to each of the witnesses, at the very time of attestation, is required." In Nelson v. McGiffert, 3 Barb. Ch. 168, there were three attesting witnesses, and two of them were unable to swear whether it was the testator or his son-in-law, McGiffert (who was present, and between whom and the testator " there seemed to be a perfect understanding on the subject "), that made the request to them to sign, one of them having a vague recollection that it was McGiffert. The will was held duly proved. The Chancellor remarked : " Not only the witnesses, but the testa- tor himself, must have understood that they were witnessing the ex- ecution of the will, in conformity with his desire and wish, although he may not have said in terms, ' I request you and each of you to subscribe your names to this my will.' If such a formal request was necessary to be proved in all cases, and the witnesses were required to recollect the fact so as to be able to swear to it after any considerable lapse of time, not one will in ten would be adjudged to be valid." The next inquiry is, whether the testator declared the instru- ment to be his last will and testament, in the presence of the witnesses. This is a distinct and different thing from their witness- ing the signature, or ^hearing an acknowledgment of his having signed it ; and the want of a compliance with the statute in this par- ticular would be fatal. It is material to this point that the attesta- tion clause states explicitly that the instrument was " published and pronounced " by the testator " as and for his last will and testament." One of the witnesses, Huntington, was asked whether he " cast his eye " over the attestation clause, and the answer was, " I cannot remember wliether I did or not, but I usually do in such cases, and, therefore, think I did." Clapp said he was con- scious that there was writing in the usual place of the attestation PUBLICATION OP WILL BY TESTATOR. 341 clause, but he did not read it ; and Meach also says he did not read it. As to any thing further being said beyond the request of Mr. Morgan that they should come to witness Eobert's will, Olapp says that, when he had come up to the table, and they were all very near each other, Mr. Morgan remarked that Robert was about making his will ; that he was going to sea, and wished to make his will before he went, and wished me to witness it. He says that Robert said nothing. Subsequently he changed the expression by saying that Robert made no remark to him to his recollection. To a direct question whether he could undertake to state, after so long a time, all that was said or done on that occasion, he replied, " Certainly not." In Huntington's examination, he was asked : " Did you know what it (the instrument) was when you signed it?" Answer: "I was told it was Robert's will." "State, if you recollect, who told you it was Robert's will." Answer : " I cannot recollect." Again : " Did Robert state to you that the in- strument to which you did affix your signature was his last will and testament ? " Answer : " I cannot say whether he did or not." Meach undertakes to say that Robert did not say any thing during the interview ; but it will be perceived, when we come to the point of the testator's signing or acknowledging his signa- ture, that his memory is far from distinct as to what did take place. It should be mentioned tliat he is not positive whether the testator did or did not make some remark to Clapp's observation about something being left him. He says, " Robert said nothing that I recollect." The testimony was taken in the autumn of 1860, considerably more than two years after the transaction to which it relates. The point whether it was, in truth, the will of Peck, the testator, was not then a matter of the least doubt or uncertainty, for each of them fully undei'stood that it was, and acted upon that under- standing, and the only point now is, whether they learned it wholly from Mr. Morgan, or from him and the testator. I think the experience of every one will teach him that upon such a ques- tion, presented under such circumstances, mere memory is not greatly to be relied on. If we add to this the fact just mentioned, that they each certified under their hands that he did declare the paper to be his last will, it would not be safe to hold that the proper publication was not made, whether we are ready to admit that the declaration of the person who drew the instrument as to 342 TESTAMENTARY CAPACITY. its character, in the presence and hearing of the testator, and being then employed in the business for him, would be sufficient or not. Some cases which will be referred to under the remaining head will further explain my views upon this point. We are to determine, lastly, whether the signature which the tes- tator made to this instrument was made in the presence of these witnesses, or was acknowledged by him in their presence. We have seen that they all signed the attestation clause, which declares that it was signed and sealed in their presence. In the next place, they came to the table to witness his will, and went away sup- posing they had done so. The draftsman of the will, who was attending to its execution, also considered it to have been duly witnessed and attested, and the testator left the town, with a view to sail for foreign parts, under the same firm impression. It would be remarkable, and quite contrary to common experience and observation, if it should appear that, after all, nothing of the sort ■ had been done, and that the prominent and only material thing, to which all their actions tended, had been omitted. The case must be strong, indeed, to justify such a conclusion. But we must look at the testimony. That the witnesses all came up to the table together, and that they and Mr. Morgan were there at the same time and for a sufficient period, is clearly proved. That the testa- tor actually signed the will, at or about that time, is undeniable. Morgan swears that he was in the act of signing his name when he called the young men to come in. " Whether he had risen from his seat before they came in, I cannot say." It was only a few steps — from ten to fifteen feet — from the table to the place where they were standing when called. Clapp says, when he came up the will was lying on the table, and the testator was standing quite near him. It was at this instant that Morgan requested him to witness the will. He says he did not see him sign the will, and that he made no remark to him, to his recollection. Huntington, to the direct question whether he saw Robert sign his name, answered, " I cannot say." To the question whether Robert made any remark at this time, he could not say. Whether he was sitting or standing, when the witness came to the table, he could not tell. To the question put to Meach, " Did you see Robert sign the paper ? " he answered, " I think not." To test his recollection, apparently, he was asked, " Who, if any one, did you see sign the paper besides yourself? " and he answered, " I cannot remember FORMAL EXECUTION OP WILL. 343 of seeing any of the others sign it, although Mr. Clapp walked up to the table at the same time I did." Now, the names of the three witnesses appear to be signed under each other in this order: Clapp first, then Huntington, and, lastly, this witness, Meach, himself. As it was all done in the briefest period, and without, apparently, any interval, it is not to be credited that he did not see his co-witnesses sign. He was further asked : " Did you see Robert's name to the paper at all? " Answer : " I don't remember seeing it at all." Yet that name was certainly there, and a very short distance above his own signature, and he must have seen it, unless he took pains to avoid doing so. I cannot bring myself to entertain a serious doubt that the paper was actually signed in the presence of all three witnesses. It is very true that the proponent holds the affirmative in showing that the prescriptions of the statute were complied witli ; but this may be inferred from circumstances, without any direct testimony, or by the evidence of one witness against that of one or more of the others. In the Matter of the Will of Eliza Ware, 25 N. Y. 425, in note, we held a will entitled to probate where one of tlie two witnesses positively denied the existence of two of the required facts ; and cases are referred to in the opinion where wills have been established contrary to the testimony of all the witnesses. So in the case of The Trustees of the Auburn Theological Seminary V, Callioun, at December term (^supra), a will was upheld against the evidence of one of the two witnesses. Orser v. Orser, 24 N. Y. 51, is a case where the only surviving witness denied the publication and the request to sign ; and we granted a new trial, the verdict being against the will, because the circumstances, from which a due exe- cution might be inferred, had not been properly left to the jury. The new British Statute of Wills, passed in 1837, substantially like our Revised Statutes, declares that every will shall be signed at the end or foot thereof by the testator, or some other person in his presence and by his direction, and that " such signature shall be made or acknowledged in the presence of two or more witnesses ; and such witnesses shall subscribe the will in the presence of the testator." 2 Jarm. on Wills, App. 758. The obligation to sign in the presence of the witnesses, or to acknowledge the signature before them, is equally stringent as in the Revised Statutes. The cases in the ecclesiastical courts, upon this statute, though not authority with us, are nevertheless entitled to consideration, as the 344 TESTAMENTARY CAPACITY. judgments of enlightened and conservative tribunals upon tlie same written language which we are considering ; and these cases are very strong. In the case of Mary Warden, 2 Curt. 334, the testatrix had signed the will before the witnesses came into the room. They came in consequence of having been sent for by her. The person who had drawn the will produced it, and told the testa- trix that the witnesses had come, to which she replied, " I am very glad of it, thank God ; " whereupon the witnesses signed their names in the presence of the deceased. The court were of the opin- ion that, under the circumstances, the signature was sufficiently acknowledged by the testatrix under the act of Parliament of 1837. In Gove v. Gawen, 3 Curt. 151, the will purported to have been executed in the presence of two witnesses. One of them swore to a perfect execution, soon after it took place ; but the other, who was examined two and a half years afterwards, positively denied that -the testator signed it in his presence, and there was no attempt to prove an acknowledgment of the signature. Probate was decreed. Among other remarks. Sir JI. Jenner Fust said, " that it must be evident that it was a matter of most serious consideration if the rights of parties are to depend upon the rec- ollection of witnesses at any distant period of time." The same learned judge determined the case of Gaze v. Gaze, id. 451. The deceased produced the will to the witnesses already signed and sealed, and either pointed out the places where they should sign, or said, " put your names below mine." They signed accordingly. This was held a sufficient acknowledgment of his signature ; the judge remarking, " I think it would be hypercriticism to say there has not been a sufficient compliance with the words of the act." In another case — Blake v. Knight — there were three witnesses who had signed the attestation clause. Two of them swore that the testator did not sign or acknowledge the signature in their presence, and the other could not say whether he did or not ; but the deceased had been a lawyer ; the witnesses were all present and signed together ; and there were circumstances rendering a due exe- cution highly probable. The will was pronounced for. The principle considered established by the reporter is this : " Positive affirmative evidence by the subscribing witness of the fact of signing or acknowl- edging the signature of a testator in their presence is not absolutely essential to the validity of a will. The court may presume due execution by the testator under the circumstances. Ibid. 547. In EFFECTS OP THE USE OP STIMULANTS. 345 Cooper V. Boc'kett, the witnesses swore tliat the testator had not signed when they subscribed the will, but did so afterwards. It was considered that this would not be a good execution if the facts were so ; but it was thought the witnesses had mistaken the order of sign- ing, and the will was established against their testimopy. Ibid. 648. I am satisfied that the doctrine established by these cases and those in this court is sound, and consonant with the spirit of the statute. A different rule, and one which should require tlae wit- nesses always to remember and be able to state affirmatively the several matters required to be done, would render wills the most uncertain of all legal instruments. I think, too, that the doctrine is applicable to the decision of this case, and that the judgment of the Supreme Court ought to be affirmed. Such inordinate interest is felt upon the subject, and such extreme measures are being resorted to in order to prevent and punish all acts tending to the use of stimulants, that it seemed more excusable to give some account of the law upon that subject, so far as testamentary capacity is affected by drunkenness. We have no need and no purpose of discussing any social or political questions connected with the use of stimulants, whether alcoholic or narcotic ; our only concern being with the effect of the use of such stimulants, either temporarily or permanently, upon the mind and memory. It is indeed supposable, judging from the progress of opinion in the past, that the public mind might be educated up to a point where legislation might interfere to deny the ■ competency of those who used stimulants of any kind, in certain degrees of frequency or quantity, to man- age their own business concerns, and thus place them under guardianship as non compotes mentis, thereby denying them, presumptively, testamentary capacity. But there is at present no rage in that direction, the drunkards being viewed rather in the light of unfortunates than criminals. That being the case, we have no occasion to consider the nature and effect of reforms in this direction. Drunkenness may very justly be called a temporary madness, and, while the fit is on, as really a disqualification for making a will as any other madness. But from the cause and the nature of the malady, it ceases with the exhaustion of the stimulus, and leaves the person, if not quite as vigorous and clear-headed, cer- tainly not incapable of comprehending the nature of testamentary dispositions, and equally capable of making them judiciously as any other person who may have suffered some abatement of mental vigor from other causes. Mental excite- ment from any cause, no doubt, weakens to some extent the vigor and coolness of the mind for a considerable period after the excitement is removed. And such excitement, when often repeated and long continued, may slide into permanent mental derangement and organic disease, so as completely to overcome the healthy action of the mind, and render the person wholly incapable of executing a valid testament. And the same is equally true of the effects of repeated and long-continued intoxication from drink. But until we reach this extreme conse- quence of mental excitement, from whatever cause, and so long as it remains under control, and by reserve may be seemingly wholly removed, the subject of 346 TESTAMENTARY CAPACITY. it is not disqualified from executing a valid testament or contract. Herbert v. Wiun, 2i La. Ann. 385. We may conclude, therefore, that until the stimulus of drink has proceeded so far as to dethrone the reason and judgment, and also after the immediate effects of the stimulus have become exhausted, it will afford no ground for denying the existence of testamentary capacity. In the inter- mediate period, while the powers of the mind are completely obscured, as in the case of one being what is called " dead drunk," or so nearly so that he is inca- pable of exercising memory or reason in a cool and quiet manner, he will be regarded as incapable of then executing a will. In short, whenever the person, by drink, is deprived of that degree of mental capacity required in all other cases to execute a will, he will be equally incapable of doing such an act in a legal manner as if he had been deprived of the use of his mind in any other way. DELIRIUM OP DISEASE. We have not, after going so fully, in the foregoing opinions and notes, into the law of testamentary capacity, as affected by drunk- ennness and the intoxication caused by stimulants, deemed it needful or expedient to occupy any space upon the specific effect of the delirium of disease upon the capacity to make a valid will. The subjects are so nearly identical, that almost all wiiich has been said of the intoxication caused by the use of stimulants upon the mental powers will apply with equal force to the delirium caused by febrile and other diseases. No doubt the operation of delirium from disease is somewhat more various upon different minds than are the effects of intoxication caused by the use of stimulants. But there is almost an infinite variety in the operation of diffusible stimulants upon different persons. With some it produces taciturnity, and with others, extreme garrulity. Some men, long before they lose in any marked degree the free use of their powers of locomotion, become simpering and kindly, to such a degree as to produce an- noyance, if not disgust ; while others become so boisterous and pugnacious under the effects of stimulus, as to be positively dan- gerous, and really require restraint quite as much as the raving maniac. Similar variations will be found in the nature and effects of the delirium of disease upon the mind and memory of different persons, and even of the same person at different times. But ir all cases of delirium, whether produced by disease or stimulants or by the two combined, which very often occurs, the effect upoi testamentary capacity will be judged of by the degree of menta obscuration produced, and whether it deprives the person of th natural exercise of the functions of the mind and memory to sucl LUCID INTERVALS. 347 a degree that he cannot be said fully to be in his right mind, or to know what he is about. And there is another feature of similarity, or identity, between the delirium of disease and that produced by stimulants, that in both cases the duration is limited by the con- tinued operation of the disturbing cause, which is always of com- paratively short duration in either case, but more especially in the case of the intoxication of drink. IX. Lucid Intervals. This subject is one of great importance and difficulty, as con- nected with questions of testamentary capacity, and frequently comes to be discussed before courts and juries. And although some of the preceding cases have involved the question in connec- tion with others, and we have thus been led into the incidental consideration and partial discussion of some of the points involved in the general subject, we deem it expedient to give some few cases more especially devoted to this particular subject. We have liad occasion before to allude to the high character and practical nature of the opinions of Mr. Surrogate Bradford, and no apology will be required for the length of the following opinion. 1. Gomhault v. ITie Public Administrator, 4 Bradford's Surrogate Reports in the Gity of New York, 226. 1857. Testamentary dispositions made near the time of undoubted mental perversion should be inspected with the closest scrutiny, especially where the progress of the disease was slow and insidious. Wills made during lucid intervals are valid ; but the proof of intelligent action must be clear and satisfactory. To this end the nature of the instrument and the character of the dispositions will often be of essential aid. Such a wrll ought not to be established, unless the provisions of it seem just and reason- able, and harmonize with the known, and formerly avowed, purposes of the testator, and with the state of his affections otherwise expressed. The facts appear in the opinion of the surrogate, — Bradford. The decedent was about sixty-eight or seventy years of age ; his health had been declining some time before his 348 TESTAMENTARY CAPACITY. decease, and he had been mostly confined to his house, for about four months, in consequence of increasing debility and the effects of a fall received in December, 1855. For several years he had been entirely deaf, and his friends ordinarily communicated with him by writing, his answers being given and conversation con- tinued, on his part, orally. He is represented as a person of great intelligence and acquirements, fond of discourse, and habituated to communicate readily with his associates in the mode I have described. At the time of the execution of the will the question was writ- ten on a slate, " Do you wish to make your will now ? " he nodded his head in approval. He then read the instrument, and, again nodding approval, proceeded to sign it ; he was then asked on the slate, " Is this your will ? " to which he signified assent by nod- ding his head and making some oral declarations, to which I shall hereafter particularly allude ; he requested two at least of the three subscribing witnesses to sign ; they subscribed the will in his immediate presence, and thus all the formal ceremonials were accomplished. Mr. Little, one of the witnesses, stated in his direct examination that no one requested him to sign ; but at a subsequent stage of the cause he further testified, that the dece- dent had on several previous occasions stated his desire to make his will, and that Mr. Little should be present as a witness at the time, — that he did not recollect that at the time of the execution the decedent did not ask him to attest the paper, but from his familiarity with him he was more likely to intimate his wish by a sign or a nod than by speaking, and that he did, in fact, motion to him to sign as a witness. Mrs! Thompson, one of the witnesses, states, however, quite distinctly, that the decedent requested both herself and Mr. Little to attest the instrument ; and I have no doubt the fact was so. The formalities were described in the attes- tation clause, and the parties had received the instructions and were acting under the supervision of a legal gentleman who was within call at the time. The probabilities are, that the statutory forms were complied with ; but, independently of inference, we have the positive statement of one of the witnesses that the re- quest was made in terms by the decedent. In default of this proof, however, I think that the reading and signing of the will and the accompanying declaration or response of Mr. Bach, to the question whether that was his will, followed by the signature of REQUISITE MENTAL CAPACITY. 349 the witnesses under his immediate eye, constituted a valid testa- mentary act, involving a substantial rogation of the witnesses. I must therefore hold that, in point of form, the will was properly executed. The next point for consideration is, to inquire whether the dece- dent had sufficient capacity to perform a testamentary act at the time of the execution of this instrument. It is alleged on the part of the contestants that he was generally incompetent, and espe- cially at or about the period of the celebration of the will was in a state of mental derangement. The first witness, chronologically speaking, adduced to testify on this point, was a policeman who accompanied the decedent to the hospital at the time of his fall in December, 1855. The officer states that as they rode in the car- riage together he aslied Mr. Bach several questions ; that he seemed confused, mumbled indistinctly, had a vacant stare, and gave no response to his inquiries. In view of the severe fall and conse- quent shock to his system this conduct is not at all remarkable, and is by no means indicative of any permanent mental injury, while the failure to answer questions admits of the simple solution that he was totally deaf. Prom this period until about the month of April there is no evidence tending to impeach the decedent's testamentary capacity. Mr. Ludlow states that in the spring he was employed to sell Mr. Bach's house, and the premises were put up at auction and bought in, the 14th or 15th of April. He also says that tlie sale was previously countermanded by Mrs. Monfort, who said, " that Mr. Bach might be incapacitated from transfer- ring the property either by death or from want of mind, as he seemed at that time to be entirely out of his reason." Dennis Regan deposes that he was employed for a month by Mrs. Monfort to take care of the decedent, — that he accompanied him several times when he went out, and on one of these occasions Mr. Bach fell and injured his arm severely. Regan says that some day after this Mrs. Monfort came to the kitchen and said, " Dennis, Mr. Bach has willed his property to Mrs. Gombault and to me ; and that next night she says, Dennis, you will go and take care of Mr. Bach ; he is very poorly indeed ; take off your coat and put a white handkerchief around your head. I did as she told me, and went into his bedroom. Mr. Bach was in bed at that time, and Mrs. Gombault was in the room. Mr. Bach wanted to get out of bed ; he shouted so loud, and says to me. Doctor, will you give me my 850 TESTAMENTARY CAPACITY. pass out of here ? Mrs. Gombault was standing by, and he said to her, Are you the church ? if you are, he said, be merciful. I have paid a heavy sum to-day, he said ; I have paid enough before, but I have paid a heavy sum to-day. This was the very day that Mrs. Monfort told me he had made his will." Mr. Keyser, the godson of Mr. Bach, testified that he saw the decedent on two several days, between the 21st and 24th of April last. On the first occasion the decedent recognized him, conversed a few minutes, and then broke off and spoke irrationally, asking the witness " how much produce he had raised the last season for marketing." In the afternoon he appeared irritated, and said something to the witness about neglect- ing his business. On the next occasion he did not notice Mr. Keyser, but sat in his chair, with his head down, picking at a sore on his arm and muttering. The witness stayed at the house a week after this visit, but did not again see the decedent. Margaret Ford, who had been a servant with Mrs. Gombault for six years, and left her in the month of September last, states that Mr. Bach took to his room in the month of April ; she saw him throughout that month, daily, except four days, when he would not allow her to be in the room, because, he said, she was " crazy." She slept in his room every second night, " to hold Mr. Bach in bed." She says, " he would go round the room without clothing ; " that she was told by the doctor to trip him up when she could not otherwise manage him ; and slie adds : " I mean by the word ' trip,' knocking him down. I did knock him down a great many times. ... I did not strike him, but took hold of him around his middle and threw him down." Independently of hearsay and proof of various declarations by parties and witnesses, this is the substance of the direct evidence against the decedent's testamentary capacity. In regard to Regan's testimony it is observable, that, so far as his knowledge extended, he specifies but a single occasion during the whole month he was in the house when any tiling indicative of mental disorder occurred in his presence. He says, this happened the night of the same day Mrs. Monfort communicated to him the fact that Mr. Bach had devised his property to her and her sister. He does not distinctly state that his informant said the will had been made that day ; but if he meant so to be understood, it is certainly somewhat remarkable, if she entertained a belief that Mr. Bach was deranged, that the communicative beneficiary under the will, deeply interested in its validity, should have thus aided COMMENTS ON THE TESTIMONY. 351 to expose its invalidity. Tlie statements of Di\ Storer tend to show that there must be some error with this witness as to time, if he designs to identify the day of the occurrence to wliich he has sworn with the date of the will. If, however, he only means to say that it happened the same day he heard a will had been made, then the instrument may have been executed, for aught that ap- pears, several days before, and the fact not have been made known until then. Regan does not recollect tlie date of his entering nor the date of his leaving Mr. Bach's service, nor the date nor the day of the week he sat up with him. He says, however, that it hap- pened after Mr. Bach was injured by the fall ; and here, I think, may be a clue to the difficulty. After the fall Mr. Bach did not go out, and there was no longer need for Regan's services. Now he states that he left in the month of May, and Dr. Storer affirms distinctly that the fall happened on the 4th of May. Nay, more, Regan himself incidentally states that Mr. Bach fell while taking a walk on Sunday ; and the 4th of May, 1856, was Sunday. These circumstances all agree naturally together, and lead the mind to the conclusion that the event to which he testified did not occur early enough to afiect the question as to the factum of this will. The supposition that the fall happened on Sunday the 27th is not probable. Such an approximation to the date of the will would naturally have impressed all the witnesses. Nor is it likely the doctor should have omitted a visit the day after the accident, and yet it appears that no visit was made the day the will was executed. Margaret Ford, however, states that she recollects the night Regan sat up with Mr. Bach, and she heard the ladies speak of the will that day, " the same day it was said to be made." Neither of these witnesses, then, professed to have any knowledge of the date at which this instrument was executed, and the materiality of their testimony substantially depends upon recollection of conversation ten months ago, as to which the slightest error would be important. Both of tiiem allege that Dr. Storer declared the decedent to be " crazy," and both of them are contradicted by the doctor on this point. One of them, moreover, has stated a method of treatment of this old gentleman, as sanctioned by the physician and the ladies with whom he had been domiciliated so many years, which excites our astonishment. She has given an account, also, of Mr. Bach's actions and deportment, which, so far as an affirmative can be re- futed by negative testimony, is uncorroborated by any other wit- 352 TESTAMENTARY CAPACITY. ness. Not one out of the whole number sworn ever observed, on a single occasion, what she did so frequently ; and her statement that the physician told her to trip the old man up " for fear he should choke " her is distinctly and flatly denied by Dr. Storer. The interviews stated by Mr. Keyser are placed by him between the 21st and 24th of April. It is urged that, as he had just come from the country, the remarks of Mr. Bach at the first visit, in regard to produce, were not irrational ; and that the decedent's deportment at the two succeeding interviews was entirely con- sistent with the state of his feelings towards the visitor. Without entering into these considerations, and giving the facts all the weight claimed for them, as tokens of irrationality five or six days before the will was made, we still must see what bearing they have in view of all the other circumstances proved in the case. In this connection I may allude to the testimony of Mr. Keyser and his wife, that Dr. Storer about this same period urged that Mr. Bach should be sent to the asylum, his malady having assumed the form of " craziness." The doctor puts this advice in a conditional form, that, " if" Mr. Bach " should prove so seriously ill as to make it necessary he should go to the asylum," the certificate of another physician would be indispensable. Without attempting to reconcile these various statements, it is apparent that the case, thus far, calls for more extended investigation. On the other hand, and in support of the will, the proof is as follows : Mr. Little, an old and intimate friend of the decedent, and, one of the subscribing witnesses to the will, states that, at the time of the execution of the instrument, Mr. Bach was sitting up in his chair, shook hands with him, examined and apparently read the will with deliberation, and gave it his approval. He also says that he had frequent interviews with the decedent, both before and after the 28th of April, in the course of which he communicated with him by writing on a slate, Mr. Bach reading what was written, aloud, and then commenting upon it, and conversing at length. Mr. Little declares that, at the time the will was made, he observed no difference as to the state of his mind, except what was naturally attendant upon the gradual failure of his bodily health, and like- wise an apparent indisposition to talk. Indeed, he says very broadly, " up to the time of his death, I observed no signs of mental derangement." Mrs. Thompson, another of the subscribing witnesses, was acquainted with Mr. Bach for two or three years, COMMENTS ON THE TESTIMONY. 353 and saw him every day or two during his entire illness. She testifies that, at the time of the factum of the will, Mr. Bach re- quested her to attest the document, and, after it was signed, expressed that " he was satisfied, and it was just as ho wanted it ; " that " his mind was perfectly collected when the will was made," and she " had not observed any indication of aberration of mind, or insanity." Mary Alexandre watched with the decedent every other night, from some time in April until his decease ; she states that he read the newspapers as late as the middle of May, and that he " was perfectly right " about the time of the execution of the will. Mr. Zimmerman sat up at night with the decedent in September, and shows that even then he was capable of expressing his wants ; that he recognized his attendants, and exhibited no symptoms of a " wandering mind." Mr. Andrews had an interview with Mr. Bach towards the close of May, but finding him just taking his chair preparatory to dinner, the conversation was brief. He says, " some remarks were made about the weather, and I think he inquired about my family ; he seemed to know me ; I was somewhat in a hurry ; I don't think I discovered any aberration of mind. He was in more feeble health, — weaker ; I discovered no more aberration than I had done ; he always spoke with me freely and correctly; I noticed no difference in that interview from others." . . . " I had seen him before, some time in April I think, and from January to May several times. I think I saw him some time in April ; I could not say definitely. We had the general conversa- tion we usually had, about the general affairs of the day. ... I esteemed him an intelligent man, and rather took pleasure in conversing with him. ... I did not discover in April any un- soundness of mind." Mr. Sutherland, who drew the decedent's will, at the request of the legatees, testifies that, about a week before the instrument was drafted, he dined with Mr. Bach in the par- lor downstairs, and conversed with him at length ; his answers " were very ready," and the witness thought he was " quite intel- ligent, discovered no incapacity." Mr. Ludlow called on Mr. Bach at his residence, " not long after the attempt at sale," and con- versed with him in relation to the property about twenty minutes, and found that he answered " intelligently." Dr. Putnam knew the decedent intimately for ten years. In the early part of March he had two interviews with him relative to the sale of his house. He says he " appeared just as usual, excepting that he was weak, — 23 354 TESTAMENTARY CAPACITY. he had been sick." ..." I wrote on the slate as usual, so that he sat and looked over, and would answer before I completed the word, being accustonaed to talk with me in that way." . . . " He appeared as usual, his mind seemed not quite so active, he did not seem to speak quite so quick ; he appeared rational." We now come to the testimony of Dr. Storer, who was the attending physician of the decedent, during his entire illness, from the 29th of December, down to his death. He states that Mr. Bach's illness commenced in December, from the effects of a fall, and that he had a second fall on the 4th of May. The disease of which he died was general prostration and chronic softening of the brain, or " general pros- tration of strength, ending in softening of the brain," indicated chiefly by the rational symptoms. The complaint did not develop itself until the last of May, or about June. " It did not altogether incapacitate him from transacting business ; it did partially towards the latter part of his life." He showed occasional signs of excitement and derangement, — " listlessness alternating with joyousness," and " he had at times, finally, mental delusion." There were " lucid intervals, sometimes as long as several weeks ; lucid intervals occurred up to the time of his death," during which " his mind was. entirely clear, and appeared to act normally." He went out as late as the 4th of May ; after that was not confined to his bed, but could walk about, and go up and down stairs for some time. There were no " symptoms of mental aberration between Decem- ber and the fall of the 4th of May ;" " no well-established symptoms, at all events," prior to the last date. The day previous to the execution of the will, " the condition of his mind was perfectly clear and lucid ; " he " was then in his right mind, so as to understand what he was going to do." The day after he had made his will, he " was in his right mind, so as to understand what he had done." " His mind continued to be in the same lucid and clear state for several weeks after that. Along in the summer, persons could converse with him intelligently by writing on the slate, which he always read ; " " persons who came in, conversed with him during all the summer." He always recognized the doctor, and at his last visit repeated his name. This testimony carries great weight. It shows, at the least, that parties who were in the habit of constant intercourse with the de- cedent observed no symptoms of incapacity actually existing, until after the factum of the will. Still the disease was .insidious in its LUCID INTERVALS. 355 approach, and slow in its progress. The symptoms were more definite and marked in the later than in the earlier stages ; but while in the course of tlieir onward movement the shades of differ- ence day by day were almost imperceptible, how shall we be able accurately to mark out the boundary line between a rational and an irrational condition, and to say, at this point the former ceased, and the latter began. This is always a great difficulty in cases of grad- ual development, and it leads to a careful scrutiny of an act per- formed shortly before the accession of undoubted symptoms, in order to see whether the act itself is conformable to the views of the party when in a state of health ; whether it is natural, rational, and accordant with the wishes, affections, dispositions, and circum- stances of the actor. I think, moreover, that there is ground for suspicion that some time in the month of April apprehensions were entertained of the possible approach of mental derangement. But if the symptoms giving rise to this apprehension were alarming, the proof tends to show that they relented, and that his faculties con- tinued in a rational condition, perhaps with occasional changes, for a considerable period after the execution of the will. Nor can there be any doubt that, even after his disease became confirmed, Mr. Bach had lucid intervals. Among the most mysterious of the phenomena of the human mind, is the variation of the power and orderly action of the faculties, under different circumstances and conditions, and at different times ; and especially mysterious is the oscillation from insanity to sanity, the rational power often fluctu- ating to and fro, until reason ultimately settles down firmly upon her throne, or falls, never again to resume her place in this life. Without speculating upon this interesting theme, it is sufficieu't to say that the law recognizes the fact established by experience, and does not hesitate to ratify the validity of a transaction performed in a lucid interval ; though it is exacting in its demands, and scru- tinizing in its judgment, of facts .adduced to exhibit and demon- strate intelligent action at the time of the event under investigation. The principle is thus stated in the Institutes : Furiosi autem si per id tempus fecerint testamentum quo furor eorum intermissus est, jure testati esse videntur. Quibus nan est permissum facere testamentum (Lib. 2, tit. 12, § 1) ; and it has been fully admitted in its broadest extent in the ecclesiastical courts. White v. Driver, 1 Pliillim. E. 84 ; Chambers v. The Queen's Proctor, 2 Curteis, 415. There can be no doubt that during an intermission of the disease the tes- tamentary capacity is restored. 356 TESTAMENTARY CAPACITY. Sir William Wynne remarks that " the strongest and best proof that can arise as to a lucid interval, is that which arises from the act itself; ... if it can be proved and established that it is a rational act, rationally done, the whole thing is proved." Cart- wright V. Cartwright, 1 Phillim. R. 90. Without, however, acceding to the entire length and breadth of this view, it must be admitted that the nature and character of the act which is the subject of criticism must have great influence in determining the mind of the court in its judgment of the case. It is also worthy of remark, tliat a lucid interval is more easily established in cases of delirium, or fluctuations arising from temporary excitement, or from periodicity in the attacks of the disease, than in cases of habitual insanity. In Coglilan V. Coghlan, cited in 1 Phillim. R. 120, the deceased was proved to have been completely insane before the will was thought of. The instructions for drawing the instrument were given in a com- posed manner, there appeared to be no disease at the time, and the will being reasonable and consistent with his intentions when his mind was clear, was admitted to probate. In Chambers v. The Queen's Proctor, the decedent committed suicide the day after he had executed his will. There had been indications of insanity about a year before, and for three days preceding the factum the deceased had been laboring under insane delusions. Sir Herbert Jenner said, " What is the court to do, in order to see whether the act of the deceased is a valid act ? It must look to the manner in which the act was done, to satisfy itself whether a lucid interval is established. It cannot be contended that the delusion was fixed and of long duration ; and if done during a lucid interval, the act will be valid, notwithstanding premWs and subsequent insanity."- The learned judge gave sentence for the will, mainly on the ground of the rea- sonable dispositions contained in the instrument, the absence of proof of delusion at the time of the factum, and the rational man- ner in which the act was performed. In the present case, giving the evidence of the witnesses for the contestants all the weight claimed, keeping in mind, however, the uncertainty as to the precise time of the occurrences, except the in- stances proved by Mr. Keyser, we have proof of capacity shortly before, and capacity for some time after ; besides the absence of any irrational signs at the time of the celebration of the will. Dr. Storer is explicit in his statement that delusions were evinced only during the later stages of the disease, and it is obvious, generally speaking, LUCID INTERVALS. 357 that the earlier symptoms of the case indicated a torpid rather than irregular or abnormal mental action, — inertness rather than aber- ration. After a careful consideration of all the evidence, duly comparing and weighing the whole, I am satisfied there were periods after the accession of the disease, and even for weeks after the date of this will, when the decedent had the requisite degree of capacity for the celebration of a valid testament. But in view of all the circum- stances and proofs, the apprehension existing as to the probable nature of his disease, and the preparation of the paper by the parties benefited by its provisions, I am bound to proceed with caution and circumspection ; and particularly to inquire whether the contents of the instrument harmonize with the state of the de- cedent's affections and intentions. On this point the evidence is clear and satisfactory ; for although he may previously have been interested in his godson, his testamentary intentions, whenever expressed, appear uniformly directed to another quarter ; and not- withstanding the will was prepared by the legatees, origination and recognition are shown on the part of the decedoat. Mr. Little says : " He did nothing more in the will than what ho always told me he intended to do ; . . . he told me he intended to give the ladies all he had ; he spoke particularly of Mrs. Gombault ; he said they were the only ones to receive it ; ... it was a matter always introduced by himself." Mr. Benjamin Merritt testified that, in the spring of 1854, Mr. Bach was desirous of purchasing a house, and stated to him in that connection, that " he wanted to buy a house for Mrs. Gombault." Mr. William H. Merritt, who was on intimate terms with Mr. Bach, deposed that, in the year 1854, he had several confidential conversations with him relative to the pur- chase of a house " for his own residence as well as that of Mrs. Gombault and Mrs. Monfort ;"..." he stated that his relations with Mr. Gombault had been of the most intimate character, asso- ciated with him in business ; that on some particular occasion pre- vious to his death, at which tin^e he was embarrassed pecuniarily and felt considerable anxiety for his widow, Mr. Gombault antici- pating his death, Mr. Bach promised him, ' with all the importance to my mind,' Mr. Bach so expressed it, ' of a death-bed promise,' that he would provide for Mrs. Gombault." ..." The words I have given were his precise words, and they were very emphatic." Mr. Tillinghast also testified to a conversation with the decedent 358 TESTAMENTARY CAPACITY. about the same period, in respect to the purchase of a residence, in the course of which he stated that " he had once been in business with Mr. Gombault, and promised him at his death, that he would provide for Mrs. Gombault, or see that she was taken care of." Mrs. Thompson says, that within three months prior to the execu- tion of the will, she heard Mr. Bach say, " He wished to have his will made, and wished to have it made in favor of these ladies, Mrs. Gombault and Mrs. Monfort," ..." that he had always intended Mrs. Gombault and Mrs. Monfort should have what he had to leave." Mary Alexandre, the nurse who sat up with Mr. Bach alternate nights, testifies that he frequently expressed the wish that " Mrs. Monfort would do what he had requested her to do," that he desired to " have his will made ; " and on the morning of the 28th of April, when Mrs. Monfort came to his room to inquire how he was, " he said he wished to have somebody come to draw his will ; he wished to leave every thing he had " to these two ladies. Mrs. Thompson says that " at the time he signed the will he said it was made in favor of the ladies, — that he had always intended Mrs. Gombault and Mrs. Monfort should have what he had to leave." And, finally, Dr. Storer gives this statement : " I saw him the morning of the day after he had made his will ; his condition of mind was a very cheer- ful one. On entering the room, he was sitting up in bed, and, rais- ing his hand, he said, ' Ah ! Doctor, I am very happy to see you this morning ; ' he said, ' I have done what I have long wished to do : I have made my will in behalf of Mrs. Gombault and Mrs. Monfort, my dear friends, who have always exhibited such tender care for me.' " This is distinct and emphatic, and corroborates the will by testimony confluent to the same point, from independent sources. Though one of the sisters originally possessed a stronger claim to his bounty than the other, yet he had long been domesti- cated with both ; they had all lived under the same roof, sat by the same fireside, and constituted one family together. Three witnesses speak also to declarations relating to both the legatees jointly, and I can have no doubt upon the evidence that it was his intent each should share in his estate. The heart naturally centres at home and the affections ever exercise a potent influence in directing the disposition of property, where there are no counterbalancing claims upon the justice or the liberality of the benefactor. We look ir vain for any proofs in this cause showing expressed testamentarj declarations in favor of any other party. And, finally, the state LUCID INTEBYALS. 359 ment made by the decedent the morning after the date of the will, is especially striking, as an intelligent exhibition of the transaction, and a touching exposition of the motive whicli animated it. Is this statement to be doubted ? and, if true, can there be hesitation in sustaining the act which this old man rejoiced so much in an- nouncing to his friend and physician ? In the first place, then, after this review of the testimony, what- ever may be the proof on other points, we have the doctor's evidence, clear, distinct, and definite, to this effect : that he was of sound mind the day preceding and the day succeeding the execution of the will. The fact that medical visits were then made only on alternate days, is repugnant to the idea that any alarming symptoms were present at that time. A witness testifies that, on the morning of the 28th of April, the decedent requested Mrs. Monfort to attend to the mat- ter of his will ; when the instrument is subsequently presented, the ceremony is performed rationally ; he examines the paper, declares it to be satisfactory, and describes it as devising his estate to the two beneficiaries ; a niglit intervenes, and he salutes his physician in the morning with the expression of his pleasure tliat he had accom- plished a chosen purpose, and again exhibits an intelligent compre- hension of the nature and special effect of the act. In the next place, after full examination, the contents of the will appear to be in harmony with his previous declarations. Years before, he had promised an old associate and friend, whose mind, in view of ap- proaching death, was filled with apprehensions for the fate of his wife, that he would provide for her. He had kept his pledge for many years, and when such voluntary obligations too often press more liglitly upon the conscience than they do when life is drawing to a close ; he had continued steadfast to his self-assumed duty, had extended his benefactions to the sister of his deceased friend's widow, and, for a long period, they had all abode under the same roof as brother and sisters. They tended his declining years with assiduous care, and he, mindful of the death-bed promise, sacredly observed its solemn obligations in one of the last formal acts of his ' life. There are no kindred intervening against this disposition, no persons of the decedent's blood who have been disappointed in ex- pectations of a natural succession ; but the controversy is between the State, claiming an escheat of his property, on the one hand, and on the other, parties standing towards him in relations of intimate intercourse, confidence, and affection, and in whose favor he had 360 TESTAMENTARY CAPACITY. expressed his testamentary intentions at various times antecedent. Under such circumstances, no presumption will be indulged against the validity of tlie instrument, except such as facts clearly proven compel the court to entertain. Mere suspicion will not overturn the disposition, and if there be discrepancies in the evidence, or doubts as to the preponderance of the testimony, the law inclines to sustain a reasonable and probable act. There is a general pre- sumption, also, in favor of capacity, which must be satisfactorily disproved, when no grounds exist for imputing fraud or circum- vention, and the contents of the instrument in question are natural and rational. It is proved that this was a reasonable act ; it ap- pears to have been rationally performed ; and I have no doubt it is my duty to pronounce sentence of probate. There must be a decree accordingly. Lucid intervals have been variously defined, both by law and medical ■writers. Mr. Taylor, in his work on Medical Jurisprudence, 651 (ed. 1861), says: " By a lucid interval we are to understand a temporary cessation of the insanity, or a perfect restoration to reason. This state differs entirely from a remission, in which there is a mere abatement of the symptoms. It has been said that a lucid interval is only a more perfect remission, and that, although the lunatic may act rationally and talk coherently, yet his brain is in an excitable state ; and he labors under a greater disposition to a fresh attack of insanity than one whose mind has never been affected. Of this there can be no doubt ; but the same reasoning would tend to show that insanity is never cured, for the pre- disposition to an attack is undoubtedly greater in a recovered lunatic than in one who is and has always been perfectly sane. Even admitting the correctness of this reasoning, it cannot be denied that lunatics do occasionally recover for a longer or shorter period to such a degree as to render them perfectly conscious of, and legally responsible for, their acts like other persons. The law intends no more than this by a lucid interval. It does not require proof that the cure is so complete that even a predisposition to the disease should be entirely extirpated. Such proof, if it could be procured, would be totally irrelevant. If a man acts rationally and talks coherently, we can have no better evidence of a restoration to reason. If no delusion affecting his conduct remain. in his mind, we need not concern ourselves about the degree of latent predisposition to a fresh attack, which may still exist. Lucid intervals sometimes appear suddenly in the insane. The person feels as if awakened from a dream, and there is often a perfect con- sciousness of the absurdity of the delusion under which he was previously labor- ing. The duration of the interval is uncertain ; it may last for a few minutes only, or may be protracted for days, weeks, months, and even years. In a medico-legal view its alleged existence must always be looked upon with sus- picion and doubt when the interval is short. These lucid intervals are most frequently seen in cases of mania and monomania ; they occasionally exist in dementia when this is not chronic, but has succeeded a fit of intermittent or peri- LUCID INTERVALS. 361 odical mania. They are never met with in cases of idiocy and imbecility. It is sometimes a matter of great importance to be able to show whether or not there exists, or has existed, a lucid interval, since, under these circumstances, the acts of a person are deemed valid in law. The mind should be tested, as in deter- mining whether a patient is laboring under insanity or not. He should be able to describe his feelings, and talk of the subject of his delusion, without betraying any signs of unnecessary vehemence or excitement. It may happen that a per- son who is the subject of a commission of inquiry is, at the time of examination, under a lucid interval, in which case there may be some difficulty in forming an opinion of the existence of insanity. This occurred in the case of Lady Seymour (July, 1838). When examined before a commission, her replies were so rational and collected that no verdict could be given, and the case was adjourned. When the inquiry was resumed, it was satisfactorily proved that she was insane, not merely by general and medical evidence, but by the terms of her will, which had been drawn up by herself. It has been said that a person in a lucid interval is held by law to be responsible for his acts, whether these be of a civil or criminal nature. In regard to criminal offences committed during a lucid interval, it is the opinion of some medical jurists that no person should be convicted under such circumstances, because there is a probability that he might at the time have been under the influence of that degree of cerebral irritation that renders a man insane. (Prichard.) This remark applies to those instances in which the lucid interval is short. Juries now seldom convict, however rationally in appearance a crime may have been perpetrated, when it is clearly proved that the accused was really insane within a short period of the time of its perpetration." Combe, on Mental Derangement, 241, says : " However calm and rational the patient may appear to be during the lucid intervals, as they are called, ... it must never be supposed that he is in as perfect possession of his senses as if he had never been ill. In ordinary circumstances and under ordinary excitement his percep- tions may be accurate and his judgment perfectly sound ; but a degree of irrita- bility of brain remains behind which renders him unable to withstand any unusual emotion, any sudden provocation, or any unexpected and pressing emergency." And in Pothier on Obligations, App. 679, lucid intervals are de6ned as "an approximation towards perfect restoration of mental soundness, but not of mental strength." Lord Thurlow, Chancellor, in Attorney-General ». Parnther, 3 Brown's C. C. 444, defines a lucid interval as " an interval in which the mind, having thrown off the disease, had recovered its general habit." And Lord Eldon, Chancellor, in Ex parte Holyland, 11 Vesey, 11, says : " There may be many instances of men restored to a state of mind inferior to what they pos- sessed before, yet it would not be right to support commissions of lunacy against them." And in Hall v. Warren, 9 Ves. 611, Sir William Grant, M. R., said: "If general lunacy be established, they will be under the necessity of showing, not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficient to enable the party to judge soundly of the act." The American courts have maintained much the same views. But the best considered cases all agree that there should be the most satisfactory evidence of the complete restoration of mental soundness, after the existence of general insanity, in order to the valid execution of a will ; and to this end the regu- 862 TESTAMENTARY CAPACITY. larity and consistency of the provisions of the instrument are regarded as indispensable. For if there is any thing unnatural or in conflict with the known purposes and desires of the testator before the visitation of the malady, it will naturally be referred to the covert existence of the malady at the time of the execution of the instrument. Thus, in Gangwere's Estate, In re, 14 Penn. St. 417, it was held that the act of a lunatic, done during a lucid interval, may be valid ; but the proof of the lucid interval must be clear. And in Haden v. Hays, 9 Penn. St. 151, it was held that the proof must show that the testator was sane at the very time of executing his will, and that this cannot be left to inference from the fact of his being sane the day preceding. For after a person is shown to have been generally insane once, no presumption of sanity arises ; but the burden of showing it rests upon the executor. Nor is there any presumption of the continuance of a lucid interval until after it is shown to have continued for so long a time as to justify the presumption of a complete restoration. But the mere fact that the testator was of unsound mind, both before and after the exe- cution of the will, does not invalidate it, where the jury find generally that it was executed during a lucid interval. Wright v. Lewis, 5 Rich. 212. It has been said in some cases that, notwithstanding proof of general insanity at one time, which the law presumes to continue until proof of its cessation, nevertheless, a will, perfectly rational, will be upheld, without proof of a lucid interval, except what arises fiom the fact of having executed a rational will. Cartwright v. Cartwright, 1 Phillim. 290. But perhaps this proposition may require some qualification. There must be other proof, probably ; but, no doubt, the nature of the act will have a very controlling influence upon the mind of the triers, where there is apparent proof of the discontinuance of the malady. Suicide committed ever so soon after the execution of the will is no cer- tain evidence of insanity. Brooks v. Barrett, 7 Pic;. 94, ante, p. 5 ; Duffield v. Kobeson, 2 Harring. 375 ; Chambers v. Queen's Proctor, 2 Curteis, 415. But unquestionably suicide near the time of executing a will must be regarded as evidence tending to show an unsettled, and, to some extent, an unsound state of mind, and that fact is receivable ; but it is certainly not conclusive, since many wills have been established, although executed very near the act of suicide, as some of the cases just cited show. X. Effect op Religious Opinions upon Testamentary Capacity. Gass V. Gass, 3 Humphrey's Tennessee Heports, 278. 1842. Mere error or absurdity in regard to religious opinions, entertained by the testa- tor, will not be regarded as sufficient evidence of mental perversion to avoid a will. Where the testator believed that there were degrees in heaven ; that whatever circle of life a man lived in on the earth would be enjoyed by him in heaven ; that his pre-eminence there depended materially upon the amount of property he acquired here, and the charitable purposes to which he might have appro- EFFECT OP RELIGIOUS OPINIONS. 363 priated it, — it was not regarded as evidence of insane delusion so as to hinder his making a. valid will. But where the testator entertained the belief that the doing some great charitable deed would advance him to a high state in heaven, it would be for the jury to decide whether this was an insane delusion, and whether the testator made his will under its influence ; and, if they so find, the will could not be maintained. It is impossible for any human tribunal to determine how far merely theoretical beliefs, in regard to the future life, are founded in delusion, since there is no mode of testing their accuracy. The opinion of the court was delivered by — TuRLEY, J. There is proof in the record tending to show that the testator held opinions somewhat peculiar in relation to futurity ; to wit, that there were degrees in heaven ; that whatever circle of life a man lived in on this earth would be enjoyed by him in heaven ; that his pre-eminence there depended materially upon the amount of property he acquired here, and the charitable pur- poses to which he might have appropriated it. This, it is con- tended, is delusion, and the court was asked to charge that it was evidence of insanity sufficient to avoid the will. The court said, if a testator acts under a delusion which is the result of a dis- ordered mind amounting to insanity, and the delusion influences the testator in the execution of his will, it will be sufficient to avoid his will. Whether any particular delusion amounts to such an alienation of mind as will be esteemed insanity, is a question of fact for the jury to determine. If they believed that John Gass was under the belief that the doing some great charitable deed would advance him to a high state in heaven, and that the delusion was so absurd and visionary as to amount to insanity, and executed his will under its influence, it would be sufficient to avoid it. This charge is objected to as being vague and uncertain. It is difficult to conceive how it could have been made more specific, without interfering with the province of the jury, whose right it is, as we have seen, to determine the question of insanity. The judge might perhaps have attempted to define what constitutes delusion, but this is a most difficult thing to do, and is but very unsatisfactorily done even by the most acute and metaphysical minds that have investigated it. He certainly could not legally have said that the points of belief avowed by the testa- 364 TESTAMENTARY CAPACITY. tor were delusion, because that would have been deciding the very question for the trial of which the jury was impanelled, for delu- sion is insanity. Shelford, in his treatise on the Law of Lunacy, says (p. 40), " The true criterion, the true test of the absence or presence of insanity, wliere there is no frenzy or raving madness, seems to be the absence or presence of delusion ; that delusion and insanity seem to be almost convertible terms, so that a patient under a delusion on any subject or subjects, is for that reason essentially mad or insane on such subject or subjects, to the extent of the delusion." In 3 Haggard, 598, 599, Sir John Meholl, who is high authority, says, " that no case had ever come under his consideration, where insanity had been held to be established, without any delusion ever having prevailed ; nor was he able exactly to understand what is meant by a lucid interval, if it did not take place when no symptoms of delusion can be called forth at the time." If, then, delusion be insanity, to charge that the proof established delusion would be to charge that the insanity is proven, the question of fact to be determined ; but the court was asked to charge that it was evidence of insanity sufficient to avoid the will. The points of belief avowed by the testator are expres- sions of opinion, which opinion is eitlier a delusion or not ; if it be a delusion, it is direct insanity ; if it be no delusion, there is no insanity, and of course it cannot be evidence of it. But who shall say that the opinion avowed by the testator, as to futurity, is a delusion ? Delusion is defined to be when a patient conceives something extravagant to exist, which has no existence but in his own heated imagination, and having so conceived it, is incapable of being reasoned out of the conception (Shelford on Lunacy, 40) ; as the fancying things to exist which can have no existence, and are impossible, according to the nature of things, — as that trees walk (Shelford, 293) ; the magnifying slight circumstances beyond all reasonable bounds, as if the parent of a child, really blamable to a certain extent in some particulars, takes occasion to fancy her a fiend, a monster, an incarnate devil (Shelford, 41). We can com- prehend the delusion of the man who fancied he was Jesus Christ, and kindly extended his forgiveness when asked, saying, I am the Christ ; also his who imagined he corresponded with a princess in cherry juice ; and his who dreamed dreams, and heard voices directing him to burn York Minster Church. But we cannot EFFECTS OF MODERN SPIRITUALISM. 365 comprehend a delusion upon a point of belief as to the nature of future rewards and punishments, and the principles of justice upon which they will be distributed. This is a subject beyond the ken of mortal man, and in one sense of the word, perhaps, every individual is laboring under a delusion who attempts to solve it. Yet there is no subject we are more disposed to the- orize about, and about which there is a greater conflict of opinion. The fool hath said in his heart there is no God, and of course no future rewards and punishments; a dreadful error, yet no one apprehends that it amounts to insanity, and that he has not a disposing mind. The Turk looks to his heaven of sensual enjoy- ment, the Christian to his intellectual points of faith, differing as widely as the sources of their religion. Delusion in its legal sense cannot be predicated of either, and indeed of no creed upon the sub- ject, because there is no test by which it can be tried. The testa- tor's impressions are innocent and harmless, at least, and, for aught we can say, may be true. Charity, in all its ramifications, is a theme upon which our Saviour, while on earth, dwelt again and again with marked emphasis, and enforced with the strongest promises of rewards and punishments. Upon this point there is no error. EFFECTS OP MODERN SPIRITUALISM UPON TESTAMENTARY CAPACITY. We have been at considerable pains to obtain a copy of the fol- lowing opinion from the reporter of the State, in order to'afford the profession the latest judicial declaration upon a subject which is extending, every day almost, to greater numbers and more highly cultured portions of the native as well as foreign population of the country. It is not a subject in regard to which any a priori con- clusion could safely be made, so far as the cause or the cure of the malady is concerned. We use the term " malady " advisedly, and without the slightest misgiving, so far as those are concerned who sincerely believe in the pretensions of modern spiritualism. There are, no doubt, multitudes concerned in exhibiting its pre- tended miracles who have no belief whatever in any portion of what they exhibit, from night to night, being any thing more than mere jugglery or slight of hand ; who are, to all intents, the basest hypo- crites, the most arrant pretenders and knaves. For here, it is not 866 TESTAMENTAEY CAPACITY. the same as with the common juggler who takes your money for the privilege of seeing his dexterity and slight of hand, and who claims notliing higher for his art than mere slight of hand. Here is no hypocrisy and no fraud or imposition. But the spiritualistic impostor can prefer no such apology for his deliberate imposition upon his auditory or lookers on. He claims to be the medium of the performance of downright miracles ! And if he be a mere juggler he deserves double reprolmtion for his fraud and hypocrisy. But in regard to the large majority of ostensible believers in mod- ern spiritualism we can justify no such railing accusation. They are no doubt sincere, and of course enthusiasts and dupes. We speak in the sense of the law, of course, which takes no cognizance of spiritual agencies or of assumed spiritual evidence. There is notliing in the records of Christianity which would lead us, specu- latively, to expect continued communication with the spirits of the departed, whether of the faithful or the reprobate. The parable of the rich man and Lazarus, indeed, by way of allegory, figures something of the kind, but, on the wiiole, forbidding the belief in any literal return of spirits to earthly associations. " There is a great gulf fixed : so that they whicli would pass from hence to you, -cannot ; neither can they pass to us, that would come from thence." This reply of Abraham to the request of the ricli man to send Lazarus to relieve his suffering in torment would seem to preclude the belief of the free intercourse of good and bad spirits through- out the domains of each other. And Abraham's refusal to send Lazarus to warn the brethren of the rich man, " lest they also come into this place of torment," — "if they hear not Moses and the prophets, neither will they be persuaded, though one rose from the dead," — would seem to intimate, pretty decidedly, that there is no communication, in this life, even with the spirits of tlie faithful departed. And if we attempt to follow the subject beyond what is revealed in Scripture, our daily experience and the history of the world strikingly confirms tlie same view. For if there is any thing which could draw down the spirits of the departed from their celes- tial spliere into this earth-bound country, it would surely be the almost indissoluble ties of love and affection between them and us. Nothing but absolute impossibility could hinder the daily and hourly meeting of those sundered relations, yet we know nothing of the kind, in the general experience of mankind. When the dearest friends and those united by the tenderest ties have made EFFECTS OF MODERN SPIRITUALISM. 367 the most solemn promises to each other to continue their inter- course beyond tlie bounds of earthly life, and that whichever first departed should, if it were possible, return to earth and make himself or herself known to the other, a memorable instance of which occurred between the late Washington Irving and one of his dear friends ; still we find no well-authenticated instance of any such reunion after death. All this, and any amount of further evidence, cannot fail to satisfy all that, in the ordinary experience of mankind, the thing never occurs, — we mean it never occurs in the daily and ordinary experience of ordinary persons, — those who are not too much excited to observe coolly, or too feeble to judge discreetly. We take no account of the witch of Endor bringing up Samuel, or of the Saviour appearing to his disciples, or to St. Paul on his road to Damascus, for these must be regarded in the nature of miracles. Nor do we intend to declare modern spiritualism all a pretence or a delusion, although we believe it to be mainly such. But whatever of truth there may be in its pretension to clairvoyance or to mesmeric influence, there can be no question, in the minds of most thoughtful and sober persons, that most of its higher pretensions must be regarded as delusion ; whether of the character of insane delusion, or not, is tlie important , question involved in tiiis case. We shall now give the opinion, as a direct text for further suggestions. ^ Robinson v. Adams, Supreme Judicial Court of Maine. {Not reported.) 1874. Declarations of the testatrix are admissible to show the state of mind, either as to sanity or the state of her feelings towards those naturally entitled to her bounty, and they may be upon any subject inquired into in the course of the trial. Any witness examined in regard to the sanity of the testatrix may be asked whether he saw any thing peculiar in her conduct or conversation. How far he may express a general opinion in regard to sanity, Qurnre. Where testamentary capacity and freedom in making the will is attempted to be impeached, on the ground of the testatrix's belief in spiritual communication with her deceased husband in regard to the provisions of her will, and also that her son-in-law possessed supernatural power to influence his wife, and that he was himself under the power of devils, thus inducing her to tie up her estate so that he should never have any benefit of it, the jury must determine how far these beliefs are founded in insane delusion or exercise undue influ- ence upon the testatrix in regard to her will, they being properly instructed as to what constitutes insane delusion or undue influence. 368 TESTAMENTARY CAPACITY. The facts sufBciently appear in tbe opinion by — Kent, J. This is an appeal from the decree of the Probate Court allowing and probating the instruments purporting to be the last will and testament and codicil of Mary W. Green, widow of Gard- ner Green, late of Topsham, in this county, deceased. The sole heir at law, the appellant, contests the probate of the will and codicil. The will and codicil, instead of givihg the estate directly to her, absolutely and in fee, devises all the property and estate, after payment of debts and expenses, to trustees, in trust for the uses specified. The substance of the provisions as to the trusts designated, is that the daughter, the appellant, shall liave five hundred dollars per annum, out of the income of the estate, during the life of her husband, the residue of the income to be invested by the trustees. If the daughter shall survive her husband, then, after his decease, she is to have the whole of the income of the estate during her lifetime, to her own exclusive use and benefit. After her decease the whole income is to be paid to her surviving child or children and to the survivor of them during life, or during minority, what the trustees may deem necessary for their thorough and suitable education ; and, if necessary, to appropriate a part of the property besides the income for' their support and education, provided the father is not of suflScient pecuniary ability to support and mauitain them himself. The will then proceeds to make provisions by which the trust is to be continued for the benefit of grandchildren of the daughter, if any, and is not to be terminated until the arrival of the youngest grandchild at the age of twenty-one years. Then the whole estate, real and personal, is to go to the grand child or children absolutely, free of the trusts, to them and their heirs for ever. In case the testatrix's daughter died leaving'no lineal descendants surviving her, the property is to be divided among the children of the brother and sister of the testatrix, to whom it is also to go in case of the death of all the cestuis que trust before the youngest attains the age of twenty-one years. In the trial of this case, certain questions were put in issue under the direction of the court, arising under the pleas filed and joined. There were three separate pleas ; in substance, these : — STATEMENT OP THE CASE. 369 1. Denial of the due execution of the will. 2. Tiiat the testatrix was not of sound mind at the time of the supposed execution of the will. 3. That she was unduly influenced in the making of the will by various persons, " and that the instruments (will and codicil) were not the fruit of her own mind and will, uncontrolled by otlier persons and influences." Tiiere was no brief statement, specifying or limiting the points presented by the pleas. The executors introduced evidence to prove the legal execution of the will and the soundness of the mind of the testatrix. Tiie only questions raised under this part of the case had relation to the admission of certain evidence, and tlie instructions given as to the burden of proof, and as to preponderance of evidence. Tliese will be considered hereafter. The appellant then offered a large amount of testimony, under the second and third pleas, and to rebut the evidence as to sound- ness of mind, and to establish the fact of undue influence. Tiiis testimony took a wide range, and had relation to the history of the domestic relations between the daughter (tlie appellant), and the mother (the testatrix), and the husband of the daugliter, including acts, visits, declarations, letters, — evincing more or less of affection, aversion, dislike, and persistent determination in such dislike, and in a purpose to prevent the daughter's husband from receiving any thing from her estate. The same kind of testimony was introduced to show undue influence on the part of living persons, and from what she believed to be the spirit of her deceased husband, communicating with her tlirough mediums. Under these pleas, also, there was a large amount of evidence, oral and written, to show that the 'testatrix was a firm believer in what are termed spiritual communications between the living and the dead, generally believed by the class of people known as modern spiritualists. The appellees (the executors) then introduced counter-evidence on the same general topics, and such as they deemed pertinent to sustain their proposition of testamentary capacity and to refute the allegations of undue influence. On tliis body of evidence it became the duty of the presiding judge to give instructions to the jury, and to some of these jnstruc- 24 370 TESTAMENTARY CAPACITY. tions, and to some denials of instructions requested, the appellant excepts. We will first consider the exceptions to the charge. The judge first considers the questions of soundness of mind, and subse- quently, as a distinct matter, the question of undue influence, placing them before the jury separately. Sanity. The presiding judge stated to the jury that the statute makes soundness of mind a requisite qualification in a testator ; hence it was incumbent on those who set up the will to establish this fact, and that the burden does not shift ; that the rule of preponderance of testimony in civil cases applies, not the rule of the criminal law. He said that a " sound mind " were the words of the statute ; that a sound mind was'a sane mind; that sanity meant health, and that therefore a sane mind was a healthy mind. When a mind not imbecile acts healthily, it may be called sound. But if a testator acts under a delusion which is the result of a disordered mind, amounting to insanity, and this delusion influences the testator in making his will, or any part of it, it will be sufiicient to avoid his will, on the ground of want of a sound mind when he made it. The judge, after stating the fact that there were different degrees of insanity, and alluding to the cases of general insanity, in which all or most of the faculties and affections are deranged, so that tliat class are commonly said to be lunatics, — entirely crazy, some- times raving maniacs, and sometimes quieter, — yet with most of their powers of mind deranged, and the whole mind in a state of chaos and confusion, said he did not deem it necessary to dis- cuss that kind of insanity, as it was not contended that this testatrix was in that condition of entire lunacy or madness. Hp would only say that, if she was in that condition, then she was incapable of making a will, whether it could be established or not that any of such insane delusions operated upon her to make thef will, or any part of it. But he did not understand that it was contended in this case that the testatrix was in that condition of en- tire lunacy when she made the will and codicil, but it is contended that lier mind had become deranged from a healthy state, and that she entertained insane delusions, within the rule before given. He then told the jury that it was for them to decide whether she did or not ; and that if Mrs. Green, at the time of executing her will and codicil, or either of them, was laboring under a delu- REQUESTS FOB CHARGE AND CHARGE. 371 sion or delusions amounting to insanity or monomania, — which is insanity on a particular subject, — or under insanity generally, and any of these insane delusions operated upon or influenced her in making the will as it was made, then she was not of the sound mind required by law. The substance of this seems to be that the appellants contended that the evidence was sufficient to prove delusions existing in her mind, such as would invalidate the will. The court ruled that the delusions must be such as amounted to insane delusions. The propositions of the counsel, presented as requests for in- structions, indicate clearly the specific points and grounds in relation to which it was claimed that these delusions existed, and to which the rulings were applied. The _^rs< requested instruction was this: that if Mrs. Green believed that the spirit of her deceased husband directed or dictated the will and codicil, and acted under that belief, they are void. The second was : that if she entertained a groundless and cause- less suspicion of Mr. Robinson's character, and that he was exposed to the control of evil spirits, and made the will and codicil under that influence, they are void. The third was : that if she disliked Mr. Robinson, and believed that he had a supernatural power over his wife, a power through the aid of evil spirits, and was influenced to make her will and codicil as she did, by this belief, then they are void. The fourth was : that the will and codicil must be wholly the offspring of her own mind, uninfluenced by any delusion. As to the first requested instruction, the judge said, as appears by the report, " I give you that, — I have already given it to you in substance." The judge evidently understood the request as bear- ing on the other point of undue influence, concerning which the fifth request was presented. The judge had charged fully that if she believed that the spirit of her deceased husband directed or dictated the will, it would be void on the ground of undue influence, as will more fully appear when we come to consider that point of undue influence. The counsel, in his argument on this hearing, regards this as in substance a request to instruct that if such belief had any influence, although short of direction and dictation, it would invali- date the will. Or perhaps, in short, that a belief in spiritual com- munications was in itself an insane delusion, if it had any influence on the mind of the testatrix in making her will. If the judge had so 372 TESTAMENTARY CAPACITY. understood the request, he would, doubtless, in consonance with his whole charge, have given this, as he did give the second, tliird, and fourth requests (above recited), with the qualification in each, that if such matters amounted to insane delusions, as explained in the charge, and influenced her in making her will, the will would be void. The requests were, in effect, that the judge should rule, as matter of law, that these specified matters, under each head, did establish such delusions as would render the will void. The judge did not thus take the question from the jury, but told them that it was for them to determine whether there wa's such a state of mind as came within the rules and definitions given to them. This was stated, as before recited, in the first part of his charge ; and after calling tlie attention of the jury to the points made, and the facts proved, and the evidence bearing on each and all of them, he concluded his charge on this part of the case by saying, " The point is this : did these things, these beliefs, these mattei's, with other influences, no matter what, create in her mind insane de- lusions ? and did she act on them in the making of her will, or any item of it ? If so, then you will be justified in saying she was not of sound mind." We think it clear that the final determination as to the testa- mentary soundness was with the jury after the definitions and rulings of the court as to tlie legal questions. Was there any substantial or material error in these rulings and definitions ? The charge was long, and is reported by the stenographer in full, and doubtless correctly. But it necessarily presents many remarks and illustrations and repetitions, which render it some- wliat difficult to reduce the whole to a few simple propositions. Indeed, it is very difficult to comprehend the exact import of the charge in all its bearings without a perusal of the whole, as given ; but to afford this would extend this opinion unreasonably ; a brief statement of the points must, therefore, suffice. After stating that if a testator acts under a delusion, the will which is the result of a disordered mind is invalid (as before set forth), the judge called the attention of the jury to the point that the delusion must be the act of a disordered mind, and that the term " delusion," as applicable to insanity, is not a mere mistake of a fact, or the being misled by false testimony or statements to DISCUSSION OF INSANE DELUSION. 373 believe that a fact exists where it does not exist. This is some- times termed " delusions." So some men will believe on much less evidence than others that a fact exists, particularly in matters not tangible to the senses, but resting in mental or spiritual theories or beliefs. A false assumption does not invalidate, unless it is an insane delusion. The principal objection now made to the charge, under the gen- eral objection to it as a whole, relates to the definition given of an insane delusion. The judge read from Bouvier's Law Dictionary this definition : " A delusion is a diseased state of the mind, in which persons believe things to exist which exist only, or to the degree they are conceived of only, in their own imaginations, with the persuasion so fixed and firm that neither evidence nor argu- ment can convince them to the contrary." The judge then added: " But insane delusions as a fact may be where the supposed fact is the coinage of the brain, without evi- dence, — a figment of the imagination." To this addition the counsel excepts, assuming that this was a definition extending and includ- ing all cases of insane delusion. But it was simply a definition applicable to one class of delusions, and not intended to exclude all other cases ; and even this was stated not absolutely, and was confined to delusion as of a fact. . The judge then explained to the jury the difference between a delusion as to the existence of a fact and one where the fact is rightly apprehended, but the reasoning upon the fact, and the con- clusions drawn from the existing facts are entirely wild and absurd, showing that the insanity is in the mental powers and operations. Coming to the case before them, the judge asked, if a delusion existed in any form, was it an insane delusion ? He then gave to the jury a definition furnished by the counsel for the appellant, as follows : " In a legal point of view, insanity is where a person believes something to exist which not only does not exist, but of which he has no evidence sufficient to satisfy any healthy mind, and he acts upon it, reasons upon it, and holds it as a reality." This was given as an instruction, the judge adding this : " That may be an insane delusion ; that is to say, where it is so palpable that he believes it without reason,-^— any reason sufficient to satisfy any healthy mind, — and he acts upon it, when it cannot possibly be true : that is an insane delusion." Now this additional explanation is strongly objected to by 374 TESTAMENTARY CAPACITY. counsel, as extending the rule given in the book, to the injury of his client. But the rule starts with the absolute assertion or assumption, as the basis of the whole rule of law, of the fact that the " something which the person believes to exist " does not exist. It requires, to start with, that the absolute non-existence of the fact believed to exist ; and this, of course, must be established conclusively before any conclusion of insanity can be drawn. It would seem to be too plain to weed any argument, that before a delusion as to a fact could be predicated or established, the non- existence of the fact must be, in some mode, put beyond doubt. The judge in another part of his charge said : " Before any thing (in law) is a delusion, the non-existence of it must first be estab- lished." The qualification as given was rather to relax the rule in favor of the positions of the appellant than to make it more stringent. It evidently had particular reference to the belief in spiritual and supernatural influences and communications. By the literal meaning of the i-ule given in the books, it must first be established absolutely as a demonstrative fact, that the matter or fact, about which the delusion was said to exist, had.no existence. But, clearly, it would be impossible to prove that iu the present instance by direct testimony. The judge, therefore, qualified the rule by allowing the jury to find that it might be an insane delusion if the testatrix believed what could not possibly be true ; although no positive or direct evidence was or could be offered to establish the falsehood of such spiritual beliefs. The jury might determine this point in favor of the proposition of insanity on their own conviction of tlie impossibility of the truth of the facts on which the claimed delusion rested. We do not see how the appellant was injured by this qualifica- tion of his requested instruction by the presiding judge. The jury were then directed to apply this test to all the facts in the case, as shown in the evidence. The principal difference between the requested instructions and those given, is in this: the requests asked for rulings that 'should declare, as matter of law, that certain facts and matters recited were each in tiiemselves insane delusions, and rendered the will, for that cause, void ; the rulings given did not so declare, but required the jury to determine, after a full and fair consideration of all the evidence bearing on JURY TRIALS IN PROBATE CASES. 375 the question, whether the testatrix was under an insane delusion within the rule given. The court will not ordinarily withdraw the questions raised under the issues framed from the jury, where the very purpose of framing such issues is to have the jury inform the court as to the truth of certain allegations, as is the case where the Supreme Court of Probate is called upon to probate a will, and the due execution of it, or the soundness of mind of the testator, is in question. It is the duty of the court to give instructions on the points of law, and to explain and illustrate them, but it will not, unless possibly in some cases where there can be no real question of fact to be determined, undertake to direct the jury what their finding should be. Even then it would be the more proper course to withdraw the issues from the jury, and for the court to act on its own convictions, without the aid of a jury. There is no common- law right to demand a trial by jury in cases of appeal from the Probate Court. It is only when, upon a hearing of such appeal, " any question of fact occurs proper for a trial by jury, an issue may be formed for that purpose, under the direction of the court, and sq tried." It is true that if the requested instructions had been given, some questions of fact would remain for the jury. But substantially the court would have declared that she was not of sound mind. The grounds chiefly relied upon to show unsoundness of mind, were the belief in spiritual communications, particularly with the spirit of her deceased husband, and her suspicions and belief as to her son-in-law, Mr. Robinson, touching his exposure to the control of evil spirits, and his possession of supernatural power over his wife, through the aid of evil spirits. The judge did not rule that the belief in what are called spiritual communications or revelations, i.e., that spirits did communicate with human beings through mediums, was ipso facto and in itself au insane delusion ; nor did he say peremptorily that it was not ; but he told the jury to consider how far that belief showed delusion under the rule before given them, and whether that' belief was in itself an insane delusion. The learned counsel for the appellant has denounced such belief in very powerful and eloquent language, and calls upon the court to deny to it " a standing in court," and to show its concurrence 376 TESTAMENTARY CAPACITY. in the denunciation of an English judge who termed it "mis- chievous nonsense," with other like designations. And yet the good sense of the counsel realized' that we were called to deal with this matter not tlieologically, or in one sense morally or scientifically, but legally, as bearing on the single point of insanity or insane delusion. What our individual or collective opinions as to the facts, truth, possibilities, or evidence, or claims, of this so-called spiritualism may be, has- nothing to do with the questions before us. It is only as to the proved effect of this belief on another person's mind that is before us. Did this belief unsettle her intellect and make her of unsound mind within the meaning of the statute? Even if true, it might produce that effect, by a long continued and exclusive and fanatical devotion to the thought. The judge so said in. substance when he stated to the jury, by way of illustration : " Now there are questions arising in relation to mere speculative belief in abstract propositions of theology, or law, or other matters, particularly in theology, — spiritual truths. These mere speculative beliefs of abstract propositions you may think very absurd : you don't see how anybody could believe such things, suqIi creeds or doctrines ; yet others may believe them, and not be insane. They may rest so in a person's mind, and work so in his mind, and may so upset his mental powers generally or partially, or topically on particular points, that he may become insane, arising from this very cause." He illustrated further by the case of a man who believed fully in the second coming of Christ, personally and bodily. This to many may seem a strange and unsustained faith. But would any one say it was an insane delusion ? But by constant dwelling on this single idea he comes to believe and to proclaim his belief, not merely that Christ will come again on earth, but that he himself is the very Christ that was to come, and to assert his official char- acter with perfect assurance and sincerity. There the delusion would be, not in the original faith, but in the consequences that have worked out from it in his mind, finally upsetting liis powers of reasoning, until we say that man has an insane delusion. The judge also stated further, that in this case it was contended that tlie testatrix believed more than this simple proposition of the existence of spiritual communications ; that she believed that she INSANE BELUSIONS. POWER OF HEALING. 377 had the power to heal, and to some extent 'exercised it at home and on others ; that she believed it was the same sort of power that was employed by Christ and the apostles ; and, further, that she had various other imaginations and delusions, in one way or another. The judge then gave the rule before stated, telling the jury that all these matters were before them, and it was for them to- say, in view of them all, whether singly or together, they had brouglit her to the state of unsoundness of mind by reason of insane delusion or illusions ; and whether such delusions operated upon her in making this will. Preliminary to this summing up, and as included within it, atten- tion had been caUed also to all the evidence touching the relations between tlie testatrix and her daughter and Mr. Kobinson, and her beliefs, and acts, and feelings, and declarations, with the distinct' instruction that, " if the conditions in the will were made through dislike of Mr. Robinson, if that state of mind was a delusion, and had reached the point of being an insane delusion, — and it will be for you to determine whether it did or not, — then it would invalidate the will." We do not perceive what valid objection can be made to the charge on this point of soundness, when it is examined in its full scope and fair meaning. Indeed, the counsel frankly admits, in his very elaborate argu- ment on all the points : " We do not contend that a mere specula- tive belief in spiritualism, if it is not acted upon and has no influence over the testator, would render a person incompetent to make a will." Tliis belief, then, per se, is confessedly not insanity or an insane delusion. But the counsel does contend that, " if the will was made under such an influence, or if such an influence had any effect upon the mind of the testatrix in making the will, it is invalid." But if the belief was not in itself an insane delusion, how could acting upon it sustain the plea of unsoundness of mind ? or why should the judge rule, as matter of law, that acting upon a belief, confessedly not in itself incapacitating, would invalidate the will ? But it was contended that the proposition was correct as applied to the issue cliarging undue influence. This leads us to the consideration of the rulings on this separate and distinct point. 878 TESTAMENTARY CAPACITY. The instructions on this head started with the assumption that the jury failed to find such insane delusion as would invalidate the will. If they did not find such insane delusion, the court said, " It is contended that if there was sanity, and no general or specific delusion to a degree suflicient to invalidate the will, yet that such a dominion or influence was obtained by others over the testatrix as to prevent the exercise of her own judgment, will, and wislies ; and that the will was, ia fact, not the expression of her own will and wishes and intention, but was substantially the act of others, and not of herself." The judge in substance said that such influ- ence, however exerted, would be undue, and would render the will niade under it void ; that it must be such and so exercised as in effect to destroy the freedom of the testatrix's will, so as to render "her act more the offspring of the will of others than her own, at least in some of the provisions of the will. He said : " A testator might receive the advice, opinions, and arguments of others ; and if after all such advice, requests, or per- suasions, however persistently or however strongly urged, the tes- tator is not controlled by them to the extent of surrendering his free agency and yielding his own judgment or will, and so, not making his own will, but adopting for his own will the will or wislies of others, — then there is no such undue influence as is required to be proved to avoid the will." There seems to be no exception to these rulings, so far as they apply to living persons. The rule as given is according to the most approved authorities ; but there remained the point, as to undue influence, connected with the alleged spiritual communica- tions. On this the judge said : " The question arises, if she was of sound mind generally, and if no living person did unduly influ- ence her, yet she may have been under the control and dictation of what she believed was the spirit of her deceased husband, com- municating to her directly tlirough a medium; and that to her it was a reality, and that her own will was subordinated to her hus- band's will, and that will was his and not hers. It is contended that this was a delusion, and an undue and improper influence. On this point I give you the same rule as before stated. If she did thus believe, and if she did have what she deemed direct communi- cations on the subject of this will, and implicitly followed them, yielding her own will and judgment, and exercising no free agency UNDUE INFLUENCE. 379 (as before explained), then it would not be her will, but another's, in the same manner as if actually dictated by a living person. But if she did thus believe, and had what she deemed her husband's opinions, wishes, or judgment, if she nevertheless acted her own will and her own judgment, as before explained, and did not aban- don both to the supposed wishes and opinions of her husband, then it would not be undue influence, although she might have had full faith in the supposed communications, and have regarded them as her liusband's advice. I give you the same rule, in short, as I gave as to living persons." We have made these full extracts, in order to present distinctly the exact point decided. It will be observed that the ruling on this point was entirely dis- connected from that relating to insanity or insane delusion. It proceeds on the ground that the testatrix was of sound mind, and that tliis matter of a belief in spiritual manifestations was not found by the jury to be an insane delusion. The appellant contends, that if any such communication had any influence, however slight or however short of dictation, on the mind of the testatrix, it would invalidate the will, although in all respects she was of sound mind. There is no doubt that the law allows any person to seelc advice, suggestions, and opinions from others where no fraud or deception is practised. The law does not limit tlie range. If a pious man of sound mind should seek advice by prayer, and should believe that lie had a direct answer, and should regard it not as dictation, but advice entitled to consideration, would any one say that his will would be set aside as made under undue influence ? Or if such a man should say, " I have had a dream which impresses me consid- erably as to the disposition of my property, and I shall give it con- sideration," would any one say his will was void, unless it was shown tliat the testator yielded his own will and judgment to the suggestions of his dream ? In this case, the widow, it is assumed, thought she liad received letters, not from an absent husband, but from one who had gone beyond this world to another, and in them some suggestions as to the disposition of her property. She did not yield implicitly and blindly to these suggestions, but regarded them as she would have regarded such letters if they had been written during life, as friendly suggestions, which had some effect on her mind, but not to the point of destroying her own free will and deliberate judgment. 380 TESTAMENTARY CAPACITY. Now it is evident that the judge must either direct the jury to disregard entirely all this matter about spiritual communications, as having no bearing on the question of undue influence, or rule that if they had the slightest influence on the mind of the testator in making her will, they entirely invalidated it; or else rule as he did, that they must be taken into consideration by the jury, and come under the general rule as to undue influence, and be sub- jected to the same test. If they dictated the will, it was void; if they influenced the mind, but did not control it in making tlie will, or any part of it, then the will would not be by them invalidated. Without pursuing this point at more length, we say that we do not find these instructions erroneous. There w6re several objections made, and exceptions taken in rela- tion, generally, to the admission or rejection of evidence. The first is, tliat the subscribing witnesses to the will were allowed to testify to their belief and opinion, as to the soundness of her mind at the time of executing tlic will. It is not denied, however, that such witnesses may so testify. But it is insisted that, to lay a foundation for such admission, all the facts transpir- ing at the time, all that was said and done, and all the premises from which the conclusion was drawn, must be stated. We do not so understand the rule or the practice. The rule admitting the opinion of witnesses to a will is somewhat excep- tional. It is thus stated in Greenleaf on Evidence : — " Witnesses to a will are permitted to testify as to their opinions which they formed of testator's capacity at the time of executing his will." It is the opinion then formed that is admissible. The precise point in the examination when the question is to be put is not material. It may be as soon as they have shown that they were present and witnessed the will at the request of the testator. It is the fact of being a witness to the will that gives this right to ask his opinion of the soundness of mind of the testator. It may be given, although the witness was suddenly called in and heard only the request to sign and the declaration of its being his last will. It is undoubtedly true that all the facts seen or known by the witness at the time are proper subjects of inquiry by either party, and it is proper they should be. But it is not legally neces- sary that all should be detailed by the witness, if not asked by either party, before he can give his opinion. The weight and value of his opinion may depend very much upon his means of observa- OPINION OP UNPROPESSIONAL WITNESSES. 381 tioii and knowledge ; and if he can give few grounds for his belief or opinion, his testimony would doubtless be of very little weight with the jury. But it is for the parties to bring out from the wit- ness such facts as they deem important touching the extent of knowledge on which the witness bases his opinion. The exceptions to the answers of Narcissa Stone and William G. Barrows are based on the assumption that they were expressions of opinions by non-experts. These answers were given in connec- tion with details of certain facts introduced by the appellees in refutation c^f the allegation of unsoundness of mind made by the appellant. They were both mere negations, — statements that they did not observe certain facts touching the mental condition of the testatrix ; i.e., one said she did not observe any failure of mind, and the other, — who was a witness to a former will, — that he observed nothing peculiar. The only objection in the argument is, that these were expressions of opinion on the question of testamentary capacity. The question, whether opinions of witnesses not experts are, in all cases where insanity or delusions are in question, to be excluded, has recently been much discussed, particularly in a learned opinion by Mr. Justice Doe of tlie Supreme Court of Nev Hampshire. If the case required it, we might, perhaps, review some of the former decisions of this court. But certainly nothing less than a distinct expression of the opinion of the witness, given as such opinion directly, comes within our rule. Mere negations, such as stated by these witnesses, do not give to the jury an affirmative opinion. They at most state negatively tliat nothing was observed by them. Tliis is not an opinion of the witness, but had relation to a fact as to the condition of the person. Tlie next exception is that the witness was not allowed to testify to the contents of a letter. A witness (the appellant) having tes- tified that her mother, the testatrix, when visiting her at tlie West, had received letters, — a good many from Maine, — wliicii made her uneasy and discontented, she was asked from whom they came. Tliis was objected to; the appellant, by her counsel, then offered to show that they were received from A. J. Stone and Mrs. Dennett ; but it was objected to, and the question ruled out. A similar ruling was made, when, after Mr. Kobinson had testi- fied that some communications were sent to Bloomington that were 382 TESTAMENTARY CAPACITY. injurious to liim and his family, on objection, the court ruled that the witness could not state the contents of the communications. No evidence was offered of the loss of the letters, or of any at- tempt to obtain them, by summons or otherwise. The rejection of this evidence was clearly within the well-established rule, that the contents of a written document cannot be given by a witness except in case of loss or inability to obtain it. Another objection has relation to the admission of the declara- tions of the testatrix, written and verbal, to show the state of her mind. ^ The report states " that the defendant (the appellant) seasonably made a general objection to all declarations, conversations, state- ments, and acts of Mrs. Green, which did not relate to the subject of spiritualism, or the execution of the will or codicil sought to be set up. The testimony was not thus limited by the court by a specific ruling to that effect, as requested ; but testimony was given, as appears in the report, " not limited as requested." Was it the duty of the judge thus to limit in advance, or at all ? The issue was a general one, — soundness of mind. The exec- utors had offered some testimony upon this point ; the appellant tlien offered a great mass of evidence, tending to show a want of soundness. This evidence was not confined to spiritualism or the execution of the will : it embraced evidence tending to show that Mrs. Green, not merely believed in spiritual communications, but that she entertained delusions of an extraordinary nature concerning her son-in-la* and his wife, particularly concerning Mr. Robinson. As before stated, there was a great deal of evidence on this mat- ter, covering many years and many declarations, acts, imaginations, and asserted delusions. And there was further evidence on a mat- ter not properly a part of a belief in spiritualism, as generally understood. It is thus stated in the charge : " But it is contended that she believed more than that simple proposition ; that she be- lieved that she had power to heal, aud to some extent exercised it at home and on others ; and that she believed it was the same sort of power that was employed by Christ and- his apostles. I suppose the same nature of the power possessed in those miraculous days ; and that she had various other imaginations, — delusions in one way and another." The appellant offered evidence on all these matters, which was DECLABATIONS OF TESTATRIX. 383 admitted, including spiritual communications and declarations of various kinds ; all admitted to show the state of the testator's mind, covering many years. The executors resumed and the judge permitted them to show like declarations, acts, beliefs, &c. There was no limitation sug- gested before the appellant put in this great mass of evidence. The issue was on tiie soundness of mind of the testatrix, and the court ruled that the burden to sustain this general proposition was on the executors, and that it did not shift, but remained on them to the end. Spiritualism and the due execution were not the only matters to be considered or rebutted. The great fundamental rule of law, which requires impartiality, would have been violated by the ruling requested, and it was prop- ei'ly refused. How far a party can be allowed to interpose objec- tions as to particular testimony under the general objection above may be questionable. But if open, we do not find on perusal of the report any admission which is clearly illegal; The rule allow- ing the introduction of the declarations of a testator to show the condition of his mind is very general, and admits much tliat would be excluded if offered as testimony to prove facts. The rule allows great liberality to both parties as to the kind of evidence and to the length of time over which it extends. Much is necessarily left to the discretion of the presiding judge, and it is impossible to lay down any general rules which would cover all cases. To enable the jury to determine the real state of mind, tlie action 'of that mind, as shown best by the conversations, declara- tions, claims, and acts, is the most satisfactory evidence. But, in order to fairly judge, the examination must not be confined to a single declaration or conversation, but must embrace sometimes many years and many different acts and declarations, and some- times, perhaps, the evidence may, at first view, be remote and far from a demonsti*ation. The judge was very decided and emphatic in his charge to the jury in enforcing upon them tiie fact that these declarations of Mrs. Green were admitted to show lier state of mind and of her feelings towards the parties, and whether or not they exhibited evidence of insanity, or delusion amounting to insanity-, at any time. " They are not to be regarded as proof that what she said to the witnesses, 384 TESTAMENTAEY CAPACITY. or wrote in these papers, were facts. They are not given on oath. They are not legal evidence of the facts stated." The judge re- peated and elaborated this idea, so that the jury must have under- stood the weight they could give to this species of evidence. The exception, however, as to this part of the case is, that the evidence was not confined to spiritualism and the execution of the will. We think it clear that it should not have been. The chief if not the only specification dwelt upon by tlie coun- sel is the written statement of Mrs. Green, which has annexed to it a jurat. The counsel is mistaken in saying that it was used as evidence of the facts tlierein stated. It was admitted expressly, — the same as much other evidence of a like character, — solely to show the state of mind of the testatrix in reference to the very matters in question. The jurat did not make it a deposition, or give it any greater force or effect. It was still the declaration of Mrs. Green, and the jury were charged distinctly not to regard it as proof of the actual existence of any fact. The rule given as to the burden of proof was clearly correct. The important question here presented is one which the courts will soon have to meet, rather more fully, we believe, than it is met here. That question is, how far a will, which is the direct and obvious offspring of assumed spiritual com- munications and influences, and is unjust to the heirs and next of kin, can be sus- tained in the courts ? For in the present case the will was the direct offapring of the testatrix's assumed communication with her husband, and of her belief in regard to her son-in-law being possessed of supernatural control over his wife and her conduct, and himself being under the immediate influence and control of evil spirits, all of which assumptions were false, in the view of the law. .De non apparentibus et non existentihus eadem est ratio. It does not seem to us that either the charge to the jury, or the opinion of the full court indorsing it, is calculated to afford much light upon the question above stated, and which is certainly involved in the case somewhere, and should have been understandingly solved, either by the court or by the jury, or by both. And this, in all humility, we submit, is not very clearly made to appear in this case. We recognize to the fullest extent the innate difficulty involved in the case. We know that, where freedom of religious opinion is indulged to such an extent, as with us, it is certainly unpopular, if not positively discreditable, for any public man, and especially a judge, to profess any clearly defined opinions upon any religious question, and especially to throw discredit upon the religious opinions of others ; in a country where such loose notions prevail, and are almost insisted upon, in regard to Christianity, at all events, it requires some firmness to attempt to defend any settled views in regard to spiritual influences and opin- ions. It is, we are glad to feel, entirely well settled, upon most unquestionable grounds, that mere speculative opinions upon these questions, however singular MODERN SPIRITUALISM. 385 or absurd, in the common judgment, will not afifect the validity of wills made by- such persons. But when the will is unjust and unreasonable to the last degree, and is the direct offspring of a belief which has no existence in fact, so far as all human testimony goes, can it be maintained ? If it can be, the public cer- tainly ought to know, and clearly understand upon what grounds. The opinions entertained by the testatrix, and upon which she confessedly acted in making her will, are as clearly delusions, according to all human testimony, as any which the inmates of bedlam ever entertain. But it is argued they may not be insane delusions. The only difference which the law recognizes between delusions and insane delusions is, that the former are produced by error or mistake, either in fact or judgment, while the latter result from a false perception of the mind, and cannot be cured or dispelled by any amount of evidence or argument addressed to the mind while in this unsound state. But the unsound state of the mind is only an inference or presumption arising from the fact that it assumes to believe in the existence of things, not only contrary to the common experience of mankind, but without the slightest evidence in favor of their existence, and also that it refuses to yield this belief, either to evidence or argument. Tried by these tests, it seems difficult to argue that the opinions of the testatrix were not insane delu- sions. They are precisely such opinions as all insane persons have, more or less, and they generally, or not infrequently, at all events, culminate in settled and confirmed insanity. We cannot comprehend why the opinions entertained by the testatrix were any different, in kind, from those entertained by lunatics who con- ceive themselves to be the creator of the world, or the final judge of all men, and such delusions are common. And no one has ever hesitated to characterize such opinions as insane delusions. All opinions which are incredible in themselves, because contrary to the general course of human experience, and which, never- theless, are entertained and acted upon by any one in matters of importance, and in a manner which the law will not countenance, tfhere there is no evidence of their correctness, and no argument will dispossess such persons of them, must be regarded as insane delusions. For, as already stated, the want of evidence of truth the law regards as evidence of falsity : de non apparentibus et non existentibus, etc. There is no controversy with any one for entertaining such opinions, or for acting upon them, within the limits which the law allows as harmless. But whoever assumes to justify such conduct as the law does not countenance, upon the basis of such opinions, will be likely to find a resting-place in an asylum for the insane. If the testatrix in this case, instead- of making a will to virtually disinherit her only daughter and her husband, under the dictation of these spiritual delusions, had seen fit to take the life of her son-in-law, on the ground that her spiritual adviser had made known to her that he ought not to live, would any one have entertained the slightest doubt of her insanity ? And is she any the less to be so regarded because the spiritual dictation only led- her to deprive him of his fair expectations from her property, according to his relation to the testatrix ? The argument, or the finding of the jury, if they understandingly found any thing, that the testatrix is not shown to have been led, contrary to her own choice, by these spiritual communications, and that this the law will not regard as undue influence, all goes upon a false assumption, that this is a kind of influ- ence which the law recognizes, within certain safe limits. But this i^ a misappre- hension. The law does, indeed, recognize the influence of valid legal relations 25 386 TESTAMENTARY CAPACITY. among the living ; and, when such influence is not carried to the extent of produc- ing an unjust result, does not condemn it. But when such influences even, produce any result which the law condemns as unequal and unjust, the law will not uphold it. And the law condemns, especially, unequal and unjust wills, produced through the influence of relations which it does not recognize. The influence of all un- lawful relations it suspects and condemns, so far as it produces unequal or unjust results. It does this upon the principle that, when the parties so much desire unlawful relations as to form them in the face of, or in defiance of, the public sentiment, it is fair to presume such relations will naturally have a controlling efiect upon the parties, when they are ready to sacrifice so much to enter into them. This question is expressly decided, in regard to merely earthly relations, in Dean v. Negley, 41 Penn. St. 812, post, p. 439 ; and is considered in Monroe v. Barclay, 17 Ohio, n. s. 302, post, p. 442, and in Rudy v. Ulrich, 69 Penn. St. 177. So that, either upon the ground of monomania, or undue influence, it seems the jury might lawfully have set aside the will, and, therefore, should have been so charged in the principal case as not to have upheld it. We should not be surprised to have persons, sincerely believing in this kind of spiritual delusion, talk as if it were a new revelation, and complain of not being fairly represented in the views we have thus far expressed. But they are certainly laboring under great misapprehension, if they seriously intend to have us believe that there is any thing new in the pretensions of modern spiritualism. It is as old as the authentic history of the world, and has existed, in different forms and under different names, in almost every country, civilized or barbar- ous, throughout the habitable world. The particular form of it presented in the principal case, that of communication with the spirits of those whose bodies have ceased to exist here, has been found in different countries hundreds and thou- sands of years before the testatrix came into this life. It existed in Greece under the name of necromancy or divination, through the answers of the dead, from the days of Homer, and was often resorted to in order to raise the shades of the departed ; and it was practised to a large extent in the Grecian temples. And there seems to be no question that it was practised in Egypt, and in Persia, and throughout the East, at a very early day, and before the civiliza- tion of Greece. And divination had become so much a received portion of the Koman culture, that Cicero made it the subject of one of his formal treatises, extending over more than fifty pages, in which the learned author argues in favor of its existence, but against its being resorted to except in extreme cases. His definition is worth quoting : " Talium ergo rerum, quae in fortuna positse sunt, prsesensio, divinatio est." The foreknowledge of those things only which are fortuitous, or in the power of fortune, is divination. He enu- merates seven forms of divination in his De Divinatione, Lib. 2, c. 6, by splitting the liver of victims, the song of the crow, the flight of the eagle, the shooting of a star, stellce irajectio, the utterances of the insane, voces furen- tium, the lot, sortes, and dreams, somnia. He declares it magnifica quidem, el res salutaris, a magnificent and salutary thing, indeed, si modo est ulla, if there be any such thing, thus showing very clearly that, while he was not prepared to deny its existence, he was willing, while praising its character, to imply doubt of its CKistence, and to discourage its exercise. We may all say the same of spiritual- ism. It is, indeed, a wonderful thing, if it exist at all ; but it seems to be useless MODERN SPIRITUALISM. • 387 and misleading, and cannot be recognized in the law without satisfactory proof of its existence and agency, which seems difficult, if not impossible. It has been the occasion of much discussion in all ages, and has found some believers among the wise and learned in all periods of the world. Its name is legion. Harpies, fairies, elves, apparitions, ghosts, augurs, soothsayers, witches, sprites, hobgob- lins, &c. Justinian, Codex, Lib. ix. tit. 8, c. 1, 2, 3, 5, 6, 7, 8, prohibited " the unlawful curiosity of prying into futurity," and condemned the ars mathematica, or divination, under the severest penalties. The Christian Church, from the first, held that, by the advent of Jesus Christ, all spirits of divination were for ever superseded and rendered unlawful. Hence witchcraft, the modern name for all forms of divination, has been by the church ascribed to the agency of evil spirits, and visited with the severest punishment, even of death itself in the most appal- ling forms, and thousands have suffered the penalty for that crime in most of the European countries. These penal enactments were not repealed in England till Stat. 9 Geo. II. c. 6, nor in France till the time of Louis XIV. The execution of witches continued in Scotland till 1722. The frequency of executions grew in number from year to year so long as its punishment was allowed, and the offences multiplied by the severify of the punishments. And the same facts were shown by the short experience in this country, during which a score or more of persons suffered death for witchcraft, proved sometimes by their own confessions, which were not less persistent than the testimony of the Christian martyrs, and grew bolder in proportion to the severity of the persecution. We have no occasion to pursue this painful history of delusion. We are thankful now that, if men have not attained sufficient light to comprehend the fallacy of such pretensions, they have, at least, become too forbearing to persecute others for the folly of entertaining such delusions. We think the courts will feel compelled to purge the law, from all such pretensions, where the invisible spirits assume to exercise control over the minds and free-will of testators in the performance of testamentary acts. A testament which is the result of spiritual dictation is not the free and unbiassed act of the testator. And whether we call it the offspring of insane delusion or undue influence, is not, perhaps, very important. In either case the free-will of the testator is equally involved. The idea that the testatrix might consult the spirit of her deceased husband in regard to the provisions of her will, and at the same time act her own judgment and discretion, seems to us an entire misapprehension of the ordinary effect of such revelations from the spirit world. The believers in such revelations com- monly, if not always, feel themselves entirely incapable of going counter to their dictation. In this respect they are exactly in the position of the insane, who be- lieve themselves under the influence of spirits. They become, either willingly or unwillingly, commonly the former, the complete slaves of such influence. Can it, then, fairly be submitted to an ordinary jury to find whether souls, still bound by terestrial influences, will be capable of weighing with discretion and impartiality the exact deference to be justly given to the messages from the heavenly world ? To determine such a question, we must have either a special jury or the testimony of experts conversant with such topics. We submit that, until the latter desidera- tum is attained, there is no propriety in submitting such a question to a common jury, aided by none except superhuman evidence. We think the request of the appellant upon this point, that if these spiritual communications had any 388 TESTAMENTARY CAPACITY. the slightest influence upon the mind of the testatrix in producing an unequal and unjust will, it cannot be upheld. The learned judge well says that the law allows testators to seek assistance in making their wills from the advice and sug- gestions of others, and he seems to infer that this will surely extend to the answers which a Christian man may suppose he obtains by devout prayer. That must depend upon the nature of the influence exerted by such answers, of which the law must judge through the court and jury. The law will not undertake to pass upon any question of the efficacy of prayer ; surely not to deny it, in face of so many assurances " from proofs of holy writ." But the law cannot surrender its responsibility to the theologians, altogether, even upon theological questions. While it recognizes the possibility of direct aid'in answer to prayer, it assumes to know, for certainty, that no answer to prayer is useful, or safe to be followed, unless it come from a beneficent being ; and that no such being will ever give any response which will by possibility exert an influence to produce a wicked and unjust result. If, therefore, the Christian claims to be directed in his testamentary act by the answers to his prayers, he must see to it that such act is not unnatural or unjust ; for if it be so, and it be the offspring of the answer to the testator's prayers, the conclusion is inevitable- that the prayer must have been addressed to a malicious being. And this is not with- out precedent, even among Christians. The early sects held the most absurd doctrines, sometimes even the lawfulness of propitiating the Evil One by devotion. And the Scriptures give countenance to the belief that Satan may transform him- self into an angel of light, and that, if it were possible, even the very elect might be deceived and led astray by him. The law, then, which has no capacity, and no instruments or machinery for dealing with such subjects, except in a common- sense and practical manner, is compelled to judge, by the fruits, of the nature and source of the influence. We are assured by high authority that a good tree can- not bring forth evil fruit, neither can a corrupt tree bring forth good fruit. We must conclude, therefore, that an influence proceeding from a good being cannot produce a bad will ; that it must be an evil influence — what the law denomi- nates an undue influence — to produce such a result. It is impossible that a good spirit, by any direct agency or influence, should be the author of evil. We may be allowed to say a word in regard to the fundamental error in the trials for witchcraft in New England and elsewhere. It was in recognizing the legal force and validity, in a court of justice, of what has been called the " spec- tral testimony," or the testimony of the spirits. Aside from that, there was not the slightestevidence of the existence of any witchcraft, or what the law denominates the corpus delicti, without the independent proof of which the confessions of the accused, ever so voluntarily made, could avail nothing towards conviction. It was through the overpowering pressure of the most highly cultured men of the time — such men as the Mathers, father and son — that the courts were induced, in the first instance, to accept the accusations, of those professedly possessed, against others, through whose agency they claimed to be thus brought under the power and control of Satan. This testimony of the possessed, as to the agency by which it was effected, was much in the nature of the declarations of the testatrix in the principal case, as to the communications from her deceased husband, or as to the fact that her son-in-law was under the control of evil spirits. It is not a kind of testimony which the law can recognize, inasmuch as it has no capabilities MODERN SPIRITUALISM. 389 or instrumentalities whereby to deal with it. It is, in its very nature, above and beyond the domain of human agency or e per ence, and, there ore, inca|,a ile of' affording conviction to minds having no knowledge or experience in such matters. The moment the courts, having jurisdiction of the trial of those accused of witch- craft in the vicinity of Salem, resolved to withdraw all countenance from the accusations of the possessed, or of those claiming to be so, the prosecutions fell to the ground ; and what seemed more wonderful, the accusations also ceased, and witchcraft gradually faded out of sight and memory. It is now the rejection of this ' ' spectral testimony " which the courts are called upon to enforce in regard to the pretensions of spiritualism. And unless that is done, we may soon be in the way to have in court as arrant delusions on that subject as ever prevailed during the time of the Salem witchcraft. Men love mystery, and are ready to accept a kind of evidence, in favor of spiritual manifestations, which would fail to afford them any satisfaction in plain matter-of-fact occurrences upon any sub- ject within the domain of human experience. It may be thought our theory of insane delusion, upon the subject of spiritual manifestations, will involve too large a number of prudent and sober-minded per- sons, upon ordinary subjects, to adm t of full recognition. The number involved will afford no evidence against the position of being under delusion, provided the testimony is satisfactory to show the ft c;.. There is no fact more certain than that these delusions, after gaining a cerrp.i i currency, become positively epidemic. That is every day's experience in regard to suicides in the large cities, and some- times in remote and sparsely settled districts, where the fact, and even the mode of suicide, are repeated and copied for long periods. Novelty and mystery have wonderful attraction for large bodies of persons, engaged in similar pursuits. Every one is eager to discover and disclose some new form of the enterprise, till the more absurd the pretensions the more surely it secures believers. We suppose all we have said will only tend to whet the depraved appetite of those involved in the delusion, and to invite others to join them ; but it seemed incumbent to attempt to define, if we could, more precisely than is attempted in the principal case, the just limits of the recognition which the law gives to the pretensions of merely " spectral testimony," and how far it recognizes as valid and lawful any influence which is claimed to come through such agencies, when applied to produce an unjust and inequitable result. If we have made ourselves understood, it is all we desire. Delusions upon other subjects, connected with the recognized forms of Chris- tianity, are not of infrequent occurrence. The public prints inform us of a recent case, before one of the probate courts in Wisconsin, where a lady gave the principal portion of a large estate to a Roman priest, as " remuneration f jr saying masses for her departed soul ; " just as Henry VIII. of England gave large sums to the Dean and Canons of Windsor for saying masses for his soul, — if he had any, which his conduct did not always disclose. And as we have no statute similar to the English siatute aga nst s r erstitious uses, these cases will have to be decided upon general principles ; and we should be surprised if wills, based upon even the influence of the living, in providing the means of escape from purgatory, under the delusion, so far as human testimony goes, that the souls of the de- parted are confined in limbo until delivered by the oblations and prayers of the faithful here in life, could be upheld in our courts. And we should blush to feel 390 TESTAMENTARY CAPACITY. that a superstition, like modern spiritualism, of a confessedly pagan character, should be treated with more favor in the courts than one which has been main- tained in the most important branch of the Catholic Church for many centuries, although we believe them both fallacious, and unworthy of rational Christians, or even cultivated Pagans. And we trust the Roman Church, which is becoming very numerous and influential in this country, and, in most respects, in a right direction, will have the discretion to keep such questions out of the courts. If they do not, we shall regard them as pursuing a course of conduct not in keeping with their usual reputation for wisdom and discretion. At all events, the law of the civil courts can take no cognizance of such pretensions, or of wills which are their direct and obvious offspring, since there is no evidence, which the law can recognize as satisfactory, of the existence of the Roman purgatory, or of the necromancy of modern spiritualism. It may be said that our argument makes religious fanaticism a species of monomania ; and so it does, perhaps. And in the apprehension of the law, which only takes cognizance of material facts, it probably is, according to the usual definitions, and when it is resorted to, as the justification for crimes or injustice, we should hope the law will brand it with the seal of its severest condemnation. PART II. FRAUD OR UNDUE INFLUENCE IN THE PROCUREMENT OF WILLS. PART II. FRAUD OR UNDUE INFLUENCE IN THE PROCUREMENT OF WILLS. I. Burden op Pkoop. The Massachusetts court, in Baldwin v. Parker, 99 Mass. 79, clearly hold that where the contestants attempt to defeat the will, on the ground that it was obtained by fraud and undue influence, the burden of proof is upon them ; and they attempt to distinguish this case from that of insanity, or mental incapacity. One would suppose they were identical in regard to the burden of proof; and so, no doubt, would this court have held, were it not for the error into which it had fallen in requiring the executor to give evidence, in the first instance, of the mental competency of the testator to execute the will. But lest we should overstate the difficulty of distinguishing the burden of proof between insanity and undue influence, we give the opinion of the court upon the point. Baldwin v. Parker, 99 Massachusetts Jteports, 79. 1868. Opinion of the court by — Hoar, J. The other question reserved tipon the report is of more difficulty and importance. It is the question. Upon whom is the burden of proof upon the issue of undue influence ? The claim on the part of the appellants is, that the party propounding the will is bound to prove that it is the will of the testator, and not of some other person operating upon and through him. On the other hand, the executors contend that when the execution of the instru- 394 UI^DUE INFLUENCE AND FRAUD. ment and testamentary capacity are established, nothing more is required by law to be shown affirmatively ; and that, to avoid an instrument for fraud or duress, they must be proved by him who alleges them. In support of the former view it is argued that the issue upon the probate of a will is substantially a single one, to prove that the instrument was freely executed, according to the forms required by law, by a testator of sound mind ; and that, whatever presumptions may exist upon any part of this issue, the burden of proof does not shift. The question is certainly not without difficulty, and the authori- ties upon it aire very conflicting. It is settled in this common- wealth that on the issue of sanity or testamentary capacity the burden of proof is upon the party that offers the will for probate; and that tlie presumption of sanity does not shift the burden upon the opposing party. Crowninshield v. Crowninshield, 2 Gray, 524 ; Baxter v. Abbott, 7 Gray, 72. The burden is undoubtedly on the same side to prove the formal execution of the instrument, and that the testator executed it as and for his last will. The objection to a will that it was obtained by undue influence is not one which it is easy to define with precision. The term seems to include both fraud and coercion. Sir John Nicholl defines it to be that degree of influence which takes away from the testator -his free agency ; such as he is too weak to resist ; such as will render the act no longer that of a capable testator. Kinleside V. Harrison, 2 Phillim. 551. Where influence has been exerted upon a person of feeble mind, or whose faculties are impaired by age or disease, it is not always easy to draw the line between the issues of sanity and of. undue uifluence. So it is possible that in many cases the coercion might be such as to be available to set aside the will on the ground that it had not been executed by the testator. But where the issue of undue influence is a separate and distinct issue, involving proof that the testator, though of sound mind, and intending that the instrument, which he executes with all the legal formalities, shall take effect as his will, was induced to execute it by the controlling power of another, we think the weight of authority and the best reason are in favor of imposing upon the party who alleges the undue influence the burden of proving it. And we are inclined to think that this has been the general practice in this commonwealth. Glover v. Hayden, 4 Gush. 580. BURDEN OP PROOF. 395 The most recent decision in the Court of Appeals in the State of New York upon tlie question is to the same eflFect. Tyler v. Gard- ner, 35 N. Y. 559. All the judges concurred upon this point, though they differed upon others arising in the case. The decision in Crowninshield v. Crowninshield, and in Bax- ter V. Abbott, ubi supra, that the burden of proof is upon the party propounding the will to establish the sanity of the testator, although the presumption of law is in favor of saijity, is placed very much upon the construction of the Statute of Wills, which makes the sanity of the testator a condition precedent to his power to make a will. But when all is proved that the statute requires ; when a testator of sound mind has intentionally made and pub- lished a will according to the forms of law, his will is as much a legal conveyance and disposition of his property as any other lawful instrument of conveyance. It may be impeached or made invalid by proof of fraud, duress, or undue influence, which have caused it to contain provisions which he has been wrongfully induced to insert in it ; but so may a deed or other contract be impeached for the like reason. Tlie defence of duress or fraud, when made in avoidance of a deed, is required to be specially pleaded, and is not good under the issue of non est factum. The reason seems to be that the instru- ment is voidable, and not void ; it is the deed of the maker of it ; and, if he would avoid it, lie is called upon to prove the existence of facts which will authorize him to do so. Yet the issue of fraud or duress involves the question whether the deed was ever obliga- tory, as much as the same issue does the original validity of a will. It is true that the distinction between a voidable and void act has no precise application to a will ; because a will is in its nature revocable, and may be set aside by a testator at his pleasure. But the question whether a will is his free act, the product of his own volition and not of another's, is essentially the same as in the case of a contract ; and there is no positive statute rule to make a difference in this respect. It was said by Baron Parke in Barry v. Butlin, 1 Curteis, 638, and the observation was quoted with approbation by Mr. Justice Thomas, in Crowninshield v. Crowninshield, " tiiat the onus pro- bandi lies in every case upon the party propounding a will ; and he must satisfy the conscience of the court that tlie instrument so propounded is the last will of a free and capable testator." 396 UNDUE INFLUENCE AND FRAUD. This statement, though apparently supporting the doctrine that the burden of proof on the issue of undue influence is on the party propounding the will, we do not feel sure was so intended. Tiie case was tried upon an allegation by the executors pro- pounding the will, and upon allegations of the heir setting up that it was obtained by undue influence. The question discussed by Baron Parke upon the burden of proof was upon the point, whether if it appeared that the will was prepared by a person, who took a benefit under it, it made a presumption and onus probandi against the will, and required proof that the contents of the will were known to the testator. He says, " If it is intended to be stated, as a rule of law, that in every case in which the party preparing the will derives a benefit under it, the onus probandi is shifted, and that not only a certain measure, but a particular species of proof is therefore required fi'om the party propounding the will, we feel bound to say that we conceive tlie doctrine to be incorrect. The strict meaning of the terra onus probandi is this, that if no evidence is given by the party on whom the burden is cast, the issue must be found against him." " In all cases this onus is imposed on the party propounding a will ; it is in general discharged by proof of capacity and fact of execution ; from which the knowledge of and assent to tlie con- tents of the instrument are assumed, and it cannot be that the simple fact of the party who prepared the will being himself a legatee is in every case, and under all circumstances, to create a contrary presumption, and to call on the court to pronounce against the will unless additional evidence is produced to prove the knowledge of its contents by the deceased." He concludes that it amounts only to a circumstance of suspi- cion, calling for care in the court, and calling on it not to grant probate without entire satisfaction that the instrument does express the real intentions of the 'deceased. Tlie whole result of the reasoning would seem to be, that upon the separate issue of undue influence the burden of proof is upon the party alleging it ; and that it does not shift upon the party having the general burden of establishing the will, upon the mere introduction of evidence of a single circumstance of suspicion. If no evidence were offered on either side, the allegation of undue influence would fail. In the language of Chief Justice Mellen, " the law requires proof of facts ; especially when the object is to DECLARATIONS OP THE TESTATOR. 397 destroy and set aside an act apparently deliberate, and executed with all usual and legal formalities." Small v. Small, 4 Greenl. 22-4. The view which we have taken of the English doctrine on the subject is confirmed by a recent decision in the House of Lords, Boyse v. Rossborough, 6 H. L. Cas. 2. In that case, p. 49, Lord Cranworth says : " One point, however, is beyond dispute, and that is, that where once it has been proved that a will has been executed with due solemnities by a person of competent under- standing, and apparently a free agent, the burden of proving that it was executed under undue influence is on the party who alleges it. Undue influence cannot be presumed." The rule which was adopted at the trial seems therefore to us to be correct in principle, and supported by authority, as well as obviously the most convenient in practice ; and none of the ob- jections to the probate of the will can be supported. II. Evidence Admissible to prove Fraud or Undue Influence. The following opinion embraces many of the points more com- monly involved in the trial of causes affecting the validity of wills, where it is alleged, by the contestants, that the execution of the instrument was induced by fraud or undue influence ; and they are presented in a manner very favorable to the clear understand- ing of the questions involved. 1. Shailer v. Bumstead, 99 Massachusetts Reports, 112. 1870. In the trial of questions in regard to wills, claimed to have been obtained by fraud or undue influence, the declarations of the testator, made either befoi-e or after the execution of the instrument, but so near the time as to afford ground of inference that the same state of mind existed as at the time of the execution, are receivable in evidence, as tending to show the mental capacity and condition of the testator at the time of the execution. But such declarations are not evidence to show the fact of fraud or undue influ- ence in obtaining the will, but only to show a state of mind peculiarly sus- ceptible to the influence of extraneous agencies. How far such declarations, from their terms and character, and the nearness of the time of their utterance to that of the execution of the will, may be said UNDUE INFLUENCE AND FRAUD. to have any fair and just tendency to show incapacity in the testator to resist the influence of attempts to draw him into the devices of those who are at- tempting to obtain an unjust control of bis freedom of action in the matter, must be left to the discretion of the court presiding over the trial. It is impossible to give any definition, which would be found applicable in the majority of cases even. Declarations made after the execution of a will claimed to have been obtained by fraud or undue influence, where they import satisfaction with the provi- sions of the will, when the testator is not under any such influence, may be received, as tending to show that the instrument conformed to the unbiassed wishes and feelings of the testator. So also declarations of dissatisfaction with the will, made at any time after its execution, may be received, as tend- ing to rebut any effect the mere continuance of the will in being, with the knowledge of the testator, might have in showing satisfaction with the same on his part. Declarations tending to show ignorance in the testator of the contents of the will may be received. [But should they not be such as show ignorance in fact of such contents, and not merely professed ignorance?] The declarations of the executor, or of legatees under the will, are not admis- sible to show its invalidity, since such persons are not, in the strict and tech- nical sense, parties to the suit, either sole or jointly with others. The facts suflTiciently appear in the opinion of the court by — Colt, J. Several questions arising upon the admission and rejection of evidence at the trial are presented by this report. One of the most important, whether we regard its practical conse- quences, or the apparent, and to some extent real, conflict of authority, relates to the admissibility of the declarations of the testatrix made after the execution of the will. Such declarations were offered to sustain the allegations of fraud and undue influ- ence, and ignorance of its contents, and were excluded. That the instrument which contains the testamentary disposi- tion of a competent person, executed freely and with all requisite legal formalities, mu§t stand as the only evidence of such disposal, is generally conceded. Such a will is not to be controlled in its plain meaning by evidence of verbal statements inconsistent with it, nor impaired in its validity and effect by afterthoughts or changes in the wishes or purposes of the maker, however distinctly asserted. It is to be revoked only by some formal written instru- ment, some intentional act of destruction or cancellation, or such change of circumstances as amounts in law to a revocation. Any invasion of this rule opens the way to fraud and perjury ; promotes controversy ; destroys to a greater or less degree that DECLARATIONS OP THE TESTATOR. 399 security which should be afforded to the exercise of the power to control the succession to one's property after death. But the rule assumes that the will sought to be aifected has once had a valid existence. It is always liable to be impeached by any competent evidence that it was never executed with the required formality, was not the act of one possessed of testamentary capacity, or was obtained by such fraud and undue influence as to subvert the real intentions and will of the maker. The declarations of the testator accompanying the act must always be resorted to as the most satisfactory evidence to sustain or defend the will whenever this issue is presented. So it is uniformly held that the previous dec- larations of the testator, offered to prove the mental facts involved, are competent. Intention, purpose, mental peculiarity and condi- tion, are mainly ascertainable through the medium afforded by the power of language. Statements and declarations, when the state of the mind is the fact to be shown, are therefore received as mental acts or conduct. The truth or falsity of tlie statement is of no consequence. As a narration, it is not received as evidence of the fact stated. It is only to be used as showing what manner of man he is who makes it. If, therefore, the statement or decla- ration offered has a tendency to prove a condition not in its nature temporary and transient, then, by the aid of the recognized rule, that what is once proved to exist must be presumed to continue till the contrary be shown, the declaration, though prior in time to the act, the validity of which is questioned, is admissible. Its weight will depend upon its significance and proximity. It may be so remote in point of time, or so altered in its import by subse- quent changes in the circumstances of the maker, as to be wholly immaterial, and wisely to be rejected by the judge. Upon the question of capacity to make a will, evidence of this description is constantly received ; and When the issue is one of fraud and undue influence, it is equally material. The requisite mental qualification to make a will might exist, and be entirely consistent with such a degree of weakness, or such peculiarity, as would make the party the easy victim of fraud and improper influence. Tlie evidence is here offered only to establish the allegations of ignorance of the will, and of fraud and undue influence. The verdict of the jury at a former trial having established, beyond controversy now, that the will was made by one in possession of 400 UNDUE INFLUENCE AND FRAUD. the requisite testamentary capacity, its admissibility is to be con- sidered only upon the remaining issue. ^ To establish the charge of fraud and undue influence, two points must be sustained : first, the fact of the deception practised, or the influence exercised ; and, next, that this fraud and influence were effectual in producing the alleged result, misleading or over- coming the party in this particular act. The evidence under the first branch embraces all those exterior acts and declarations of others used and contrived to defraud or control the testator; and under the last includes all that may tend to show that the tes- tator was of that peculiar mental structure, was possessed of those intrinsic or accidental qualities, was subject to such passion or prejudice, of such perverse or feeble will, or so mentally infirm in any respect as to render it probable that the efforts used were successful in producing in the will offered the combined result. The purpose of the evidence in this direction is to establish that liability of the testator to be easily affected by fraud or undue influence, which constitutes the necessary counterpart and comple- ment of the other facts to be proved. Without such proof, the issue can seldom, if ever, be maintained. It is said to be doubtful whether the existence and exercise of undue influence does not necessarily presuppose weakness of jnind, and whether the acts of one who was in all respects sound can be set aside on that ground in the absence of proof of fraud or imposition. And it is certain that, however ingenious the fraud or coercive the influence may be, it is of no consequence, if there was intelligence enough to detect and strength enough to resist them. The inquiry is, of course, directed to the condition at the date of the execution of the will ; but the entire moral and intellectual development of the testator at that time is more or less involved ; not alone those substanrtive and inherent qualities which enter into the constitution of tlie man, but those less permanent features which may be said to belong to and spring from the afiections and emotions, as well as those morbid developments which have their origin in some physical disturbance. All that is peculiar in temperament or modes of thought, the idiosyncrasies of the man, so far as susceptibility is thereby shown, present proper considera- tions for tlie jury. They must be satisfied, by a comparison of the will, in all its provisions, and under all the exterior influences which were brought to bear upon its execution, with the maker of DECLAEATIONS OF THE TESTATOR. 401 it as he then was, that such a will could not be the result of the free and uncontrolled action of such a man so operated upon, before they can by their verdict invalidate it. As before stated, the previous conduct and declarations are admissible ; and so, by the weight of authority, and upon principle, are subsequent declarations, when they denote the mental fact to he proved. For, by common observation and experience, the existence of many forms of mental development, especially that of weakness in those faculties which are an essential part of the mind itself, when once proved, imply that the infirmity must have existed for some considerable time. Tlie inference is quite as conclusive that such condition must have had a gradual and pro- gressive development, requiring antecedent lapse of time, as that it will continue, when once proved, for any considerable period thereafter. The decay and loss of vigor wiiich often accompanies old age furnishes the most common illustration of this. It is diffi- cult to say that declarations offered to establish mental facts of this description are of equal weiglit, whether occurring before or after the act in question. But if they are equally significant, and no more remote in point of time, they are equally competent, and may be quite as influential with the jury. The difficulty in the admission of these subsequent statements of the testator has been, that, while competent for the purpose above indicated, they are not, by the better reason and the most authoritative decisions, admissible to establish tiie fact of fraud and undue influence as one of the constituent elements of the issue. Wlien used for such purpose, they are mere hearsay, which, by reason of the death of the party whose statements are so offered, can never be explained or contradicted by him. Obtained, it may be, by deception or persuasion, and always liable to the infirmities of human recollection, their admission for such purpose would go far to destroy the security which it is essential to preserve. The declaration is not to be wholly rejected, however, if admissible on other grounds ; and it must be left to the judge carefully to point out how far it is to be rejected or received as evidence by the jury. Ordinarily we should expect more or less evidence of the prior existence of those peculiarities which the subsequent declarations give evidence of; and in the reported cases tliis will generally be found to be so. It is not necessary to decide whetlier, in the entire absence of such evidence, subsequent declarations would 26 402 UNDUE INFLUENCE AND FRAUD. ever be competent. Wliere a foundation is laid by evidence tend- ing to show a previous state of mind, and its continued existence past the time of the execution of the will is attempted to be proved by subsequent conduct and declarations, such declarations are admissible, provided they are significant of a condition sufficiently permanent, and are made so near the time as to afford a reasonable inference that such was the state at the time in question. The doctrines thus stated are maintained by the current of English and American authority. In Provis v. Reed, 5 Bing. 435, the statements of the testator which were offered were regarded by the court as offered to prove specific acts of fraud and improper influence. The distinction here suggested does not seem to have been required in the case, and such statements were emphatically declared inadmissible, by Best, C. J., as rendering useless the precaution of making a will. The same doctrine is recognized, and the principle discussed, in Marston v. Roe, 8 Ad. & El. 14, where Tindal, C. J., goes some- what fully into the matter, although the precise question was upon the revocation of the will. In New York, in the case of Jackson v. Kniffen, 2 Johns. 31, the point was raised and decided ; and the statement of the testator, that he had executed the will by force and for fear of being mur- dered, was rejected. The distinction taken in the more recent cases between such proof of exterior facts and such proof of mental status is not alluded to. And Spencer, J., in liis dissenting opinion, favors the admission of the declarations, on the ground that they were the declarations of the sole party in interest at the time, because no one else could have an interest in a will, living the testator. The whole matter is discussed more fully, and the distinctions accurately pointed out, in Waterman v. Whitney, 1 Kernan, 157. Subsequent declarations, inconsistent with the ■will, in connection with other evidence tending to prove want of mental capacity, are held by Selden, J., and a majority of the court, to be competent, upon a full review of the decisions. In Connecticut the same rule prevails, and was stated in Corn- stock V. Hadlyme Ecclesiastical Society, 8 Conn. 254. In Vermont, in the case of Robinson v. Hutchinson, 26 Yerm. 47, where the question is fully considered, Isham, J., says : " We do not perceive any serious objection to the admission of this tes- timony, under that limitation, when tlie declarations were made so DECLARATIONS OF THE TESTATOB. 403 near the time of the execution of the will that a reasonable conclu- sion may be drawn as to the state of mind of the testatrix at the time the will was executed. Weakness of mind arising from advanced age, in connection with causes suggested in this case, is progressive and permanent in character. It exists in the mind itself, and therefore it is that weakness of mind at the time of making the will may be inferred from weakness subsequent, as much so as imbecility of mind under similar circumstances." In Moritz v. Brough, 16 S. & R. 403, the Supreme Court of Pennsylvania held declarations admissible to show mental condi- tion. See also McTaggart v. Thompson, 14 Penn. St. 149, 154. In the recent case of Boylan v. Meeker, 4 Dutclier, iJ74, the whole subject is discussed. The issues there were, incapacity, forgery of the will, fraud practised by inducing signature to a paper without knowledge that it was a will. The court say that upon a review of the case no doubt can be entertained of the testa- tor's capacity. The contestants relied on the conduct and declai'- atious of the testator to show that he never knew afterwards of the existence of the will, and therefore could not have knowingly exe- cuted the paper. It appears that the declarations were offered on the broad ground that, even if the testator had testamentary capac- ity, yet he never executed the will, because of his declared igno- rance of any such paper. In the discussion of the case, the court seemed to regard ignorance of a fact existing at any particular time as not evidence of a state of mind in any sense affecting its capacity. But, however this may be, the whole case clearly recog- nizes the admissibility of subsequent declarations to prove mental condition, and is in harmony with the main current of authority. The declarations were held incompetent in that case, but it was upon the ground tliat the evidence was offered to support the act of fraud charged, and had no tendency to establish mental con- dition. Two cases in North Carolina are apparently in conflict with these authorities. Reel v. Reel, 1 Hawks, 248 ; Howell v. Barden, 3 Dev. 442. In the first of these, the court follow and approve of the dissenting opinion of Spencer, J., in Jackjsou v. Kniffen, supra ; and, in the last case, the court, by Buffin, J., declare themselves bound by the former decision. It does not appear what were the precise declarations in this case ; but in Reel v. Reel, in connection with the evidence that the mind of the testator had been greatly 404 UNDUE INFLUENCE AND FRAUD. impaired by previous habits of intoxication, and had been weak from his youtli, the declarations admitted may be held competent, without overruling Jackson v. Kniffen. See also Cawthorn v. Haynes, 24 Missouri, 236 ; 3 Lead. Cas. in Eq. (3d Am. ed.) 503, note ; 1 Redfield on Wills, 551-561. This discussion, though thus prolonged, may not be dismissed without presenting another view, upon which the evidence under consideration may be competent. A will made when fraud or compulsion is used may nevertheless be shown to be the free act of the party, by pi'oof of statements in which the will and its pro- visions are approved, made when relieved of any improper influ- ence or coercion. It is always open to inquiry whether undue influence in any case operated to produce the will ; and, as the will is ambulatory during life, the conduct and declarations of the testator upon that' point are entitled to some weight. Indeed, the fact alone that the will, executed with due solemnity by a com- petent person, is suffered to remain unrevoked for any considerable time after the alleged causes have ceased to operate, is evidence that it was fairly executed ; to meet which, to some extent at least, statements of dissatisfaction with or want of knowledge of its con- tents are worthy of consideration, and clearly competent, however slight their influence in overcoming the fact that there is no revo- cation. All this evidence, under whatever view it is admitted, is com- petent only and always to establish the influence and effect of the external acts upon the testator himself; never to prove the actual fact of fraud or improper influence in another. Coming now to the application of these rules to the case here presented, we cannot avoid the conclusion that the report shows that evidence of the subsequent declarations of the testatrix, to the effect that the will so made was contrary to her real intentions, or that she was ignorant of its contents, should have been admitted. The character and habits of the testatrix in her better days, the whole of her later life, with her expressed purposes and wishes up to the time of the will, were exhibited in evidence. With a con- siderable degree of physical weakness, that loss of vigor and activity in the mind, which indicates in persons of her habits and years the increasing infirmities and decay of old age, was shown to exist at and before the date of the will, for the purpose of increasing the probability that she was the victim of the improper designs of others. DECLARATIONS OF THE TESTATOR. 405 The precise statements are not reported, nor does it appear at what precise time they were made, but they were offered to show eitlier ignorance of the contents of the will, or that they were con- trary to her real intentions, and that the will was improperly obtained by the fraud and undue influence of tlie executors named. As we have already seen, this evidence was not competent as a declaration or narrative to show the fact of fraud or undue influ- ence at a previous period. But it was admissible not only to show retention or loss of memory, tenacity or vacillation of purpose existing at the date of the will, but also in proof of long cherished purposes, settled convictions, deeply rooted feelings, opinions, affections or prejudices, or other intrinsic or enduring peculiarities of mind, inconsistent with the dispositions made in the instrument attempted to be set up as the formal and deliberate expression of the testatrix's will ; as well as to rebut any inference arising from the non-revocation of the instrument. They were not rejected as too remote in point of time, or as having no tendency in their character to sustain the fact claimed to exist. In connection with the evidence thus offered and rejected, the contestants offered also the declarations and conduct of Hayden and Shailer, named executors, subsequent to the date of the will. And this brings us to another important question in the case. The evidence, for the purpose for which it was offered, was, we think, properly excluded. It was not proposed thereby to contradict their testimony. The admissions of a party to the record against his interest are, as a general rule, competent against him ; and this rule applies to all cases where there is an interest in the suit, although other joint parties in interest may be injuriously affected. But it does not apply to cases where there are other parties to be affected who have not a joint interest, or do not stand in some relation of privity to the party whose admission is relied upon. A mere community of interest is not sufficient. Devisees or legatees have not that joint interest in the will which will make the admis- sions of one, though he be a party appellant or appellee from the decree of the Probate Court allowing the will, admissible against the other legatees. In modern practice, at law even, the admis- sions of a party to the record who has no interest in the matter will not be permitted to be given in evidence to the prejudice of the real party in interest. In this case, it does not appear at what time after the date of 406 UNDUE INFLUENCE AND FRAUD. the will these declarations were made, whether before or after th( death of the testatrix, or before or after the offer of the will fo: probate ; and perhaps it is not material. They stand upon th( same ground with statements made at any time since the date o the will, by any other devisee or legatee named in the will, or heir at-law or legatee under the former will of 1851, whose interesti are affected, and who is a party to this record. Before the deatl of the testatrix, the interest of all tliese parties in a will, liable a any time to be revoked, was not such a direct interest as shouh render their admissions competent against other parties. Thi separate admissions of each, made after the act, that the will wai procured by their joint acts of fraud or undue influence, canno be permitted to prejudice the other. Such statements are onl; admissible when they are made during the prosecution of the join enterprise. Admitting for the present that any interest in a wil obtained by undue influence cannot be held by third parties, how ever innocent of the fraud, and that the gift must be taken tainte( with the fraud of the person procuring it, still it by no mean follows that the interest of the other innocent legatees should b liable to be divested by the subsequent statements of the partie procuring the will. Such a rule would violate all sense of righl and is not sustained by the decisions. The principal case, most often cited in support of the doctrin that such admissions are competent, is Atkins v. Sanger, 1 Pick 192. The will was contested on the ground that the testatrix wa not of sound mind, and had been unduly practised upon. Th declarations of one of the executors named, who were the princips legatees, were offered to show the circumstances attending th making of the will. Their admissibility was expressly urged o the ground that the parties to the record could not, as the law the was, be called as witnesses, and there was no way of proving th facts. The Chief Justice, after a short consultation with hi brethren, said the court were inclined to admit the declarations s to facts which took place at the making of the will, but added thi the decision did not interfere with Phelps v. Hartwell, 1 Mass. T. This is the whole of the case. It is to be noted that the case ws heard before the full court without a jury. The rule may hai been less carefully laid down than it would have been if the que tion had arisen on the admissibility of the evidence in a jury tria Under the present law of this commonwealth, making parties i ADMISSIONS OF LEGATEES. 407 the record witnesses, illustrated in this very case by calling the parties whose admissions were offered and subjecting them to the cross-examination of the contestants, we cannot think the rule now contended for would have been adopted, as it seems to have been in Atkins v. Sanger. In Ware v. Ware, 8 Greenl. 42, which was an appeal from the decree allowing probate of John Ware's will, the appellee was per- mitted to prove that Abel Ware, the only appellant, sai,d, two or three weeks before the death of the testator, that he had his senses. This case, so far as it permits the opinions of a party on the ques- tion of sanity to be put in evidence against him, is in conflict with Phelps v. Hartwell, supra; but on a closer examination it seems to be in harmony with the law as here stated. It does not appear that the appellant was not the sole party in interest. The fact that he was alone interested is to be inferred ; for Mellen, J., in reference to this point, says that by law the confessions of a party may always be given against him and his interest, but not thereby to defeat or impair the rights of others claiming under him. Upon principle, and by the weight of decided cases, we think there was no error at the trial in the present case in this respect. Clark V. Morrison, 25 Penn. St. 453; Titlow v.. Titlow, 54 Penn. St. 222 ; Osgood v. Manhattan Co., 3 Oowen, 612 ; Dan V. Brown, 4 Cowen, 492 ; Hauberger v. Root, 6 W. & S. 431 ; Thompson v. Thompson, 13 Ohio St. 358 ; Blakey v. Blakey, 33 Ala. 616. The conduct of Shailer and Hayden in relation to the property and business of the testatrix stands on the same footing with their admissions. It had no legal tendency to establish the issue on the part of the contestants. The act could not be invalidated, so far as others, at least, were concerned, by their subsequent conduct. The codicil of 1857, if freely and intelligently executed, would of itself fully establish the will of 1853. But the conduct of either in procuring it was clearly incompetent on these issues. All the other specific subsequent conduct offered seems to have consisted of independent and disconnected acts, not in any way related to the making of the will of 1853. Any subsequent acts of theirs, or of any one else, by which the testatrix was in any way prevented from revoking or making any change in her will if she desired,, or by which her relatives and friends were prevented or debarred ia 408 UNDUE INFLUENCE AND FRAUD. any way from free access to and communication with her, were expressly allowed to be shown. The deed of 1857 to Hayden, the consideration for which was inquired of in his cross-examination, was properly excluded as not tending to contradict his testimony. The facts inquired of were not material to the issue, and were not open to contradiction. The auditing of Haydea's accounts by Shailer, in 1855, her dissatisfaction with and continued employ- ment of Hayden, proposed to be proved in cross-examination of Shailer, were circumstances too remote in point of time to have any bearing upon the mental status at the date of the will. It was further objected that Hayden and Shailer were not compe- tent witnesses under the statute. But this is not a case where one of the original parties to the contract or cause of action in issue and on trial is dead. Tlicy are not parties in a representa- tive capacity. There was no cause of action in existence till the death of the testatrix. The controversy is between living parties. The testatrix is in no sense a party to the original cause of action. Her act was only the subject-matter of the investigation. Tlie rule contended for would exclude parties on both sides in all cases where litigation should arise, growing out of the act of another during life. We cannot construe the proviso of the statute so as to exclude as witnesses all those who may be parties on one side or the other in all probate appeals like this ; and we find no error in the ruling. Gen. Sts. c. 131, § 14 ; Baxter v. Knowles, 12 Allen, 114. Pacts showing the mental and moral condition of the testatrix in July, 1854, and at various periods subsequent to that time, were offered, and excluded as being too long after the date of the will. To a great extent, it must be left to the presiding judge to deter- mine upon the facts before him how far evidence of this description may have a tendency to throw light on the fact to be found ; namely, the actual condition at the date of the will. Some limit must of course be had in applying practically the rules which govern the admission of this evidence. We do not perceive any reason to differ from the judge in the limit here applied. After July, 1854, her mental condition must have greatly changed. Her advanced age, and the paralysis with which she was at that time seized, seem to make that period a proper limit for the evidence offered ; and we see no reason for sustaining this exception. In regard to the offer to show that several of the family of the FRAMING THE ISSUES. 409 testatrix had been, in advanced age, aifected by paralysis, accom- panied by an enfeebling of the mental and moral powers, and that it was a family tendency, we are of opinion that no sufRcient foun- dation was laid for the admission of such evidence. In questions of sanity, proof of hereditary tendency is competent in support of evidence of the existence of insanity in any given case. Here the sanity of the testatrix is not to be called in question. Her com- plaints of numbness in 1851, her physical weakness and mental inactivity prior to the attack of paralysis in 1854, do not justify the admission of the proof offered of hereditary tendency. No case is cited in which such evidence has been admitted in aid of the proof showing mere weakness of mind or eccentricity. 1 Eed- field on Wills, 156, 157 ; Baxter v. Abbott, 7 Gray, 75. The only remaining point arises upon the manner in which the issues as framed were submitted to the jury by the presiding judge. It is claimed to be the duty of this court now to revise the order, upon exceptions or appeal taken in the usual way. In the matter of framing issues, proceedings in probate appeals are conducted in accordance with the rules and practice in equity. The findings of ■ the jury in such cases are availed of to inform the court in mat- ters of controverted facts which may become material in settling the final decree. They may be disregarded, in whole or in part, if on the final hearing they are not deemed important or relevant ; or such new issues may from time to time be framed and sub- mitted as a just regard to the rights of all may s'eem to require. Tliree testamentary papers were here produced, purporting to have been executed in three different years. The like four issues were presented as to each. The court, having regard to the fact alleged, that the mental capacity of the testatrix had been seriously aifected by severe illness between -the years last named, ordered the issues tried separately ; and those relating to the will of 1853 have been accordingly twice tried. Two of tlie issues at the first and two at the last trial were found in favor of the will. We can- not see that any injustice has been or is likely to be done by sub- mitting the issues in this way to the jury ; or that the trial of the issues upon the will of 1853 ought not now to be completed. The exceptions having been sustained in the single respect above stated, the last verdict of the jury upon the issues relating to the will of 1853 is therefore set aside,' and a new trial ordered upon the second and thii'd issues relating to that will. 410 UNDUE INFLUENCE AND FRAUD. 2. Gomstoch v. Hadlyme, 8 Connecticut Reports, 254. 1830. (See ante, p. 174.) 3. Miller v. Miller, 3 Sergeant Sf Bawle's Pennsylvania Reports, 267. 1817. One has the right, by fair argument and persuasion, to induce another to make a will in his favor. Influence and persuasion may be fairly used ; but a will procured by circumvention will be set aside ; but when procured by honest means, by acts of kindness, attention, and even by importunate persuasion which delicate minds would shrink from, it would not be set aside, upon this ground alone. The facts in the case sufficiently appear in the opinions of the judges by Tilghman, C. J., and Duncan, J. — TiLGHMAN, 0. J. The trial in this case was had, on an issue from the register's court of Lebanon County, to decide on the validity of a certain writing exhibited as the last will and testa^ ment of Michael Miller, deceased. The defendants offered evidence to prove that John Miller, one of the plaintiffs in the issue, and a devisee in the writing set up as a will, had, after the execution of the said writing, " by various discourses, intimated that he had procured the said will to be made, and that the same was read tb him, and that he had given the reasons why his brothers and sisters had got so small a portion." This evi- dence was objected to by the counsel for the plaintiffs, and rejected by the court, to whose decision an exception was taken. A question has been made, whether any declarations of one of the devisees in a will are evidence against the other devisees. This question it is unnecessary to decide, because it appears to me that the evidence offered was so vague, indefinite, and im- material, that it ought not to have been received. It was not even offered to be proved that John Miller had said that he procured the will to be made, but only that he had intimated it. Besides, the procuring a will to be made, unless by foul means, is nothing against its validity. Neither was it at all material that the will was read to John Miller, or that he had given the reasons why his brothers and sisters had got so small a portion. Hear- ing the proof of all these things would have been wasting time LAWFUL INFLUENCE. 411 to no purpose. A man has a right, by fair argument or persuasion, to induce another to make a will, and even to make it in his own favor. If any improper artifice or fraud had been practised, and it was intended to prove that John Miller had confessed it, it should have been so stated. The court is not to presume that any thing else will be proved than what is opened by the party who offers the evidence. In this case, what was opened was irrelevant, and I am, therefore, of opinion that the evidence was properly rejected. Duncan, J. The evidence offered on this issue, to try the valid- ity of a paper purporting to be tlie last will of Michael Miller, was that John Miller, a devisee and plaintiff, and the person with whom the testator had lived, had by various discourses intimated that he had procured the will to be made, and that the will was read to him, and that he had given the reasons why his brothers and sisters had got so small a portion. The evidence was offered in too loose a shape. What discourse had John Miller ? What did he say ? The discourses and con- versations are not stated. Intimation is a conclusion from something said that something should have been stated ; " intimated, by his discourse, that he had procured the will to be made." How intimated ? By what means procured ? Is it pretended that John Miller intimated that he had procured the will by unlawful means ? Infiuenee, persuasion, may be fairly used. A will may be honestly procured. Many wills, indeed, would be destroyed if you inquire into the degrees of influence and persuasion. A will procured by circumvention will be set aside ; but a will procured by honest means, by acts of kindness, attention, and by importunate persuasion which delicate minds would shrink from, would not be set aside on this ground alone. Having the will read to him, and the reason he gave why his brothers and sisters had so small a por- tion, surely this could not be material evidence to invalidate the will. If the testimony offered ought to have had no weight with the jury, tended to prove nothing pertinent to the issue, it would be immaterial. If immaterial, it has properly been rejected. It would tend to protract a trial, to confound a jury, were all idle, loose, impertinent, and immaterial conversations of a party to be received in evidence. It would embarrass, perplex, and confound the jury ; render the trial tedious and expensive, without shedding one ray of light on the issue. If this evidence was admitted to be 412 UNDUE INFLUENCE AND FRAUD. heard by the jury, the court must have directed the jury to discard it from their minds. It was, therefore, most properly rejected in the first instance, and the judgment must stand. 4. Taylor v. Wilburn, 20 Missouri Reports, 306. 1855. Where a will is attempted to be invalidated by proving that it was obtained by undue influence, the burden of proof rests upon the contestants. Where a will is attempted to be avoided by reason of the insanity of the testator, it is sufficient to show that the testator was of sound mind at the time he made the will, in order to meet the defence. But where the defence against probate rests upon the allegation that the will was obtained by undue influence, it will not be sufiicient answer to it to show that no undue efforts were made by any one to influence the testator at the very time of the execution of the will. It must appear that no such influence, acquired by any one at any former time, was then operating upon the testa- tor, and compelling him to execute such a will as he would not otherwise have made. The influence of a wife over her husband while in an infirm state of health and a weak state of mind, both of long continuance, is likely to be gradually ac- quired, and permanent in its character; and where an unjust will is the pfi"- spring of such influence, however silent or subtle its character, it cannot be maintained. The facts sufficiently appear in the opinion of the court by — Scott, J. There is no doubt but that the burden of proof in this case was upon the petitioners or plaintiffs. They did not deny the execution of the will, but set up such weakness and infirmity of intellect, caused by sickness and age, as rendered the testator not of a sound and disposing mind, and such an influence exercised over him as vitiated his will. But in making this admission we cannot see any consequence resulting from it injurious to the plain- tiffs by reason of the first instruction given at their instance by the court. That instruction directs the jury to find for the plaintiffs, unless they believe from the evidence that John Wilburn was of sound mind at the time of making his will. Now this instruction did not relieve the petitioners from the burden they had assumed of showing insanity in the testator. The instruction is to the effect that the insanity of the testator must be shown by the plaintiffs in order to obtain a verdict. To say that the act of a man is void, unless he was of sound mind when he performed it, is the same POWER OF CONTROL OF LONG STANDING. 413 thing as to say the act of a man of unsound mind was void. When the objection to the validity of a will is the insanity of the testator, it is generally sufficient to show that he was of a sane mind at the time of its execution. But where a will is impeached for undue influence exercised over a weak intellect, and that, too, by one hold- ing the close and constant relationship of a wife, it is not sufficient to show that the testator was not under restraint at the moment of the execution of the will. Such is the nature of the human mind, that when it has been habituated to the influence of another, it will yield to that influence and suffer it to have its effect, although the person in the habit of its exercise may not be present, or exert it at the time an act is done. So that the inquiry, in such cases, is not whether an undue influence was exerted at the time of the exe- cution of the will, but whether an influence had been acquired, and did operate in the disposition of his property by the testator. After one mis-trial and two verdicts against the will, this court would scarcely be warranted in pronouncing that the facts assumed in the second and eleventh instructions of the plaintiffs were not warranted by the evidence. The first instruction given for the de- fendants was broader than the first given for the plaintiffs ; but, so far as they relate to the question of the sanity of the testator, there was no inconsistency between them. This is sufficiently apparent from the considerations above stated. Nor is there any contrariety between the plaintiffs' first. and third instructions. As the evidence warranted the instructions given for the plain- tiffs, and- as all the instructions asked by the defendants were given, which fully explained the nature of the influence to be exerted in order to invalidate a will, and as there have been one mis-trial and two verdicts against the will, we are satisfied that no advantage would ultimately result to the defendants from disturbing the judg- ment of the court below. 5. Marshall Y. Flinn, 4 Jone^ North Carolina Law Reports, 199. 1856. All that is required to constitute testamentary capacity is, that the testator, at the time of making his will, knew what he was doing, and to whom he was giving his property, and that they would be entitled to it, provided the forms of law were complied with. The only influence in procuring a will which the law condemns, or which destroys the validity of a will, is a fraudulent influence controlling the mind of the tes- 414 UNDUE INFLUENCE' AND FRAUD. tator so as to induce him to make' a will which he otherwise would not have made. If a son has acquired such authority over a father as to direct him how to make his will, and exerts his power to produce a will in which he is the principal legatee, it is undue influence, and the will cannot be supported. But proof that he may have exerted such influence, from his position and relation to the testator, being both his son and supporter, will not be sufficient to invalidate the will. Opinion of the court by — Nash, C. J. We see nothing in this case to induce the court to interfere with the judgnaent below. When special instructions are asked for on the trial of a cause, it is the duty of the court to re- spond to them, either by adopting the prayer, or refusing to do so. But in the former case, it is not required that the charge should be given in the words of the prayer. It may be given in such language as is most appropriate to place the principle of law contained in the prayer clearly before the jury. He may refuse to charge as required, even where the instructions are proper in themselves, if those given are, in substance, the same, and correctly lay down the rule of law. In this case, we think his Honor, in response to each prayer, has laid down the law correctly. To the first prayer, the case states tlie court refused to give the instruction in the language prayed for. He then instructed the jury that " weakness of mind was not of itself Sl valid objection, as the law did not undertake to measure the size of a man's intellect ; that it did not require that he should be a wise man ; that if he was between the wise and the foolish sort, although he inclined rather to the foolish, he was, in law, capable of making a last will and testament, &c. ; that he must do it with understanding and reason, and if the jury should be satisfied that, at the time of exe- cuting the supposed will, William Marshall had not understanding and reason, they should find a verdict against the will ; that if the supposed testator knew what he was doing at the time of making the supposed will, and that he was giving his property to the plain- tiffs, and that they would be entitled to it, provided the forms of law were complied with, then they were defined in favor of the will." We are at a loss to perceive any error iu this part of the charge ; it correctly embodies the rule of law upon the question of the alleged insanity of the testator, and is very nearly in the language of some of the most approved writers on the subject. MUST BE DISTINCTLY PROVED. 416 The response to the second prayer embodies the substance of it, though the judge uses a different phraseology to express the prin- ciple, and winds up by telling the jury that the intelligence and integrity of each witness were matters for their consideration. The third prayer was properly refused. His Honor could not have charged the jury as required without violating his duty, as it would have invaded the province of the jury. The plaintiff then requested the court to charge the jury, that the only influence which the law condemns, and which destroys the validity of a will, is a fraudulent influence, controlling the mind of the testator, so as to induce him to make a will which he other- wise would not have made. To this prayer the defendant's counsel objected, upon the ground that he had not put the case upon the ground of undue influence of John M. Marshall over his father, but altogether on the want of mental capacity on the part of the supposed testator. The court tlien asked the counsel of the defendants if they with- drew that part of their argument, in which the court understood them to argue that the paper writing then before the court was dic- tated by John M. Marshall. The counsel said they did not withdraw the argument they had made, because they considered it proper, in answer to the evidence offered by the plaintiff, to show that William Marshall, Senior, had dictated his will, and had assigned reasons to the defendants for making it as it was ; and they still contended that sucii dictations and reasons may have been the suggestions of John M. Marshall, one of the principal legatees, who resided in the same house with the testator, and assisted him to the door of the room in which he exe- cuted the paper writing now offered as his will. His Honor then instructed the jury, as requested by the plain- tiffs' counsel. The reasons assigned for excepting to the plaintiff's prayer are contradictory. They first object, because they had not put the case upon the ground of undue influence, but solely upon that of incapacity. " But," said the judge, " I understand you, in your argument, to take the ground that John M. Marshall had dictated the will. If you will withdraw that argument I will not charge the jury, as the plaintiffs' counsel request." They admit that the judge understood them correctly, and refused to withdraw the argument, but insist that it was proper, in answer to the evidence of the plain- 416 UNDUE INFLUENCE AND FRAUD. tiffs, that William Marshall had dictated the will and assigned 'his reasons ; and they still contended that John M. Marshall may have dictated the will and assigned the reasons ; for he lived in the house with his father, and had actually helped him to the door of the room where the paper was written. What is dictation, or to dictate ? Mr. Bayle says, " To dictate is to tell another what to write, to indite, to teach, to show another something with authority, to declare with confidence ; " and that a dictator " is one whose credit or authority enables him to direct the opinion or conduct of an- other." If John M. Marshall had such power and authority over his father as to be able to direct him how to make his will, and exerted that power to cause him to make a will in which he is the principal legatee, it was, on his part, the use of undue influence, and would destroy the will. But the reason assigned for the sug- gestion of the dictation of William Marshall is, that he lived in the house with his father, and assisted him to the door of the room where the paper was written. What effect such suggestions might have upon a jury the court could not tell ; it was, therefore, his duty to draw to their attention the difference between legal and illegal influence. lu doing so, there is no error. In the course of the trial, a man by the name of Bordeaux was examined by the plaintiffs, as to the general character of a Mrs. Balantine, a witness for the defendants, and he swore that, for truth and chastity, it was bad. The defendants then asked the witness who he had heard say her character was bad for truth and chastity. Upon objection being made, the question was ruled out. Mr. Phillips, in his first volume, 292, lays down that in answer to such evidence the other party on cross-examination may inquire as to their means of know- ing the general character of the witness assailed, and the grounds of their belief. There was error in the ruling of the court on this point (State v. Howard, 9 New Hampshire Rep. 485), and for such error we should have awarded a venire de novo ; but the plaintiff withdrew his objection, and consented that the question should be put. The defendant refused to ask the question again. This waiver on the part of the defendant cured the error. MUST BE OPERATIVE AT DATE OP WILL. 417 6. McMahon v. Ryan, 20 Pennsylvania State Reports, 329. 1853. This case, although somewhat briefly reported, comes from an eminent judge, and seems to express the real gravamen of undue influence, in few words, and in a most perspicuous manner. Undue influence in the procurement of a will must be a present, constraining, and operative power upon the mind of the testator, in the very act of making the testament. Influence, however improper, if long past and gone, and not shown to be in any way operative in producing the will, is no ground of its impeachment. The facts appear in the opinion of the court by — Woodward, J. It is essential to a good testament that the mind of the testator in the making of it be free, and not moved by fear, fraud, or undue flattery ; and therefore if a man, by occa- occasion of some present fear or violence, or threatening of future evils, do at the same time, or afterward, by the same motive (that is, when acting under that influence"), make a testament, it is void, not only as to him that put him so in fear, but as to all others, albeit the testator confirm it with an oath. Touchstone, 405. It must be a present constraint, operative on the mind of the testator in the very act of making the testament. Threats and violence, or any undue influence long past and gone, and in no way shown to be connected with the testamentary act, are not evidence to im- peach a will. The will here was made in January, 1852, and there was no evidence offered to show that, in making it, the testatrix was in- fluenced by the possible use her reputed husband might make of the fact of a former marriage, nor by the bad treatment she had received at his hands. General bad treatment is no ground for impeaching'a will. Perhaps it ought to be regarded as furnish- ing presumptions in favor of the will. Unless it be shown that the testator was coerced, or at least influenced, to make the will by the bad treatment received, it is irrelevant evidence, and as such was properly rejected. The same court in a later case reaffirm the same rule in regard to undue influence requisite to avoid the will, and make some further suggestions in regard to the proof of its continued opera- tion at the time of the execution of the instrument. 27 418 UNDUE INFLUENCE AND FEAUD. 7. Echert v. Flowry, 43 Pennsylvania State Reports, 46. 1862. That is undue influence which amounts to constraint, which substitutes the will of another for that of the testator. It may be either by threats or fraud. It must be a present influence, acting upon the mind of the testator at the time of making his will. It must be something entirely distinct from mere weakness of mind. Ordinarily, undue influence arises from some interested motive, either for the benefit of the person attempting to exert such influence, or of some other in whom he feels an interest. And the absence of all such, or any other motive, raises a presumption against its existence. Where there is no legal evidence tending to show undue influence, it is error in the court to submit the question to the jury. The opinion of the court was delivered by — Strong, J. The exceptions to the admission of evidence, as well as those to the charge of the court, all point to but one error. That, however, was radical, and it pervaded every part of the trial. The paper set up as the will of Louisa Youngheim was assailed on two grounds. The absence of a disposing mind in the testatrix, and undue influence exerted over her by John Eckert in procuring it, were both averred. It was to prove the latter that the testimony of Mary Miller and Mary Fricker, re- cited in the first and second bills of exceptions, was offered, and it was on the assumption that some evidence of undue influence had been given that the court put the case to the jury, to find whether the testatrix was unduly influenced by the plaintiff, or (as the learned judge said in that part of his charge to which the fifth assignment of error relates) " whether he improperly induced her to cut off her child from the benefit of her worldly goods and property, in short, to make the will as he directed, not according to her independent will and wishes." It might well be remarked that from such a mode of putting the case to them, the jury would readily conclude that inducing the testatrix to disinherit her child was the exercise of an improper influence, an influence which the court had elsewhere denominated undue, and which, if it was ex- erted, would avoid the will. And even if the court intended no such thing, still the verdict was made to turn upon their finding whether John Eckert had unduly influenced the testatrix to make the will. Now, that is undue influence which amounts to con- WHEN CANNOT BE SUBMITTED TO JURY. 419 straint, which substitutes the will of another for that of the testa- tor. It may be either through threats or fraud, but however exer- cised, it must, in order to avoid a will, destroy the free agency of the testator at the time when the instrument is made. In the language of Woodward, J., in McMahon v. Ryan, 8 Harris, 329, ante, p. 417, " it must be a present constraint, operative on the mind of the testator in the very act of making the testament." The paper asserted in this case to be a will was dated on the 21st of June, 1858, and was then executed. Unless, therefore, there was some evidence tending legitimately to prove that some fraud had been practised upon the testatrix at that time, or that some misrep- resentation had then been made, or that some physical or moral coercion had been employed, such as to destroy her free agency, the court erred in submitting to the jury the question whether undue influence had been exerted. It was inviting them to find as a fact that of which there was no evidence, and which the law as well as reason presumed had no existence. Undoubtedly, if the mind of the testatrix was weak, it required less influence to control her will than it would have required to control the will of one whose mind was in full vigor. But neither moral nor physical constraint is to be inferred from mental weakness alone. That undue influence which suffices to destroy an alleged will is distinct from weakness, and has no necessary connection with it, and we find in this record no evidence of any undue influence, or of any influence at all, exerted by John Eckert over the mind of the testatrix to induce her to make this will, and none has been pointed out to us by the earnest counsel of the defendant in error. There is nothing which tends to prove that he practised upon her any fraud, that he made any misrepresen- tation, or in any manner constrained her, in June, 1858. when the will was made, and no motive was shown for the exertion of undue influence. The will was not made in his favor or in that of his relatives, and he does not seem to have any ill-feeling towards the disinherited daughter. The fact, if it was a fact, that, months after the will was made which appointed him executor, he exercised control over her affairs and over herself, during her ad- vanced age, unconnected as it was with the testamentary act, was no evidence from wliich the jury could infer that the will was not her own. McMahon v. Ryan, 8 Harris, 329. We think, therefore, there was error in submitting to the jury 420 UNDUE INFLUENCE AND FRAUD. to find that undue influence had been exerted, as also by admitting the evidence given by Mary Fricker and Mary Miller, to which exception was taken. 8. Davis Y. Calvert, 5 Gill <& Johnson's Maryland Reports, 269, 299-313. 1833. This opinion comes from a judge of very eminent reputation, and it has long been regarded as one of a very controlling Charac- ter, in the American law, upon the questions discussed. The opinion will be sufficiently intelligible, as given below, omitting some of the preliminary statements. The Maryland statute defines testamentary capacity as being that which will enable the testator to execute " a valid deed or contract." And this must exist at the time of executing the will. But evidence of the testator's capac- ity, both before and after that time, may be given, from which the jury may infer his state of mind at the time of executing the will. The character of the provisions of the will may bo considered as evidence of the testator's state of mind at the time of its execution. But it is not entitled to much consideration, except in extreme cases, or where there is other evidence of weakness of mind or undue influence. All the surrounding circumstances as to the testator's property and family may be shown in connection with the provisions of the will, to enable the triers to form a just opinion of their reasonableness. Honest and moderate intercession or persuasion, or flattery, unaccompanied by fraud or deceit, or not connected with fear or deception, will not invalidate a will. But influence and importunity may be carried to such an extent, even short of fraud, as to defeat the will thereby obtained. The testator should enjoy full liberty and freedom, and have the power to with- stand all contradiction and control. Undue influence, so long as it continues to operate, will avoid a will which is the result of it. No will can be upheld when it is induced by fraud. And all circumstances, tend- ing to show fraud, in connection with other testimony should be received de bene esse. Extended comments upon the evidence and its tendency and force. Comments upon the charge to the jury and its application to the testimony. The opinion of the court by — Buchanan, J. The questions, then, that were presented to the jury for trial upon these issues, are questions of mental incapacity, undue importunity, undue influence, and of fraud. MEASURE OP TESTAMENTARY CAPACITY. 421 The third section of the first sub-ch. of the act of 1798, c. 101, provides, " that no will, testament, or codicil shall be good and effectual for any purpose whatsoever, unless the person making the same be, at the time of executing or acknowledging it, of sound and disposing mind, and capable of executing a valid deed or con- tract." These latter words, " and capable of executing a valid deed or contract," are of importance in the investigation of every question touching the mental capacity of a testator. He who is not competent to execute a valid deed or contract, is, under the testamentary system of this State, incompetent to make a valid will or testament. It is not sufficient of itself that a testator should be able to describe his feelings or give correct answers to ordinary questions. His feelings at the moment may dictate his description of them, and the questions may prompt the answers, and yet he may be inadequate to the transaction of other business, and unable to dispose of his estate with understandhig and dis- cretion. The written law of this State furnishes the rule by which the capacity of a testator is to be measured, and the inquiry must always be, whether, at the time of executing or acknowledging the will or testament, he was' capable of executing a valid deed or contract ; that is here the standard by which the mental capacity of a testator is to be ascertained, and no inferior grade of intellect will suffice. That state of mental capacity is to be determined by the condition of the testator's mind at the time of his executing or acknowledging the will or testament. For notwithstanding his incapacity at a prior or subsequent time should be proved, it does not necessarily follow that he was incompetent when the will or testament was made, as his incapacity before or after tliat time might have been the effect of a temporary cause. But for the purpose of shedding light upon the state of his mind at the time the will or testament was made, evidence of its condition and of his bodily imbecility, both before and after that period, may be produced. And a jury may, upon the whole evidence, infer incom- petency at the time of executing or acknowledging the will or testament, according to the character and cause of the entire inca- pacity proved ; which may be established by proof of the conver- sations or actions or declarations of the testator inconsistent with sanity, or of all of them taken together. The general maxim is, semel furihundus semper furibundus prcesumitur. It is not of itself 422 UNDUE INFLUENCE AND FRAUD. sufficient to avoid a will or testament, that its dispositions are im- prudent and not to be accounted for. But a will or testament may, by its provisions, furnish intrinsic evidence, involving it in suspi- cion, and tending to show the incapacity of the testator to make a disposition of his estate, with judgment and understanding, in reference to the amount and situation of his property and the rel- ative claims of the different persons who should have been the objects of his bounty ; such as a disposition of his whole estate, to the exclusion of near and dear relations, having the strongest natural claims upon his affection, — a wife and children, for instance, or other near relations, — without any apparent or known cause, which alone would be a suspicious circumstance, although not fur- nishing per se sufficient ground for setting aside the instrument. This is but a single example, and not given as the only one cal- culated to excite suspicion of the competency and freedom to act of a testator. The contents, therefore, of the will or testament itself, and the manner in which it was written and executed, to- gether with the nature and extent of the estate of tiie testator ; his family and connections ; their condition and relative situation to him ; the terms upon which he stood with them, and the claims of particular individuals ; the condition and relative situation of the legatees or devisees named ; the situation of the testator him- self, and the circumstances under which the will or testament was made, — are all proper to be shown to the jury, and often afford im- portant evidence in the decision of tlie question of incapacity. Arid sometimes, if taken altogether, may, according to the degree of the injustice, absurdity, or unreasonableness of the dispositions at- tempted to be made of the property tending to induce a reasonable doubt of the necessary sanity of the maker, and of his free agency, uncontrolled by some undue influence, and the nature of the at- tending circumstances and condition and conduct and character of those around him, justify a jury in deciding against the validity of the instrument, when its provisions, standing alone, unattended by such circumstances, or not coupled with them, would not be sufficient. Fraud is a distinct head of objection from importunity and undue influence. Importunity and undue influence may be fraudulently exerted, but they are not inseparably connected with fraud ; nor is it every degree of importunity that is sufficient to invalidate a will or testament. Honest and moderate intercession or persuasion, WHAT SUFFICIENT TO AVOID WILL. 423 or flattery unaccompanied by fraud or deceit and where the testa- tor has not been threatened or put in fear by the flatterer or per- suader, or his power or dominion over him, will not have that efiect. That there may be great and overruling importunity and undue influence without fraud, which, when established, may and ought to have effect (under circumstances) to avoid a will or testament. Such as the immoderate, persevering, and begging importunities and flattery of a wife who will take no denial, pressed upon an old and feeble man, which may be better imagined than described ; or dominion obtained over the testator under the influ- ence of fear, produced by threats, violence, or ill-treatment. In neither of those instances may there be any direct fraud, but an overruling influence upon the mind and feelings of a testator, ac- cording to the degree of his judgment and firmness. To persuade or importune merely is not to defraud ; neither is it a fraud to threaten or ill-treat where there is no false impression, no deception practised ; but it is the moving cause of a pervading fear operating upon and governing the will and actions of the per- son so put in fear, and controlling and restraining the fair bias of his mind. Open violence is usually the opposite of fraudulent and deceitful practices, but not less destructive of the validity of a will or testament made under its influence. A testator should enjoy full liberty and freedom in the making of his will, and possess the power to withstand all contradiction and control. 1 Swinburne on Wills, 22. That degree, therefore, of importunity or undue in- fluence which deprives a testator of his free agency, which is such as he is too weak to resist, and will render the instrument not his free and unconstrained act, is sufficient to invalidate it. Kinleside V. Harrison, 1 Eng. Eccles. Rep. 336 ; s. c. 2 Phillim. 49 ; 3 Stark. Ev. pt. 4, 1707. Not in relation to the person alone by whom it is so procured, but as to all others who are so intended to be bene- fited by his undue influence. That is the settled principle running through the books of au- thority, and is equally applied to cases of fraud, as in Bennet v. Vade and Others, 2 Atk. Rep. 324 ; Ux parte Fearon, 5 Ves. 683 ; Ux parte Wallop, 4 Br. Ch. Gas. 90, and 4 Ves. 809 ; Huguenin v. Baseley, 14 Ves. 273 ; 7 Bac. Abr. 303, 304. If it were otherwise, the guards thrown by law around testators, and the interest of those having just and natural claims upon them, would afford but a very feeble protection ; as he who procures a will by fraud, misrepresentation, 424 UNDUE INFLUENCE AND FRAUD. imposition, or undue influence, may readily procure the property to be given to others instead of reserving it directly to himself. No ; but, in the language of Ld. Ch. J. Wilmott, in Bridegroom v. Green, " whoever receives it must take it tainted and infected with the undue influence and imposition of the person procuring the gift ; his partitioning and cantoning it out among his relations and friends will not purify the gift and protect it against the equity of the person imposed upon." 14 Yes. 289, and so in 2 Bac. Abr. (Gwill. ed.) 303, 304. If a man, by occasion of some present fear or violence, or threatening of future evils, does at the same time or afterwards, by the same motive, make a will, it is void, not only as to him who puts him so in fear, but as to all others. So that to avoid a will or testament, it is not necessary that threats or violence should have been practised or resorted to at the time of making it, but it is enough if it was made at any time afterward, under the general controlling and continuing influence of fear or dominion over the testator, by the person who so put him in fear, though not immediately exercised in regard to that partic- ular instrument. Fraud vitiates every thing with which it is connected. A will or testament, therefore, which is obtained by fraud, is void ; and though fraud is never to be presumed, yet it is not necessary to prove it by positive and direct testimony. But being usually wrapped up in mystery, if well concerted, it is generally by cir- cumstances only, by inductions of particulars, some of them often apparently trivial, that it can be brought to light and defeated. And in a question of fraud, any fact, no matter how slight, bearing at all on the point at issue and not wholly irrelevant, may be ad- mitted. But the circumstances, when combined and considered by the jury, should be so strong as to satisfy them of the existence of the fact they are offered to establish. It is a well-settled rule of evidence, that remote and collateral facts and circumstances, not pertinent or relevant to the issue to be tried, are inadmissible in evidence. They are not only useless, but as they are calculated to distract the attention of the jury, they may be mischievous, and tend to prejudice and mislead them. But it is equally well settled, that facts and circumstances tending to prove the issue are admissible. Nothing that is pertinent or mate- rial to the issue joined, and tending to prove or disprove it, is inad- missible, if offered to be established by competent testimony ; and GROUNDS OP ADMITTING TESTIMONY. 425 it is the duty of the judge, in the exercise of a sound discretion, to discriminate between such facts as are merely collateral and foreign to the issue and such as are connected with it. It is sometimes difficult to ascertain whether a particular fact offered in evidence is connected with the issue, and will or will not become material in the progress of the investigation. In such cases, the court not clearly seeing that it is wholly foreign and irrel- evant to the issue, and cannot be connected with it by evidence of other facts and circumstances, it is proper and usual in practice to admit the proof, on the assurance of the counsel who tenders it that it will turn out to be pertinent and material ; otherwise mate- rial and important testimony might frequently and injuriously be excluded, which it is the province of the court to guard against, when it may be done. As where the matter in issue depends upon a variety of facts and circumstances, to be proved in different ways and by different witnesses, thg whole of which cannot always be presented to the court at one view, the relevancy of any one of which, standing alone as a mere isolated fact, may not clearly appear, and could only be shown by a disclosure of the whole in proof; and yet the rejection of it have the effect to destroy the force of all the rest, when the whole taken together would be con- clusive of the question. And when it does not clearly appear, a 'priori, that a fact offered to be proved is collateral and irrele- vant, there is generally less mischief to be done or apprehended by admitting it, though it should afterwards turn out to be merely collateral, than by the rejection of the proof of a fact only'because standing alone it does not plainly appear to be connected with the issue, but may, when connected with other facts and circumstances, become material and important. In short, no competent means of ascertaining the truth ought to be rejected ; and all the surround- ing facts of a transaction that can be established by competent evidence may be submitted to a jury, who are the judges of their force and effect. Applying these principles of law and rules of evidence to the present case, the testimony offered at the trial on the part of the appellant, and rejected by the court, should have been suffered to go to the jury as evidence of facts relevant to and tending to prove the issues on her part. It is contended on the part of the defendants that the exist- ence of the facts and circumstances offered to be proved were not put in issue, and therefore properly rejected. 426 UNDUE INFLUENCE AND FRAUD. It is true that they were not put in issue, nor was it necessary that they should have been ; but they were offered to estabhsh the facts that were put in issue, — mental incapacity, importunity, undue influence, and fraud ; and if relevant to either of those issues, they were proper to be submitted to the jury, no matter how slight they may be supposed to be, whether taken separately or collectively. In the plea of per fraudem, has it ever been held necessary to set out every minute circumstance, by the aid of which the fraud alleged is proposed to be unveiled ? The fraud imputed is one thing, the evidence by which it is to be estab- lished is another and quite a different one. The only questions here, then, are, first, whether the testimony by which the facts were proposed to be proved was competent evidence for that purpose ; and, secondly, whether those facts, if established, are relevant, and bear upon the points in issue, or any of them. The first of these questions is settled by the record, the first bill of exceptions stating that they were offered to be proved by competent and credible witnesses. As to the second, it appears that Caroline Calvert, who is the reputed illegitimate daughter of George Calvert by a female slave, was not the wife of Thomas Cramphin, but his kept mistress ; that at the time of his forming that illicit connection with her, he was about seventy-five years of age ; that at that time she was the slave of George Calvert, her reputed father, and, continued in that condition until two days before the will was made, when she was emancipated by Calvert, Cramphin being then about eighty-five or eighty-six years old ; that between the time when the connection was formed and the date of the will, she had the seven children named in the will, and one other who was then dead, and after- wards and before his. death, which was some time in December, 1830, three others, who are still living and not provided for, though born free (being after their mother's emancipation), and capable of taking ; that the deed of emancipation of Caroline Calvert, the mother, contains a manumission of her seven children provided for in the will, to take effect in futuro, at certain specified periods, in relation to the males, on their attaining respectively the age of twenty-one years, and the females respectively the age of eighteen years ; that at the same time a bill of sale was executed by George Calvert to Caroline of the seven children, until they should respec- tively arrive, the males at the age of twenty-one, and the females at COMMENTS ON THE TESTIMONY, 427 the age of eighteen years ; that George Calvert is, by the will, made sole executor and trustee in fee of all the property devised to the seven children, with a contingent devise in fee to Caroline, the mother, in the event of their being incapable of taking the benefit of the trust, from any cause whatsoever ; and that two codicils were afterwards executed, in the last of which George Calvert is made contingent devisee of the whole estate. All of which having gone to the jury, the appellant offered to give in evi- dence the declarations of this same George Calvert (the reputed fatlier of Caroline, and grandfather of the children, and who is described in the will as the confidential friend of tlie testator),* made a few days after the testator's death, " that he had promised him (the testator) to provide for the children, yet that he did not consider himself bound to do so, because he was convinced that they were not liis children," which were rejected. Now, Calvert being executor and contingent devisee, and representing every interest under the will, and being also a defendant on record, evidence of any relevant declarations or admissions by him, adverse to the will, and bearing upon the issues or any of them, ought to have been ' admitted, the rule being " that the admission of a party on record is always evidence, though he be but a trustee for another," with cer- tain exceptions not applicable to this case. It does not fall within the principle excluding hearsay evidence ; and with great deference we think that his declarations offered to be proved are relevant, how- ever trivial they may be considered standing alone. Seeing that he was the confidential friend of the deceased, who placed great reliance upon his judgment and fidelity, as manifested by the important trust confided to him, for it is a large estate, and the reputed grandfather of the cliildren placed under his care, is it not clear that his promise, if made, had reference to the disposition of the will, and that they were conversing on that subject at the time the .promise was given ? And may it not be that this very old man, relying upon that promise and the integrity and fidelity of his friend, was deceived into what he did, and would not have done but for that deception, if, indeed, it had relation to the chil- dren intended to be provided for, for it does not clearly appear to which set of the children of Caroline it did relate ; but suppose it related to the three children born after the will was made, and not provided for, may it not be that the deceased wished and intended to make provision for them, but was prevented by the imposition 428 UNDUE INFLUENCE AND FRAUD. and deception practised upon him, if any such there was ? and if so, if Calvert did make the imputed promise, intending to violate it, it was an imposition and deception practised upon the old man. If the offer had been of evidence of an acknowledgment by Calvert, that he had forged the will, or extorted it by threats or violence, there would have been no difficulty about it. Here, indeed, the offer was of evidence of a circumstance only; but though a mere circum-- stance, it was of one tending to prove the issue of fraud, and which, when connected with others, might be found to be an important link in the chain. As to the several other offers stated in the first bill of exceptions, we think they were all and each of them evidence pertinent and proper to have gone to the jury, as parts of the surrounding circum- stances of the transaction, and tending to elucidate the matter in dispute, and ought to have been admitted. In questions of this kind, the condition and character and con- duct of the persons drawn around the testator are of importance to be inquired into, in reference to his family and relations, his own situation, the extent and nature of his estate, the character of the dispositions of the will, and to the persons to whom the property is given. Here the condition of Caroline Calvert was that of a colored slave, the kept mistress of the testator, in which condition she continued until two days before the date of the will, with a view to which the deed of emancipation would seem to have been ex- ecuted, when Thomas Cramphin was eighty-five or eighty-six years old. The estate is a large one, and the whole of it given to her and her children named in tlie will, with a contingent devise to George Calvert, to the exclusion of all others. Now, seeing all this, if it be true that Caroline Calvert was, before she had formed the illicit connection with Cramphin, and up to the time of that connection, a woman of lewd and dissolute habits, a com- mon prostitute, which was offered to be proved, and is after that time continuing to live with him as his mistress to the day of. his death, and inducing him to confide in her fidelity to him, she con- tinued unknown to him to indulge in secret intrigues and lewd in- tercourse with other persons, wliich was also proposed to be proved, does it not throw a shade of suspicion over the will, and tend to shed light upon the subject in dispute ? If she was a woman of such character and habits, and did so abuse his confidence, it was DEGREE OF PROOF REQUISITE. 429 an imposition, a deception practised upon that old man, calculated to induce a suspicion that the entire disposition of his large prop- erty to her and to her children was not the unbiassed act of his mind. It may be a small circumstance, but in such a case there is no circumstance having any bearing upon the question that is too minute to be admitted. It is apparent upon the face of the will thai the deceased Thomas Cramphin supposed the seven children of Caroline Calvert, therein provided for, were his ; and if in fact they were not his, but the spurious issue of her secret and lewd amours with other persons, and he was by reason of old age, debility, and infirmity physically incapable of begetting a child, and she did falsely, art- fully, and deceitfully, and by her undue and overweening influence and dominion over his mind, impose them upon him as his children ; and if George Calvert, believing them not to be his children, did aid and abet the false and deceitful imposition (all of which was tendered to be proved), — it was an imposition and deception practised upon him closely connected with and strongly bearing upon the matter in controversy. Under the influence of that false impression alone, and by no independent motive of affection, he may have been induced to give his estate to Caroline Calvert and her seven children named in the will, which, but for such impression so made, he might not have done. In Ux parte Wallop, 4 Bro. Cases, 90, and 4 Ves. 809, where, upon application for a writ de ventre inspidendo, it appeared that a woman who had lived with a man named Fellowes, had made him believe that she had been brought to bed of several children, which he was weak enough to suppose were his, and gave legacies to them, as her children by him, it was held that they were not entitled. And Clark and Others v. Fisher and Others, 1 Paige's Rep. 171, when the widow of the deceased procured from the almshouse a child, and imposed upon him as his niece the child of a deceased brother, to whom he gave a part of his estate, the will was set aside. As to the admissibility of proof relative to the question of paternity, vide 4 Term Rep. 350, 6 Term Rep. 330, and 2 Stark. Evid. pt. 4, 219. The cases in 1 Ves. & Beames, 422, and in 1 Merivale's Rep. 141, cited to show that evidence in relation to the paternity of these children could not be received, do not apply to this. In those cases no question arose concerning the due execution and validity 430 UNDUE INFLUENCE AND FRAUD. of the will, which had been established ; but they were merely questions of construction and identity, and of the sufficiency of description of the persons claiming under the will. As to the second bill of exceptions, the whole of the evidence that had been before rejected was again offered, on the ground that all objection to it, if any existed, had been waived by the state- ments of the opening counsel on either side, which is again insisted upon her*. We cannot assent to the proposition, that the state- ment by counsel of what they expect to prove in opposition to the statement on the other side, is sufficient to lay a foundation for letting in testimony otiierwise inadmissible. But this being the same evidence that we have endeavored to show should before have been submitted to the jury, when offered again in an embodied and more imposing form, we think it ought not to have been rejected. The instructions given by the court to the jury impanelled to try the issues, which form the subject of the third exception, re- main to be considered. They are seven in number, and were given on the prayers of the counsel for the defendants, most of them incorporating modifications prayed- by tlie counsel on the part of the" appellant. Of these are the first and second instructions, in both of which we concur. The first, as so modified, being a direction to the jury that if any part or clause of the will was first suggested by any other person, and adopted by the testator, it was necessary that such suggestion and adoption should not have been the result of his incapacity or weakness of mind, nor of fraud, circumvention, or undue influence, upon which, it was for them to decide from all the facts and circum- stances in evidence. And the second being substantially and practically a direction to the jury tliat, to invalidate the will, on the ground of fraud Or undue influence, it was necessary that it should have been induced by fraud, circumvention, deception, imposition, or undue influence operating upon and controlling the testator at the time it was executed, of wiiich, and in what degree he was influenced and controlled, it was for them to judge from all the facts and circumstances in evidence ; and that it was not necessary that such fraud or undue influence should have been immediately and directly exerted at the particular time at which the will was made ; and it is the only construction that can fairly be given to it. The third and seventh instructions, incorporating the modifica- COMPETENT TESTIMONY. 431 tions pi'oposed on the part of the counsel for the appellant, would have been proper if they had stopped there. But tlie addition by the court to each of them, that undue influence implied fraudulent practices, was wrong, seeing that there may be overweening and controlling undue influence without fraud, as has been before remarked and attempted to be shown. The sixth instruction, including the addition prayed by the counsel for the appellant, does not, as has been supposed, look to the immediate and direct resort to and exertion of fraud- ulent suggestions and undue influence at the time tlie will was made, nor to the exercise of it in the procurement of that par- ticular instrument, but to a general controlling undue influence and dominion, operating upon the testator at that time, and in- ducing its execution, which so far is right and proper. But the same instruction limits the inquiry of the jury to the fraudulent suggestions or undue influence of George and Caroline Calvert, or one of them, and of the otlier devisees, or some of them, and is applied to the whole of the first seven issues, whereas there are some to which it cannot relate. And if the will was the result of the fraudulent suggestions or undue influence of others, the eifect would, under the fourth and sixth issues, be the same. It is, there- fore, as so limited and applied, wrong. We cannot concur in that part of the fourth instruction in which evidence to prove or disprove the paternity of the seven children of Caroline Calvert, who are provided for in the will, is declared to be irrelevant to the issues, or any of them. The question, whether they were or not the children of Cramphin, was not put in issue ; but if they were not his children, it was, under the nature and circum- stances of the case, a fact relevant to and tending to prove a mat- ter that was put in issue, as we have before endeavored to show. In the fiftli instruction to the jury, that wlietlier any of the devisees named in the papers purporting to be the last will and testament, and codicils thereto, of Thomas Cramphin, have or have not a legal capacity to take under said instruments, is wholly irrelevant to the issues or any of them ; the court, we think, erred, and should have given the fifth additional instruction prayed by the counsel on the part of the appellant. It is true that the construction of these instruments, and whether the children named are capable of taking under them, are questions not put in issue. But the question, whether they 432 UNDUE INFLUENCE AND FRAUD. were improperly procured to be executed, is in issue. Caroline Calvert is, by the original will, made contingent devisee of the whole estate ; she has still living three other children, born after- wards, who by codicil or another will might have been provided for ; yet no provision was made in their favor, though they were as much entitled to his bounty as the seven who are named, and no reason is shown why they were not afterwards provided for, but left penniless. If, after their birth, the will had been altered, and a part of the estate given to them, to that extent would her interest have been affected ; for they were born free and capa- ble of taking, being subsequent to her emancipation, — whereas in the event of the others being incompetent to take, the entire estate was by the will to go to her. She was interested, therefore, in both the will and their manumission being made as they were, and also in there being no subsequent alteration in favor of the three children born afterwards, which, looking to all the other surrounding circumstances of the transaction, is surely one having a bearing upon tlie question in controversy, and proper to be pre- sented in argument to the jury, under the directions of the court. Besides, the same feeling that induced the testator to give such an estate to the children, born and living at the date of the will, if it was his own free and unbiassed act, would, as it would seem, if left to himself, have prompted him to make some provision for those who were born afterwards. The foregoing opinion presents the question of what kind and degree of in- fluence in the procurement of a will is consistent with its validity, and what is not, in a ve:y perspicuous and intelligible way. We now add, in further illus- tration of the same point, the opinion of another very eminent judge, Chief Justice Mdlen, of Maine, in Small v. Small, 4 Greenleafs Maine Reports, 222-225 : — " The next inquiry is, whether the instrument in question is to be disallowed as the last will and testament of Henry Small, on account of any unlawful impor- tunity and influence' of his wife, by reason of which bis mind was embarrassed and so restrained in its operation that he was not master of his own opinions in respect to the disposition of his estate. On this subject no precise and distinct line can be drawn ; but the influence exerted must be an unlawful influence, on account of the manner and motive of its exertion. " If the testator be compelled by violence, or urged by threatenings, to make his testament, the testament, being made by just fear, is ineffectual. Likewise, if he be circumvented by fraud, the testament loseth its force ; for, albeit honest and modest intercession or request is not prohibited, yet these fraudulent and malicious means, whereby men are secretly induced to make their testaments, COMMENTS ON THE TESTIMONY. 433 are no less detestable than open force. 1 Swinb. 22. So, if by over-importune- ment. As if a man make his will in his sickness by the over-importuning of his wife to the end he may be quiet, this shall be said to be a will made by con- straint, and shall not be a good will. Style, 427. If a wife by her virtues has gained such an ascendancy over her husband, and so riveted his affections that her good pleasure is a law to him, such an influence can never be a reason for impeaching a will made in her favor, even to the exclusion of the residue of his family ; nor would it be safe to set aside a will on the ground of influence, im- portunity, or undue advantage taken of the testator by his wife, though it should be proved she possessed a powerful influence over his mind and conduct in the general concerns of life, unless there should be proof that such influence was specially exerted to procure a will of such a kind as to be peculiarly acceptable to her, and to the prejudice and disappointment of others. The evidence on this point is, that, prior to the testator's marriage with the appellant, he was remark- ably fond of his daughter Mary, but that afterwards there was not only a cool- ness, but a great degree of alienation. His affections were withdrawn from her, and in several instances he treated her with extreme harshness and severity. It appears, also, that the mother-in-law said she could not live with her, and that she ought not to share in the estate equally with the rest, as she had been so troublesome. It is also in proof that the husband often said his wife was the best woman in the country, and that such an angel of a woman could not do wrong ; but no witness has testified as to her having exerted any influence over her hus- band in the disposal of his estate, though she expressed her opinion to one of the witnesses, as before stated, that Mary ought not to have an equal share with the rest of the family. The father also complained that Mary had a very ugly tem- per. Such is the essence of the testimony applicable to this head of the cause, and the inference is irresistible that the testator reposed the greatest confidence in his wife, and entertained the highest opinion of her virtues ; and there is strong ground for believing that his opinion and treatment of Mary after his mar- riage with the appellant were the consequences of her prejudices against Mary, and complaints and accusations to him respecting her conduct. Thus far she seems to have possessed and successfully exerted a general influence over her husband, and there is no proof in the cause that Mary did not give occasion for some of the complaints made by the testator and his wife against her, or that the wife was not deserving of the affections and confidence of her husband. But a will must not be set aside in consequence of such a general influence obtained in such a manner ; for in so gaining it she could not be liable to censure. Have we, then, any evidence by which we can be justified in the conclusion that she abused the confidence of her husband, and exerted an unlawful influence over his mind and feeling and passions, upon the subject of his will, so as to induce him to give his estate to her and her children, to the almost total exclusion of his children by the former marriage from the benefits of that estate ? We do not find any proof direct to this point, and we do not feel at lioerty to decide this cause or any other on mere conjecture. The law requires proot of facts, espe- cially when the object is to destroy and set aside an act, apparently deliberate, and executed with all usual and legal formalities. For the reasons above assigned we cannot sustain either of the three objections which we have been considering. The remaining one is of a different character. 28 434 UNDUE INFLUENCE AND FRAUD. " The fourth objection is founded on the nature of the devise to the wife, or rather of the condition on which the estate is devised to her, viz., ' that she shall hold it during the time she continues the widow of the testator, sole and unmarried.' This condition or restriction, it is said, is void, as against the policy of the law ; and in support of the objection the counsel has cited the case of Par- sons V. Winslow, 6 Mass. 169. Hence, it has been argued, the will ought not to be allowed. Without giving any opinion as to the effect of the above-mentioned condition or restriction, either as it may regard the estate devised to the appel- lant, or the subsequent devise and legacies to the several children, we would answer the argument by merely observing that, so far as the construction of the will, or any particular clauses in it, may be a subject of judicial inquiry, it is one of purely common-law jurisdiction, and not a question examinable by us, sitting as the Supreme Court of Probate. On the contrary, the question whether an instrument, purporting to be a last will and testament, ought to be approved and allowed as such, is one of purely probate jurisdiction, and so not examinable by us in virtue of our common-law jurisdiction. This distinction is well settled and established by our statute and uniform practice, as well as by the following decisions : Osgood v. Breed, 12 Mass. 625 ; Dublin v. Chadbourn, 16 Mass. 433 ; Laughton v. Atkins, 1 Pick. 636 ; and Shumway v. Holbrook, id. 114. This objection must share the same fate, and fail, as the preceding; and the con- sequence is, that the decree appealed from must be reversed, and the will ap- proved and allowed, and an exemplification of this decree be remitted to the Probate Court, that such proceedings may there be had touching said will, and in conformity to said decree, as the law requires.'' 9. Elliott's Will, -2 J. J. Marshall's Kentucky Reports, 340. 1829. One may be capable of making his will, although advanced in life and greatly enfeebled both in body and mind, so long as he remains capable of taking an understanding survey of all his estate, and of dictating its disposition in a connected and intelligible manner, according to his wishes, without being prompted or swayed by direct intermeddling from officious or designing rela- tives or pretended friends. And the mere fact that the testator relied almost exclusively upon the assistance and advice of his son in all business matters, and might easily have been in- fluenced by him, is not sufficient to invalidate the will. It must be shown, either from positive testimony, or the unjust and unreasonable provisions of the will, or from some other satisfactory proof, that such influence was, in fact, unduly exercised in procuring an unjust disposition of the estate. The opinion of the court was delivered by — Underwood, J. The Bracken County Court, at their May term, 1828, admitted to record a paper, purporting to be the last will and testament of William Elliott, deceased. To reverse the order then made, Field and M'Olanuahan have prosecuted a writ of error COMMENTS ON THE TESTIMONY. 435 against the executor, they being entitled to a share of the estate, in case this court decide against the will, which is assailed upon two grounds. 1st. The want of capacity, or soundness of mind, on the part of the testator. 2d. The undue influence exercised over him, by his son and executor, who, after his motlier's death, will be, under the will, entitled to the estate to the exclusion of his brothers and sisters, and their heirs. In regard to the first point, the subscribing witnesses to the will declare that they discovered, at the time of its execution, nothing like alienation of mind. On the contrary, they bear testimony that the testator possessed a degree of mental or intellectual power, which qualified him to dispose of his property by last will. The draftsman of the will stated that the testator had a paper once written for his will, but never executed, which the draftsman read over, and then inquired what alterations the testator wished him to make ; that the testator then gave him directions as to the altera- tions he wished made, and that he wrote the will, according to the directions received. The will, after it was written, was twice read to the testator. He said.it was right. He rose in his bed and signed it, by making his mark ; the subscribing witnesses, three in num- ber, attesting it in his presence. The facts detailed by the drafts- man of the will leave no doubt on our minds as to the sanity of the testator at the time. He also stated that he saw nothing like dictation to the testator, on the part of his son William, who is supposed to have exercised .undue influence over the old man, his father. Many other witnesses, introduced to testify as to the sanity of the testator, stated conversations had with him, and business trans- acted with him, all evidencing the existence of the powers of mem- ory, judgment, and reason, both before and after the date of the will, in relation to a variety of subjects. These witnesses abun- dantly confirm the opinion that the testator was possessed, at the date of liis will, of such soundness of mind as to have legal capac- ity on that ground to make a valid will and testament. The opposing testimony showed that the testator was, for two years previous to his death, much afflicted by disease and infirmity of body; that he was about seventy years of age, and that he sus- tained great losses, in consequence of having been bound as surety 436 UNDUE INFLUENCE AND FRAUD. or one of his sons, a constable, who had failed. On that account the old man was harassed by lawsuits, was compelled to sell negroes and other property, for the purpose of raising money ; and often expressed apprehension and fear that he would be entirely brolien up, and that his aged wife would be stripped of every thing, and be left in abject poverty. These afflictions, of body and mind produced, in the opinion of several witnesses, such mental debility as to render the testator incapable of making a sound disposition of his property, or of exercising a discriminating judgment in regard to it. But these witnesses did not detail any acts or expressions on the part of the testator, which established habitual, much less constant, alienation of mind. Their evidence amounted to no more than showing that age, disease, and sorrow had combined to enfee- ble the understanding of the testator, not to extinguish it. It can- not be admitted that intellectual feebleness is sufficient to deprive an adult man or woman of the right guaranteed by law to dispose of their estates, by last will and testament, unless the weakness be to such an extent that the disposition of the estate attempted bears on its face intrinsic evidence of a deranged and powerless under- standing. A mind not wrecked by a fixed and settled derangement, partial or general, although weak, if capable of taking a survey of all the testator's estate, and capable of dictating in a connected and intelligible manner a disposition of the property, according to its wishes, without being prompted or swayed by direct intermeddling from officious or designing relatives or pretended friends, in ou^ opinion, is sound, in the contemplation of the Statute of Wills. That the testator in the present case is shown to have possessed intellect according to this rule, is established by an irresistible pre- ponderance of evidence. The disposing mind and memory is more satisfactorily shown in this instance than it was in the case of Turner's first will, established by this court. 1 Littell, 103. Upon the second point, many witnesses detailed conversations had with William Elliott, the son of the testator, which evince much anxiety on his part to secure to himself the property of his father. It is also shown that the testator, under the apprehension of being reduced to want, in consequence of the debts pressing him, on account of his son, tlie constable, was willing to convey his prop- erty to his son William, or any other friend, with a view to save it. With this view a consultation was had with one of the witnesses, who dissuaded him from it. It is also shown that, for some time CANNOT BE PRESUMED WITHOUT PROOF. 437 before his death, his son William managed his affairs for him, and that he sometimes declined transacting business with those who visited him, and referred them to his son. Under these circum- stances, it may be readily believed that the son's influence was not inconsiderable with the father. It is, moreover, shown that the testator was illiterate. He declared to one of the witnesses he could not write. Hence, there is great reason, at his advanced age, to rely on the assistance of his son in doing business, and it would be very natural for him to yield his assent to almost every proposition in relation to business that his son would make. But there is no proof that William Elliott, Junior, exercised any influ- ence which the ascendancy he had acquired rendered possible in controlling his father, and inducing him to dispose of his property, by the will, contrary to his settled inclination and judgment. A weak mind; if left to itself, may make a will, which we would not disturb, but which would be set aside, if it were shown that the thoughts and arrangements of such a mind were operated upon by the influence of a child who thereby promoted his interest at the expense of his brothers and sisters. But such undue and improper influence must be exercised and proved. In this case it has not been done. It is shown, we admit, that some years before tlie testa- tor's death he had a sale of property among his children, with a view to distribute it, and kept an account of the values, according to the bidding, advanced to each, in order thereafter to make an equal distribution among them, as he declared ; after this, and before the will was made, his circumstances experienced a great change. One son brought ruin upon him by failing as a constable ; another seized and took off some horses without permission. The testator complained that his children, except William, had for- saken him. If these things were true (and that they were, the evi- dence conduces to prove), he had reason to declare, as one of the witnesses said he did, that those who had thus forsaken him should get no more of his estate. Under such circumstances, to secure it to his wife for life, with remainder to his son, who had waited on him, and dong his business in the last years of his existence, was reasonable, and just as it should be ; especially when, at the date of the will, it was very uncertain whether any thing would be left after the payment of debts, and what seems to be left is not con- siderable, and scarcely worth distribution among so many chil- dren. 438 UNDUE INFLUENCE AND FRAUD. The foregoing case is well calculated to illustrate a very common phase of the law of wills. The testator was in a very enfeebled state, and almost as much in the power of his son as an infant in the power of its nurse. But still, when left to himself, he had capacity to understand and make his will, which seems to have been reasonable in its provisions ; and, there being no evidence, either positive or presumptive, that any improper influence was exercised by the son, it was prop- erly established. In the later case of Harrison's Will, 1 B. Monroe, 361, 1841, the same ques- tions are very judiciously handled by Ewing, J. It is here held that arguments and persuasions used by the testator's children to induce a devise to a brother's or sister's children, who were poor, is an influence worthily exerted, and free from selfishness, and should not condemn the will. The testator may be assisted in making his will by the honest suggestions or advice of others, as well as in any other business. And the fact that some of the provisions of the will are in some respects different from what they would otherwise have been, is no ground of impeaching the will, unless the testator was deceived, or misled, or influenced by unfair means. " The decedent was, from old age and intemperance, of feeble body and mind at the time he made the will offered for probate, which bears date the 8th of November, 1838, and was at that time, most likely, incapable of digesting, arranging, and consummating a complicated contract; and the proof, by sub- scribing witnesses, as to the manner and circumstances attending the presenta- tion of the will to the testator, and acknowledgment by him, are rather equivocal and unsatisfactory. But when we take into consideration all the circumstances proven, all reasonable doubt and difficulty are removed. His mind, as evident from the proof, had often been exercised on the subject of a disposition of his property after his death, and, when aroused to action, could easily be brought to comprehend and embrace that disposition of it which he had often contemplated ; and it seems that the will in question contains substantially, in all its important features, the same disposition of his property that he had long intended, and that it is almost a precise copy of a will which was entirely dictated by himself in May previously, and which, on its face, contains strong intrinsic evidence of thought, memory, reflection, and judgment, and relying upon the opinion of witnesses as to his capacity to make a will, as well as the facts detailed by them, tending to that conclusion, there is a decided preponderance in favor of his capacity. " As to the difference which he made in the entire disposition of his property between his sons and daughters, it seems that this was his settled purpose and intention, long entertained and determined on many years before ; and the dif- ference or inequality is not made in the will, but was made in the previous advancements which were made when he was in perfect health and vigor of mind and body. , " As to the influence which is charged to have been exerted over him by his sons, we think that there is no ground to impeach the will on that score. AH the testimony concurs in proving him to have been a man of extraordinary deter- mination and fixedness of purpose, and difficult to be warped from the dictates of his own judgment by others. All the influence that the testimony tends in the slightest degree to establish, was an influence by argument and persuasion to EFFECT OP UNLAWFUL RELATIONS. 439 induce him to give one share" of his estate to the children of a deceased sister who was poor, so as to place them on equality with his children who were living, and who were all in better circumstances. This was an influence worthily ex- erted, free from selfish or sinister ends, and in behalf of others, who were as worthy objects of the testator's bounty as any of his own children, and which subtracted from the provision which the parent designed for the sons. We can- not believe that such an influence should condemn a will. If by argument or reasons presented to the mind of a parent, by children or others, he becomes convinced, and makes his will accordingly, it is no less his will than if made by the voluntary action of his own mind, independent of such arguments or reasons. " A man may be aided by the views of others in coming to a just conclusion in this matter of disposing of his property by will, as well as in any other trans- action in life ; and if the influence thus attempted is disinterested, no inference can arise that it was unduly or improperly exerted, or that the devisor was deceived or deluded by unfair means into the publication of a will variant from his then deliberate judgment. " Upon the whole, without going into an examination and analysis of the evi- dence in detail, we are satisfied that the testator was, at the time of making the will in question, of competent disposing mind and memory, and that the will was duly published as his last will and testament, and ought to be admitted to record as such. " It is, therefore, the opinion of this court that the judgment of the County Court rejecting the will be reversed, and that the will be admitted to record in this court, and a copy certified to the County Court of Fayette for record. And the appellant is entitled to his costs in this court." III. Wills procured through the Influence of Unlawful Eelations cannot be maintained. 1. Dean v. Negley, 41 Pennsylvania State Reports, 312. 1861. Sam Case, 1 American Law Register, New Series, 283. While the law recognizes the natural and ordinary influence of the lawful rela- tions of life in procuring the benefactions of others, sustaining correlative re- lations to them, either by will or inter vivos, it does not regard a will produced by the influence of illicit relations as valid. Where an unlawful relation existed between the testator and those who are bene- fited by his will, the law presumes such provisions of the will to result from the influence of such unlawful relation, and pronounces the will, therefore, to be presumptively unlawful ; but the question must be decided by the jury. 440 UNDUE INFLUENCE AND FRAUD. The opinion of the court embraces all the facts necessary to be stated, and was delivered by — LowEiE, C. J. The will of a man who has testamentary capacity cannot be avoided merely because it is unaccountably contrary to the common sense of the country. His will, if not contrary to law, stands for the law of descent of his property, whether his reasons for it be good or bad, if they be indeed his own, uninduced by un- lawful influence from others. Lawful influence^ such as that aris- ing from legitimate or social relations, must be allowed to produce its natural results, even in influencing last wills. However great the influence thus generated may be, it has no taint of unlawful- ness in it ; and there can be no presumption of its actual unlawful exercise merely from the fact that it is known to have existed, and that it has manifestly operated on the testator's mind as a reason for his testamentary dispositions. Such influences are naturally very unequal, and naturally productive of inequalities in testamen- tary dispositions ; and as they are also lawful in general, and the law cannot criticise and measure them so as to attribute to them their proper eff'ects, no will can be condemned because the exist- ence of such an influence can be proved, and because the will con- tains in itself proof of its effect. It is only when such influence is unduly exerted over the very act of devising, so as to prevent the will from being truly the act of the testator, that the law con- demns it as a vicious element of the testamentary act ; so the law always speaks of the natural influence arising out of legitimate relations. But we should do violence to the morality of the law, and therefore to law itself, if we should apply this rule to unlaw- ful as well as to lawful relations ; for we should thereby make them both equal in this regard at least, which is contrary to their very nature. If the law always suspects and inexorably condemns un- due influence, and presumes it from the nature of the transaction, in the legitimate relations of attorney, guardian, and trustee, where such persons seem to go beyond their legitimate functions, and work for their own advantage, how much more ought it to deal sternly with unlawful relations, where they are, in their nature, relations of influence over the kind of act that is under investigation. In their legitimate operations those positions of influence are re- spected ; but where apparently used to obtain selfish advantages, they are regarded with deep suspicion ; and it would be strange if unlawful relations should be more favorably regarded. EFFECTS OF UNLAWFUL RELATIONS. 441 And the voice of the law on this general subject is distinct and emphatic, transmitted through many generations, and embodied in many Latin maxims, of which the following are some : " Nemo com- modum capit de injuria sua. Nemo ex proprio dolo consequitur actionem. Prustra legis auxilium petit, qui in legem committit. Pacta, quae contra bonos mores sunt, nullam vim habent. Ex dolo malo, ex malificio, ex turpi causa, ex pacto illicito, non oritur actio. Ex injuria non oritur jus. Pacta, quae turpem causam habent, non sunt observanda. In odium spoliatoris, omnia prsesumuntur." All of which may be summed up in one sentence : No one shall derive any profit through the law by the influence of an unlawful act or relation. The ordinary influence of a lawful relation must be lawful, even where it affects testamentary dispositions, for this is its natural tendency. Tlie natural and ordinary influence of an unlawful rela- tion must be unlawful, in so far as it afiects testamentary disposi- tions favorably to the unlawful relation and unfavorably to the lawful heirs. Ordinary influence may be inferred in both cases, where the nature of the will seems to imply it ; but in the former case it is right because the relation is lawful, and in the latter it may be condemned, together with all its effect, because the relation is unlawful. It is not inconsistent with this, that it has been decided that the devise of a wife to her second husbaad was not affected by the fact that she knew she had a husband living at the time of her second marriage, even though the second husband heard of it before her death ; for this shows no conscious transgression of law by him in marrying her, and her heirs could not set up her fraud on him as a reason for avoiding her will. 8 Harris, 329. There can be no doubt that a long-continued relation of adulter- ous intercourse is a relation of great mutual influence of each over the mind and person and property of the other. History abounds with proofs of it, and it requires no very long life or very close observation of persons around us in order to reveal the fact. Our divorce law of 1816 shows its abhorrence of the crime and its influ- ence, by forbidding any one, divorced for adultery, from marrying his or her particeps criminis while the injured consort is living, and by disabling a woman thus divorced from devising or conveying her property, if she cohabit with her paramour. And the canon law, though it allowed children born before marriage to be legiti- 442 UNDUE INFLUENCE AND FRAUD. mized by a subsequent marriage, refused this privilege to children born of adulterous intercourse, and did not allow even a devise in their favor from the faulty parent. If, then, there was such a relation between the testator and Mrs. Bolton, at the time of the making of this will, as was offered to be proved, we think that that fact, taken in connection with the devise to Mrs. Bolton's daughters, is evidence of an undue influence ex- erted by her over the testator and affecting the dispositions of his will, and that it may justify a verdict against the validity of the will. I have myself thought that it raised a presumption of law of undue influence, but we do not so decide, but leave it as a question of fact merely. We are, therefore, of the opinion that the evidence offered ought to have been received. In Rudy v. Ulrich, 69 Penn. St. 177, it was held that the existence of an unlawful relation on the part of the testator will not justify the presumption of undue influence by the other party to such relation, who is benefited by the will, but not to an unreasonable extent. So it is here held that a will may be void in part, and otherwise valid. See also Kessinget v. Kessinger, 37 Ind. 341. 2. Monroe v. Barclay, 17 Ohio Reports, New Series, 302, 1867. Undue influence or fraud, to invalidate a will, must be shown to have had some effect upon the testator in producing the very act of the will. It must impose some restraint upon him, whereby he is unable to exercise his free-will in dis- posing of his property. How far the influence of an unlawful relation between the testator and another destroyed the freedom of the will of the former, is a question of fact to be determined by the jury. To constitute undue influence in procuring a will, ' it must overcome the free agency of the testator. The facts sufficiently appear in the opinion of the court, deliv- ered by — Day, C. J. The original case was a proceeding in the Court of Common Pleas, to contest the validity of the last will of Mary McClelland, deceased, upon three grounds : 1. That, at the time of executing the will, she was not of sound mind and memory ; 2. That she was fraudulently induced to make the will ; 3. That the will was procured by undue influence of the defendants upon the testatrix. STATEMENT OP CHARGE AND BEQUESTS. 443 The issues joined by the parties upon these grounds were tried to a jury, and a verdict was rendered in favor of the defendants, sustaining the will. The testimony is not fully set forth in the bill of exceptions ; it is, therefore, to be presumed that the finding of the jury was, under the charge of the court, warranted by the evidence. The only errors insisted on here arise upon exceptions taken by the plaintiffs to the refusal of the court to charge tlie jury, as re- quested by them, and to the charge as given. The plaintiffs sub- mitted to the court twenty-one propositions in writing, which they requested the court to give in its charge to the jury. It is stated in the record that " the court refused to charge as requested, except as stated " in the charge given to the jury ; and that the plaintiffs excepted to the " refusal to charge as requested, and to the charge, so far as the same is contrary to said request." The charge and the propositions submitted by the plaintiffs are fully set forth in the bill of exceptions, but no reference is made in the charge to any one of the propositions ; so that it is not specified in the record which one of the propositions the court refused to give as requested. This is left to be discovered by seeing what part of the plaintiffs' requests were not embraced in the charge given. It will be seen, moreover, that the plaintiffs excepted to the charge so far only as the court omitted to adopt the written propositions submitted by them, and so far as the charge was contrary thereto. It is not deemed necessary, for the purpose of presenting the questions made by the exceptions, to recite here said propositions, or the charge in full. Suffice it to say, that most of the proposi- tions were substantially given in the charge to the jury, as re- quested. This Qoes not seem to be strenuously controverted by the counsel for the plaintiffs, except as to the propositions num- bered from sixteen to twenty inclusive. Indeed, the whole con- troversy arising out of the neglect of the court to charge as requested, and upon the charge as given, may be fairly presented by stating these five propositions, and the charge relating to them, The propositions are as follows : — 16. "If, previous to the will being made, John McClelland, or any person acting in concert with him, took advantage of imper- fect though not absolutely unsound judgment on the part of the testatrix, and, by advice known by them to be false, induced her to believe that she owed to Erastus Jacobs no duty as a wife, and she 444 UNDUE INFLUENCE AND FRAUD. made the will under the continued influence of that persuasion, the will is void." 17. " That, for this purpose, it makes no difference whether it relates to matters of fact merely, or whether it related to matters of judgment only, provided it related to matters about which she, in her imperfect condition of judgment, might be, and actually was, misled by the advice." 18. " If, at the time of making the will in question, Mary Jacobs, the testatrix, from false advice knowingly given by John McClel- land, or by any other person acting with him, believed that Erastus Jacobs was not her lawful husband, when in fact he was, and that John McClelland was her lawful husband, when, in fact, he was not, the will is void." 19. " It makes no difference whether the false advice thus given was in relation to some matter of fact, or in relation to some mat- ter of law, concerning her relation to Jacobs and McClelland, pro- vided she, being then possessed of impaired powers of judgment, believed the advice to be true, and acted accordingly." 20. " If a man knowingly and wrongfully marries and cohabits in a state of adultery with a woman who is the lawful wife of an- other man, and whose husband has not forfeited his claims to her comfort and society, and, by the influence of such marriage and cohabitation, procures a will from her in his favor, and disinherit- ing her real husband, that will is void for illegal influence." It is to be observed that these propositions make no allowance for any other facts or circumstances which might modify the assumed facts, but assert that the facts assumed would, under any circumstances, invalidate the will. Under the sixteenth proposition, it is assumed tlftit it would make no difference when, or for what purpose, the testatrix was induced to believe that she owed to Erastus Jacobs no duty, — no matter if it was for a purpose having no reference to a disposition of her property ; still, it is assumed that if the advice was ever given for any purpose, and tlie false belief continued, the will is void, although the advice had no effect whatever in producing the will. Under the seventeenth proposition, it is claimed that the will would be void, if the testatrix was misled by the false advice, with- out assuming that she was thereby induced to make the will, or that such advice had the least influence on the testamentary act. Indeed, these two propositions, taken together, assume that, if the STATEMENT OF THE CHARGE AND THE LAW. 445 testatrix was, at any time and for any purpose, misled by the false advice of McClelland as to her duty to Jacobs, and remained under such false impression when the will was made, though it had no relation thereto, and in no way tended to produce it, still the will was void. The same may be said, substantially, as to the eighteenth and nineteenth propositions. In the nineteenth, which is the most ex- plicit, it is not assumed that, in acting upon the false advice, she did so in relation to the will. It is undoubtedly well settled, that, to invalidate a will for fraud or undue influence, it must appear that the fraud or undue influ- ence had some effect " upon the testator, in producing the very act of making his will." 1 Redfield on Wills, 516, 524, 525, 52i7. But, however this may be, the most that can be claimed of these four propositions is, that they are based on that kind of undue in- fluence which amounted to fraud upon the testatrix. This is the gist of them ; and upon a fair construction of the charge, so far as they tended to induce the will, they were, substantially, given to the jury. It is difiicult, therefore, to see wherein the plaintifis were not permitted to have all the benefit of these propositions, to which they were entitled. Upon this point, the court charged the jury " to inquire whether any fraud or misrepresentations were resorted to, to induce the execution of this will. If such fraud was exercised, then it would, however slight, destroy the validity of. the will; that is, if it was sufficient to, and has in your judgment tended to, induce the exe- cution." Here the court, in reply to these four requests, told the jury that if " any fraud or misrepresentations were resorted to, to induce the execution of the will, . . . however slight, ... if it tended to induce the execution " thereof, the will was void. If these requests are construed as relating to the act of the tes- tatrix in making the will, then the plaintiffs had the full benefit of them in the charge. In that case the record does not show affirma- tively that they were refused by the court, or that they are em- braced in the exceptions taken by the plaintiffs. But the point that seems to be chiefly relied on by the plaintiffs is made on the twentieth proposition. Upon the facts there as- sumed, it was claimed, as a presumption of law, that the will was produced by illegal, and, therefore, undue influence. The court 446 UNDUE INFLUENCE AND PEAUD. did not accede to this proposition, but left the question of undue influence to be determined by the jury, under the following instruc- tions relating to this and other propositions : — " Inquire whether through the exercise of force, or by fear pro- duced, or, in any manner, such an influence was exerted over her as to induce her to make a disposition of her property, contrary to her own will and inclinations ; or whether such an undue and overruling influence was exercised upon her mind as to control or overpower her own inclinations and judgment, or induce her, with- out or contrary to her own intention and will, to execute the paper. If either of these propositions are found in the aflirmative, it would defeat the will." Construing the charge strongest against the plaintiffs, it would seem that the court intended to be understood as holding the law to be, that, in the absence of fraud, no matter by what influence a testator may be exercised, so long as it does not overpower his in- clinations and judgment, and induce a disposition of his property contrary to his own wishes and desires, his will cannot be invali- dated for undue influence. Indeed, it is not denied but that the charge, as applied to ordinary cases, may be sustained by both rea- son and authority ; but it is claimed that a distinction is to be taken between influences that are lawful and those that are un- lawful. The gist of the claim is, that the will was void, because it was induced by influences gro^^ing out of an unlawful relation. No matter for what reason the testatrix may have been abandoned by her husband, or why she may desire to disinherit him and her kin- dred, or what obligations may have arisen from the unlawful rela- tions ; no matter if the will was made without any influence of the devisee, other than that which sprung from their association ; and no matter if it was made in accordance with her own inclinations and judgment ; still, it is assumed that the will would be void. If no other objection than this was urged against a gift of property between living parties, it would hardly be contended that it would be void. It is difficult to see why a bequest or devise should be subjected to a more stringent rule. Every will, it may fairly be presumed, is prompted by influences strong enough to induce its provisions ; and it would seem, there- fore, that the most that ought to be claimed from such influences, in the contest of a will, is, to have them submitted to the jury, to DEFINITION AND LIMITS OF THE SAME. 447 enable them to determine whether the testator was misled, or so influenced thereby as to affect his own free choice and judgment in the disposition of his property. The power to make a will is granted by the statute to " any person of full age and sound memory ; " and under its provisions the will is to be admitted to record as valid, when " duly attested and executed, and the testator at the time of executing the same was of full age and sound mind and memory, and not under any restraint." S. & 0. Rev. Stat. 1615, §§ 1, 15. Restrictions are imposed upon none, but all are alike left to the exercise of their own free wills and inclinations in the disposition of their property. The power thus given to dispose of property does not depend upon the disposition made thereof, nor is it re- stricted to those who may employ it only for just and wise pur- poses ; but all upon whom the right is conferred may use it without " any restraint." Indeed, it is contemplated by the statute that this is the only wa^ in which it can be exercised. Freedom from restraint is essential to the validity of a will. So careful is the law in this respect, that it will not uphold a will that has been induced by restraint upon the testator, whether in the form of fraud prac- tised upon him, or any other influence that destroys' the free exer- cise of his own will. 1 Redfield on Wills, 524, 527. It would be inconsistent with the right conferred by the statute, and with the spirit of the construction it has hitherto received, to sanction restraints upon a testator, based alone on the character of the motives or causes which may have induced any disposition of his property that he may make while in the free exercise of his own inclinations and judgment. He may give his property to whomso- ever he pleases, and his motives or reasons therefor, so long as he is " not under any restraint," are matters of his own conscience, for which he is not accountable to the law. His will, executed in conformity to the statute, if it be his own, and not in any sense the will of another, cannot be invalidated, however much its provisions may be disapproved by others. It is claimed, in the proposition under consideration, that the will, upon the facts therein assumed, would be void for " illegal in- fluence." In the solution of tlie question made by this proposition, much of the difficulty disappears when we consider what " influ- ence," as applied to the invalidation of wills, is " illegal." Every will, as before remarked, is the result of influences strong enough 448 UNDUE INFLUENCE AND FRAUD. to produce it. Since, then, it is the policy of the law to secure to every one the right to dispose of his property in accordance with his individual will, that influence alone is illegal which places the freedom of a testator's will under some kind of restraint. If this be so, it follows that it matters not what may be the origin or char- acter of any influence operating upon a testator, if it does not place him " under any restraint." It would seem to follow, also, that it would be equally immaterial how an individual may have acquired an influence over a testator, unless such influence is exerted in a manner that tends to restrain the free exercise of his will in the disposition of his property. It is claimed in this proposition that the influence that produced the will was illegal, only because it sprung from an unlawful rela- tion. If this be so, then the principle would be equally applicable to any other unlawful relation, and would destroy a will made under influences springing therefrom, although the testator, with- out being placed under restraint, could not be j)ersuaded to make a will otherwise than as prompted by such influences. However reprehensible such influences may be, if a testator voluntarily chooses to be actuated by them, it is a privilege he may enjoy under the law that secures to every one alike the right to dispose of his property without restraint upon his own judgment and con- science. It is undoubtedly well settled that a will cannot be invalidated because it was produced by influences springing from a lawful marital relation, unless such influence has been unduly exerted. The influence arising from an unlawful marital relation may be as strong as that of the other ; but, unless it impairs, more than tlie other, the free exercise of the testator's will, it is difificult to see how the influence arising from the unlawful relation is necessarily such undue influence as will invalidate a will, while that of the other will not. It would seem, upon the principles already stated, that the question would be essentially the same in either case, — whether the influence had been, in fact, exerted in restraint of the testator's will. However justly an adulterous marital relation may be reprobated, it by no means follows that every will, produced by influences arising from that relation,is tainted with such turpitude that, to uphold it, would " do violence to the morality of the law." This is the theory upon which the claim of the plaintiffs rests ; but the moral test will not in all cases avail. If the principle be INFLUENCE OF UNLAWFUL RELATIONS MATTER FOR JURY. 449 correct, it makes no difference which party makes the will : whether the devise be from the woman to the man, or the man to the woman, it would be equally void. It would be easy to suppose cases where considerations of moral obligation, as well as that of public duty, would require a man to make suitable provision for a woman with whom he had sustained this relation. In such cases it would do no violence to the morality of the law to sustain such provision, though it be made by will, and induced solely by influences springing from! the unlawful cohabi- tation. It may, however, be admitted that the influences growing out of an unlawful marital relation do not stand, and should not be per- mitted to stand, upon an equal footing with those coming from the lawful relation ; but the question recurs, whether the difference is in matter of law or of fact. If it be the former, then every will iiiduced by an unlawful relation is void, though the testator might not have beeii " under any restraint ; " but this, it has been shown, is contrary to the general policy of the law ; if it be the latter, then the proof of the unlawful relation should go with the other evidence to the jury, to enable them to determine the ques- tion of undue influence. We think this would be in accordance with the law, and, in gen- eral, best subserve the ends of justice. We have not been furnished with authorities, nor do we see any sufficient reason to warrant us in making this class of cases an exception to the general principles relating to the validity of wills. It is true that the position of the counsel for the plaintiffs is strongly supported ohiter in the able opinion delivered in the case of Dean v. Negley, 41 Penn. St. Rep. 312, ante, p. 439. The point there ruled, however, went to the extent only that proof of the making of a will under, and in the direction of, an unlawful relation, like that in this case, was such evidence of undue influence " that it might justify a verdict against the validity of the will;" and it was held, therefore, that it was error to exclude it from the jury. That the same court must hold the question to be one " of fact merely," and not a " presumption of law," is shown in a still more recent case, where it was declared that " undue influ- ence, to avoid a will, must be such as to overcome the free agency of the testator, at the time the instrument was made." Eckert v. Mowry, 43 Penn. St. Rep. 46, ante, p. 418 ; 1 Redfield on Wills, 584. 29 450 UNDUE INFLUENCE AND FRAUD. The proposition which the counsel for the plaintiffs requested the court to give in its charge to the jury, although separately num- bered, were in fact, many of them, a connected series of proposi- tions, dependent one upon another ; some of which, we have shown, the court could not properly give : other independent propositions were properly refused, as has been shown, and the remaining ones were embraced in the charge. There was, thei-efore, no error in refusing to charge as requested. For the reasons already stated, we think that there was no error in the charge as given to the jury by the Court of Common Pleas. It follows that the District Court rightfully affirmed the judgment of that court; and that the judgment of the District Court must, therefore, be affirmed. By comparison of the two cases here reported and the others referred to, upon the question of the influence of unlawful relations in procuring unjust or unequal dispositions of property, we shall be able to mark the exact difference between the lawfulness of the effect of the influence of relations which the law recognizes and upholds, and that of relations which it condemns. The broad dis- tinction between the two is, that the law upholds and approves of the normal and healthy influence flowing from legitimate relations. The mere fact that a husband or father is induced to bequeath more to his wife or child than he would otherwise have done, and more than the law regards as equal and just, in the absence of any will, is no ground of impeachment of the will ; because the law approves of such influences, and gives a man the power to make unequal distribution of his property, by will, for the very purpose of rewarding the dili- gent, faithful, and honest devotion of those who have bestowed faithful and affec- tionate service upon him, in health and in sickness, in his strength or in his in- firmity, old age, and decrepitude. And we shall find very numerous cases in the books where it is declared that influence exercised through service and atten- tion, in lawful relations and in good faith, and not with the selfish and dishonest view to the obtaining of reward by the bequest, is declared no objection to the validity of the will. Miller v. Miller, 3 S. «& R. 267 ; s. c. ante, p. 410 ; Davis v. Calvert, 5 Gill & Johnson, 269 ; s. c. ante, p. 420. But where a lawful influ- ence is carried, purposely, to the extent of procuring an unjust will, it cannot be maintained. Taylor v. Wilburn, 20 Mo. 306 ; s. c. ante, p. 412 ; Marshall v. Flinn, 4 Jones' Law, 199 ; s. o. ante, p. 413. But all influence exercised through the power acquired by an unlawful rela- tion the law condemns, and regards as improper and undue, whenever it is put forth for the purpose and with the design of producing an unjust will. And, not a little to the discredit of human character, it is, unfortunately, too true, that the influence of unlawful sexual relations is not unfrequently more effective upon the parties than any influence growing out of recognized relations. WILL DICTATED BY PRINCIPAL BENEFICIAET. 451 IV. Effect of "Will being written or dictated by Principal Beneficiary. 1. Tyler v. Gardiner, 35 New York Reports, 559. 1866. The burden of proving that a will was obtained by undue influence rests upon the contestants. Where a will is produced by false representations made to the testatrix, either as to those who, standing in the same relation to the testatrix, as the beneficiaries under the will, have been provided for in a very much inferior manner, or as to the merits and good conduct of the actual beneficiaries, it cannot be main- tained. A will so procured is fraudulent. As important evidence under such an issue, it is proper for the triers to compare the former testamentary intentions of the testatrix with those ultimately adopted by her, and also to consider the reasonableness of such ultimate provisions. The position and conduct of the principal beneficiary toward the testatrix are also important matters bearing upon such issue. The fact that the change in the testamentary dispositions is made at the last moment before the decease of the testatrix ; that all others of the family and near friends of the testatrix were excluded from being present at the execu- tion of the final will, and that it was dictated exclusively by the principal beneficiary, and contains many statements of fact and suggestions, which are either false, or, having no just bearing upon the subjects upon which they are introduced, cannot fail to have an important bearing upon the question of the freedom of action of the testatrix. The facts sufficiently appear in the opinion of the court by — Porter, J. There is an almost wearisome monotony in the con- formity of the facts developed on the hearing, with the familiar and recognized indicia of contrivance and undue influence. There are few of the reported cases, in which wills have been condemned, presenting such a concurrence of circumstances unfavorable to the establishment of the instrument. If they were susceptible of contradiction or explanation, the sources of proof were abundant. The respondent was a competent witness. Most of the material facts were within her personal knowledge. She was a prominent actor in all that related to the will and in the series of transactions which led to so complete a revolution of intention on the part of the testatrix. She was surrounded by a numerous household ; the important events were of recent occurrence, and they transpired at 452 UNDUE INFLUENCE AND FRAUD. her own residence. When we find the party, whose right and inter- est it was to countervail the force of the facts by evidence, content to leave them unrebutted and unexplained, and to abide by the conclusions to which they so clearly tend, we have nothing to do but to draw the inevitable inference, and, applying the settled rules of law, to sustain the rejection of the will. It may be that the whole truth of the case is not before us ; that facts exist, which, if proved, would relieve it from some of its unfavorable aspects ; but we are bound to take the evidence as we find it, and to give it effect in accordance with our clear convictions. It will facilitate a consideration of the legal questions involved, to precede it with a condensed analysis of the more material facts, grouped with reference not merely to the order of time, but also to their mutual dependence and relation. The property of the testatrix was mainly derived from her chil- dren, by voluntary and equal gift of their shares in their paternal inheritance. That her ultimate estate came to be so considerable was mainly due to the fidelity and care of her son David, who re- linquished a profitable business, at the age of thirty-three, to assume the management of her property ; who devoted himself faithfully to that object, without recompense, until he was forty-six years old ; and who was then ignominiously dismissed by his mother, without cause, through the active and controlling influence of a younger sister who had recently become a member of the house- hold. He had been educated to a profession which he had never practised; had married, when he had just expectations of a liberal provision from his mother's estate ; and," so far as the evidence discloses, he had, at no time, been wanting in filial duty or affec- tion, or received from her a mark of displeasure or unkindness down to the hour when, by a letter written by her, corrected by his sister and delivered by a messenger, all being under the same roof, he was suddenly ordered to leave her house. Harry Beeckman was an orphan boy of thirteen ; an inmate of the family, and dependent upon the bounty of his grandmotiier, only because she had been the donee of his mother's inheritance. Mrs. Tyler was the only member of the family who, independent of the testatrix, had a large property in her own right. She left her father's house the year he died, and returned home at a time when her mother bore the fatal marks of organic diseases which, within a twelvemonth, resulted in death. The daughter had been ARTFULNESS AND DECEPTION. 463 favored by circumstances gratifying to a mother's pride, and giving prestige to lier name. She was a lady of intelligence and culture ; her manners were engaging and attractive ; she wrote with facility and grace ; she was assiduous in her attentions to her mother, and soon brought her to feel, as she declared in one of her letters, a copy of which was preserved and produced by Mrs. Tyler on the hear- ing, not only that the society of her daughter was agreeable to her, but that she needed her " sympathy and assistance." This needful sympathy and assistance do not seem to have been withheld, and, from the time of the daughter's arrival, their views became more and more concurrent, until they entirely harmonized. The influ- ence of Mrs. Tyler soon became apparent in the family, and in all matters of importance it seems to have been uniformly effective and controlling. She had seasonably notified her brother, in advance, that she intended to return, and tiiat he must seek other quarters for himself, his wife, and his children. To the latter proposition he did not accede, and his answer, referring that question to his mother, in co-operation with other causes, seems to have produced toward him a feeling of unkindness on her part, in which, soon after she became an inmate of the house, her mother was brought to sympathize. It is true that, when the request to the latter to send David away was preferred, in the first instance by one of Mrs. Tyler's children, she promptly refused to comply, on the ground that he was her child ; but this objection was readily overcome, and she was soon afterward induced to yield to the request, and to despatch a letter to the son, in which this parental relation seems to have been entirely overlooked. Indeed, in the subseqiient letters, the existence of this involuntary family tie is alluded to in terms which indicate an impression on her part that it was matter of condescension to acknowledge it, even for the purpose of invidious comparison between him and her daughter. In the brief period which intervened between the return of the sister and the expulsion of tiie brother, the mother was brought into a state of singular and causeless alarm as to the condition and safety of her property ; and she was led, in the subsequent letters, of which Mrs. Tyler's memoranda were produced on the hearing, to overwhelm him with groundless imputations of malfeasance, deception, and fraud, in the performance of his duties as her gra- tuitous agent, and in the management of her perplexing and diver- sified business affairs. She was also, in some way, made to believe 454 UNDUE INFLUENCE AND FRAUD. that he had been guilty of " some fearful proceedings " to his sister, of which the servants in the family had been eye-witnesses. Her letter shows tliat the servants were not her informants, and it is obvious that tlie reproach was wholly unmerited, as there is not a shadow of foundation for it in the evidence. The proof leaves no room for doubt that tiiese later letters were ■written with the privity of the sister, if not transcribed from her so-called memoranda. The fact is undisputed tliat, during most of the brief period in which these false impressions were imbibed, the mother was a confined and suffering invalid ; that the son was engaged, as usual, in the management of her general business ; that she was in tlie closest intercourse, if not under tlie immediate influence, of Mrs. Tyler, who was most of the time in her room ; and that the latter was the only party interested in alienating the mother from the son, and the only party benefited by the testamen- tary changes which she introduced these letters to explain. That her influence over her mother was active and controlling is appar- ent, not only from the ultimate acquiescence of the latter in her views, which were contrary to those she had previously entertained, but, also, from the . significant circumstance that, though the son repeatedly called at the house of his mother, and continued to do so down to the month of May, he never found his way to her pres- ence ; that she then left home, and remained through the summer at a private boarding-house in New York, Mrs. Tyler visiting lier there almost daily ; and that, on her return to Castleton and the near approach of death, though the lawyer and doctor were promptly summoned, no message was sent to her only son. So far as we have the means of judging from these facts, from the memoranda produced by Mrs. Tyler, and from the singular pro- visions of the will, Mrs. Gardiner retained, to the hour of death, the false impression that David had deceived and defrauded her, and that he had been guilty of wrongs to his sister, too fearful to be spoken of either by him or the testatrix. That will was made on her death-bed, in the presence and by the procurement of her daughter, and in the absence of her son and her grandson. Her clergyman opportunely called on his dying parish- ioner. He was excluded by the testatrix, but the execution of the will was not suspended. She had never exchanged a word on the subject with the draftsman of the instrument until the day of her death. She referred him to Mrs. Tyler as the party from whom THE DICTATION OP PRINCIPAL BENEFICIARY. 455 he was to take his instructions ; and her inquiry on that subject shows that she did not know whether they were written or oral. She complied, however, as well as she could, with his request for personal instructions, and answered such inquiries as he felt it his dutj- to make. Mr. Clark had, in fact, been previously furnislied with full written instructions, sent to him the day before by Mrs. Tyler, with a note bearing date three days prior to the execution of the will. They were in the handwriting of the daughter, and were of a nature which could scarcely fail to excite the surprise of one who knew the testatrix, and the situation and relations of the family. He declined to comply with Mrs. Tyler's request that he should reduce them to form, without confirmation by personal instructions from the testatrix. Though his call was on the even- ing first named in Mrs. Tyler's note, as that on which she wished him to bring the will for execution, she intimated that the inter- view he proposed with her mother would be inconvenient at that time, and deferred it until the following morning. She alone was present when that interview occurred. The inquiries made by Mr. Clark were those suggested to his mind by her written instructions. He made an appointment for the execution of the will at five o'clock in the afternoon. Before noon Mrs. Tyler sent a messenger to his office to expedite the preparation of the instrument, and to have it brought in haste for execution. She provided the attesting wit- nesses, was present at the reading and signing, and rendered such assistance as the prostrate condition of her mother required. On the day when these occurrences transpired, Mrs. Gardiner was exhausted, vomiting, weak, signifying her wishes and assent some- times by words and sometimes by nods. The gentleman who drew the will conducted the matter with great propriety, and perhaps with more scrupulous caution than was entirely agreeable either to the mother or to the daughter. He seemed impressed with the idea that the provisions hp was directed to insert called for some explana- tion. He pushed his inquiries as far as he could witliout apparent incivility. In relation to the gift by the testatrix to her son of certain claims and advances, he ascertained that they rested on no written evidence, and that she could give him no specific informa- tion ; but the general result of his interviews with the motlier and daughter was to leave him under the mistaken impression that such claims really existed. The idea that Mrs. Gardiner had made advances toward the purchase of David's farm, seems never 456 UNDaE INFLUENCE AND FRAUD. to have been suggested in any quarter, until it appeared in Mrs. Tyler's instructions. The mother, of course, knew that she had never made any such advances; and it is difficult to resist the conclusion that she was made to believe that her son had bought the farm with money embezzled from her. The insertion of the provision, utterly groundless as it was, could serve no practical purpose, except to give to the will a seeming color of equality. Mr. Clark, also, very properly deemed it his duty to inquire as to the prospect of the restitution by the government to Mrs. Tyler, which was to be the condition of the enjoyment by David Gardiner of his inheritance. Neither of the ladies seemed able to furnish any information on this point. That the idea originated with Mrs. Tyler is shown, not only by the written instructions, but also by the direct and affirmative evidence of one of the subscribing wit- nesses. Mr. Clark felt bound also to inquire as to the grounds on which she expected to obtain further damages against the city of New York, in addition to those already awarded her, for opening certain streets. Having been her attorney and counsel in that matter, he, of course, recognized the absurdity of such a claim. She replied with a vague intimation that she had been assured by her friends that she could obtain such additional damages. Who these friends were does not appear otherwise than by inference. Her son had advised her that such a suit would be hopeless ; and the only person by wliom it seems to have been regarded with favor was Mrs. Tyler, who made it the staple of one of her instruc- tions, and certified the claim to be just. Slie probably so supposed, as she directed the insertion of the bequest in the will ; but in the light of the evidence it was valueless, except as evincing a recog- nition of the propriety of introducing one provision into the instru- ment, in which there should be some regard to apparent equality in distribution. The testatrix made the will under false impressions as to the relative circumstances of her son and daughter. She had enlarged on the poverty of the latter in conversation during the summer with the two ladies who were called by the respondent in support of tlie will. She talked to Mrs. Stryker in relation to Mrs. Tyler and " the destruction of her property.^^ She told Miss Cooper that " Julia was poor ; " and added, " Don't think tliat I don't care for David, but I must take care of Julia." Mrs. Tyler, in her instruc- tions, speaks of" the losses of property she has sustained," omitting, DECEPTION AND ARTFUL RESORTS. 457 of course, any reference to the property she had not lost, which she, perhaps, thought inappropriate in that connection, thougli it is alluded to in general terms in the will afterward prepared by Mr. Clark ; and Mr. Dayton, the tutor of her children, had pre- viously heard her talking to her mother about her losses. Mrs. Gardiner herself seemed to feel the necessity of some apology to Mr. Clark for the singular provisions of the instrument, and his attention was arrested by the circumstance that, at the first of the two death-bed interviews, notwithstanding her distress and dif- ficulty of articulation, " she talked for some moments about her daughter having lost her property, and her desire to provide for her, and that she trusted the others would acquiesce in it cheer- fully." The apology was inserted in the will, and is the only material provision in the instrument not traceable to Mrs. Tyler's written instructions. It is difficult to attribute to any other rational cause than Mrs. Gardiner's sense of the injustice of the will, her objection to its being read in the presence of her physi- cian, who. was to attest it; her injunction of secrecy when Mr. Clark told her that, though the precaution was not usual, he pre- ferred that the doctor should be present when he read it ; and her refusing to admit her clergyman, who happened to call as she was about to affix her signature. Mrs. Gardiner had, undoubtedly, testable capacity at the time the instrument was executed, but she was in a condition to be peculiarly exposed to the exercise of undue influence. Until she became an invalid, she was a lady of fair intelligence, unfamiliar with business, of an affectionate and yielding disposition, fond of attention and deference, and not unconscious of the consideration to which she was entitled in virtue of her property and position. She was more credulous than most of her sex, and repeated from time to time to her female friends spiritual communications which she supposed she had received at successive intervals from her deceased hus- band, son, and daughter. In the later years, of her life she was a severe sufierer from disease. When her daughter came home, in November, 1863, she was feeble and emaciated, and during the winter she was mostly confined, not only to her house, but to her room. The daugiiter was in the prime of life. The mother was infirm of purpose, sick, and old. She was soon imbued with false impres- sions, aud brought to a condition of nervous and causeless suspi- 458 UNDUE INFLUENCE AND FRAUD. cion and alarm. She expelled her son from her house, and nevet- saw him afterward. Her subsequent communications with liim were very few, very bitter, and all in writing. The letter of the 10th of February, directing him to leave, was, undoubtedly, com- posed by her, though corrected, if not prompted, by her daughter. It bears upon its face the evidence that she was not an easy and practised writer. The letter of the 9th of March, and those wliich followed it, are in a very different style. If they were designed for future use, as evidence furnished by her, of the truth of the groundless accusations with which they abound, they were well framed for such a purpose. If they were intended to repel all possible explanation, and to cut off even the hope of any future reconciliation, they were couched in terms appropriate to that end. If they were really composed by her, it is quite apparent that, in the month which intervened between her first and second letter, she had made unexampled progress in her literary acquire- ments, observable alike in her style, her punctuation, and her accuracy in the use of language. They are marked, however, by no diminution of bitterness, and no observance of the usual forms of courtesy, except that, when the daughter is referred to, she is spoken of in terms of almost extravagant encomium and deference. Whether the son was right in his conviction as to their authorship, to which he testified on the hearing, is only matter of inference from the production of the so-called memoranda, not shown to be in the handwriting of the mother, and from the omission of any denial by his sister, to whom he imputed the dictation of the letters. That the death-bed disposition by Mrs. Gardiner of her property was entirely opposed to her former deliberate purposes, and her convictions of equity and justice, before her faculties were im- paired by disease and infirmity, is indisputably established by the will of 1858. She was then fifty-nine years of age, and in perfect health. Her son had the same property at that time wliich he had at the date of the will of 1864, consisting of a farm mortgaged for the entire purchase-money, except the f5,000 paid from his earnings in Cali- fornia. Her property was the same iu 1858 as in 1864, except so far as its value had been augmented in the interval under his charge and through his continued services and supervision. Her grandson, Harry Beeckman, was at both dates an inmate of her CHANGE OP FORMER TESTAMENTARY INTENTIONS. 469 family, and nothing had occurred in the six years intervening to alienate the affection of the testatrix, or to add to his means or expectations. Mrs. Tyler, at the date of the first will, was dependent on such provision as her husband might make for her, in case she survived him. When the last was made, she had a considerable estate in her own right. By the original will, the testatrix gave the twelve acres on which she lived and the movables thereon to her son. Tlie place was subject to the Roosevelt mortgage, the payment of which was not charged on the residuary devisees, as it was in the subsequent will, when it was given to Mrs. Tyler. All the residue of her property she gave in equal shares to her son, her daughter, and her grandson. The contrast between the two instruments is striking. The first makes precisely such a disposition of her property as her cliildren would naturally expect, in view of- the sources from which it was derived, the services of the son, by whose care it had been pre- served and augmented, and the common claims of affection and of blood. If she ever had made any advances toward the purchase of David's farm, she knew it then ; for he had bought it five years before, and all that he paid toward the price was paid at that time. If she disapproved the mode in which he transacted her business, she knew it then, for he had transacted it through the preceding seven years in the same mode, which was continued to the year of her death. If he had then rendered services worthy of special recognition in her will, the force of the claim was not diminished by six more years of similar service without recompense. In view of all these circumstances, it is difficult to resist the conclusion that the death-bed will of 1864 was the result of the same controlling influence which led, a few months before, to the expulsion of the son from his mother's house. In the light of the surrounding and antecedent facts, the testamentary instrument carries with it its own condemnation. The precise case is presented, in which we are legally bound to compare the provisions of the two wills. Delafield v. Parish, 25 N. Y. 35 ; Marsh v. Tyrrell, 2 Haggard, 87, 110. In the first of these cases a leading and controlling ground of the decision was, the hostility of the provisions of a codicil, executed by a testator in 460 UNDUE INFLUENCE AND FRAUD. a condition of helplessness which exposed him to undue influence, to those of an antecedent will, made when he was in health, evinc- ing deliberation and care, and free from all suspicion. The case of Marsh v. Tyrrell, which this court has repeatedly had occasion to approve, was one where the husband was the principal bene- ficiary under a will made by his wife, under circumstances in many respects similar to those which concur in the case at bar. In pro- nouncing the judgment of the court, Sir John NicJioll said : " In inquiring, then, into the factum of the latter will, it becomes material to examine the probability of this great change of inten- tion, and it becomes the more necessary if, at the time of mailing the disposition, the capacity was, in any degree, weakened or doubtful ; still more, if the husband, in whose favor this great change is made, and who, from the relation in which he stands to the deceased, must almost necessarily have great influence and authority, should be the person originating and conducting the whole business of the new will. To examine, then, the probability of this change, it may be proper to consider the grounds and cir- cumstances of making the first will. If they were made upon hasty, capricious, temporary considerations, the departure from it becomes less improbable ; but, if made under motives long exist- ing, and quite naturally inducing it, the adherence to it will be the more strongly presumed, and the circumstances to account for the complete revolution in her intentions will be required to be more forcible." After reviewing the particular facts, he adds: "If, then, in addition to these circumstances, first, that the disposition in the new will is highly improbable ; next, that the husband had been endeavoring to get at her deeds and testamentary instru- ments ; and further, that she was in this state of doubtful capacity ; if, in addition to all this, we find that the husband, as far as the evidence goes, originates and conducts the whole business, rep- resenting, or rather misrepresenting, the previous facts, and, being present at all the material parts of the transaction, the case proceeds to the evidence of the factum under presumptions of fraud and imposition, which hardly any evidence would be suffi- cient to repel. It would, at least, be extremely difficult to show that she was a free, as well as a capable testatrix ; to show that she had a real, disposing testamentary mind, and an intention to abandon all the dispositions of her former will, made so carefully and adhered to so firmly. The strong presumption would be, that CHANGE OF FORMER TESTAMENTARY INTENTIONS. 461 in whatevei" slie said and did, however it might impose upon the witnesses, she was a mere instrument in the hands of her hus- band." In the leading case of Blewitt v. Blewitt, the issue was as to the execution of a will, made in feeble health, by a testator sixty-nine years of age, and under circumstances which exposed him to un- due influence, by a lady who had strong claims upon his justice as well as his bounty. That case, like this, presented unfavorable features peculiar to itself; but, among those common to both, were the weakness and exhaustion of the party ; the entire departure from previous testamentary dispositions ; the false impressions under which the will was made ; the active agency of the beneficiary in procuring it to be drawn ; her'presence at the testamentary act, and the absence of those who had, at least, equal claims upon the justice of the testator. The eminent jurist, by whom the opinion was delivered, after alluding to the force of the presumptions against the instrument from its hostility to previous testamentary provisions, proceeds to say, " It is difficult to conceive a case in which that presumption would exist with more force than in the present, looking to the former wills, to the condition of the de- ceased, to the parties in whose favor the codicil was to be made, being at the time about the deceased, and to the absence of other parties, to whose prejudice these alterations were to operate ; in such a case, the fullest proof of capacity equal not merely to some testamentary act, but to this important revocation of former dispositions, and to a new direction given to a large portion of his property, should be clearly established ; and, in this instance, the condition of the deceased, the possession of him by the parties to be benefited, and the false impressions made upon his mind, have also a strong appearance of fraudulent circumvention, requiring the case to be proved by the most satisfactory evidence. 4 Hag- gard, 463. The application of this recognized legal test to the present will, upon the state of facts disclosed by the evidence, raises a strong presumption of undue influence, which tlie proponent's proof wholly fails to repel. The original will undoubtedly expressed the intelli- gent and deliberate purposes of the testatrix. The disposition which it made of her property was obviously equitable, rational, and just. Its language is simple and direct. The reader is not left in doubt as to the purpose or the motives of the testatrix. It 462 UNDUE INFLUENCE AND FRAUD. contains no false suggestions, no substantial gifts to one, in the form of seeming gifts to another, no apology for its own provisions, and no admonition to filial acquiescence in parental injustice. It commits the charge of the grandson's estate, during ^;he period of nonage, to the son who had so faithfully and successfully managed her own, and it does not name a stranger as executor, to the exclusion of her own family. So far as the evidence shows, this instrument, executed in July, 1858, was in existence in May, 1864, and remained as an authentic and unrevoked expression of her deliberate will, until the very day of her death. The subsequent will bears upon its face the marks of indirec- tion, as well as of singular contrivance and forethought. It con- tains peculiar and unusual provisions. It locks up the property devised to the son, and commits the key to the custody of his younger sister, whose hostility was well known to the testatrix. It anticipates and provides for the unusual contingency of a pos- sible removal of either the sou or the daughter out of the United States ; and, to guard against any fraud upon the intent of the provision, it adds that such removal must be for a permanent residence. The gift- of the homestead to the daughter is simple and absolute. The gift of the residue of the estate, real and per- sonal, is trammelled with five " express conditions ; " and it will be seen that they were conditions which could not be complied with, except by such of the devisees as might be fortunate enough to have ample means for that purpose at their command. A novel penalty is imposed upon the son for supposed misconduct of the federal government, in respect to which no blame is imputed to him. The entire income of the share, of which he is the ostensible devisee, is given for life to his sister, to her own use and benefit, unless the damages which she is alleged to have sustained on her James River property and her Point Comfort property be reim- bursed by the federal government ; but the theory of reimbursement is not to be extended to her. She is, from that time, to receive his income no longer, but what she has theretofore received she is to retain in her own right. Reading the will in the light of the evidence, we find that, by the changes it effects in the testamentary dispositions, a large share of the inheritance, which would otherwise have gone to the grand- son, is transferred to the daughter, who is substituted as trustee in place of the son, and she is to receive his income during his DIPLOMATIC INDIRECTION IN THE WILL. 463 minority, and to apply so much of it as may be necessary to his maintenance, education, and support. The devise to the grandson is fettered with a limitation over to her and her brother, in case either of his death before he reaches the age of twenty-one, whether witli or without children, or of his death afterward, without chil- dren, whether he die married or unmarried. It is scarcely neces- sary to add, that there was no such provision in the original will, and that it had its origin in a special clause in Mrs. Tyler's written instructions. In the light of the evidence, it also becomes mani- fest that, of six principal clauses in the will, three have no practi- cal operation or appai-ent purpose, unless by way of palliation or apology for the provisions of the other tbree. It is due to the drafts- man to bear in mind that the limitation to the term of Mrs. Tyler's life, of the gift to her of the income of her brother, was a departure from her instructions, and was only assented to by the mother, on his suggestion that in the original form it would be illegal. A still more striking illustration of the diplomatic indirection, which marks the will, is found in the clause charging personally upon the residuary devisees the payment of all the debts of the testatrix. Even if we dismiss from our view the undisputed fact, that she held the bulk of the property by free gift from her chil- dren, it is not easy to believe that a mother, with an intelligent comprehension of the effect of such a provision, would personally charge her only son with the payment of three-eighths of her mortgages and other debts, amounting to nearly $50,000, knowing that his property consisted only of a small farm, mortgaged for the greater portion of the purchase-money ; that, by another provision of her will, he was cut off, in all human probability for life, from the income of his inheritance ; and that, by an additional clause, she had prohibited any partition or sale of tlie property devised, without his sister's consent, unless on tlie condition of his becom- ing a voluntary exile from his country. It is equally difficult to suppose that the effect of the provision was not comprehended by the writer of the instructions, who originally proposed to make it still more stringent by directing the payment of such debts, whether principal or interest, " as they fall due ;^^ a clause so unreasonable, under the circumstances, tliat the draftsman took the responsi- bility of omitting it in preparing the will for execution. The pay- ment, however, of three-eighths of these debts, is made an " express condition " of the ultimate benefit of the devise to the son, after 464 UNDUE INFLUENCE AND FRAUD. the death of the sister. So far as the proof enables us to judge, he was without the means to make such payment. The property nominally devised to him was so locked up, in pursuance of Mrs. Tyler's instructions, that he could not raise the amount, either by sale or by mortgage of his interest ; and the practical effect would be, in the ordinary course, a forced sale of the property, Mrs. Tyler being the only member of the family whose private fortune would enable her to become the purchaser ; and who, irrespective of this resource, was provided with ample means under the express provisions of the will. It is incredible that the mother could have had an intelligent and deliberate purpose to put her son so com- pletely in the power of a sister, who entertained unfriendly feelings toward him, and who was not merely succeeding to the principal portion of his birthright, but succeeding to it through a title de- rived from him by free gift. Such a purpose on the part of the mother would have been not only ungrateful, but unnatural. If it originated, however, with the daughter, there was much to palliate it. Her relations to her brother were not such as to lead her to appreciate its injustice ; she was under no special obligation to him ; and it was natural for her to feel that her own interests, and those of her children, were those in which she was most nearly concerned. She had the right to exercise the influence springing from family ties, services, affection, or gratitude, to the extent even of importunity, without subjecting herself to just censure or reproach. So, in regard to the orphan son of her dead sister, it was very natural for Mrs. Tyler to feel that she had a stronger claim to inherit his estate than his future wife, or his children born before he arrived at the age of twenty-one ; but it is impos- sible to believe that Mrs. Gardiner, in disposing, at her own death, of a property, for a large part of which she was indebted to the bounty of a deceased daughter, could seriously think it right to tie it up in the hands of that daughter's only son, to fetter his power of alienation, either by deed or by will, and to affix a limitation for the benefit of her own heirs, to the exclusion of his wife and children. If the last will is established, it must be by closing our eyes to the obvious legal effect of facts established by undisputed evidence, and falling back on the arbitrary maxim, sio volo, sic jubeo. This we cannot do without subverting settled rules of law, which we are bound to maintain and enforce. Another significant and controlling feature of the case, in view of WILL DICTATED BY BENEFICIARY. 465 the helpless and dying condition of Mrs. Gardiner, is the fact that the written instructions for the will were prepared by the principal beneficiary. The rule of law on this subject is well settled. It has been repeatedly announced by this court, and perhaps nowhere with more precision and directness than by tlie present chief judge, in pronouncing jadginent on the will of-Henry Parish. " The maxini, qui se scripsit hceredem" said the learned judge, " has imposed by law an additional burden on those claiming to establish a will, under circumstances which call for the application of that rule ; and the court, in such a case, justly requires proof of a more clear and satisfactory character. Such a condition is exhibited by the testimony in the present case. The two codicils under considera- tion were exclusively for tiie benefit of Mrs. Parish, with the ex- ception of the charitable gifts ; and although they were not actually written by her, yet they were drawn up at her suggestion, upon her procurement, and by counsel employed by her. She prepared and gave the instructions for them, and, in judgment of law, they must be regarded as written by herself. ' Facit per alium, faeit per se: " Delafield v. Parish, 25 N. Y. 35. In this case there is no proof or pretence that the instructions were either written or dictated by the testatrix. It appears, from the testimony of the draftsman, that Mrs. Gardiner expected them to proceed from Mrs. Tyler, and not from herself; and that she did not know, on the day the will was executed, whether such instructions were written or oral, though it is proved that they were written by the daughter two days before she transmitted them to the draftsman. The use in the instructions of the mother's name is not evidence that they were dictated by her ; and in the absence of such proof, upon the state of facts here shown, the legal presumption is that they were not so dictated, and that they were prepared by the party in whose handwriting they appear. Ingram v. Wyatt, 1 Haggard, 384, 439 ; Croft v. Day, 1 Cujteis, 853, 856 ; Baker v. Batt, id. 125. In the case first cited, it was objected that the rule was severe in its operation, as the party who wrote the instructions could not testify ; but the court said : " They are in the handwriting of Richard Wyatt, the father, a quarter as unfavorable, perhaps more so, as feeling a stronger interest than even Henry "Wyatt himself. It has been said that Richard Wyatt was incapacitated by the state of his faculties from giving evidence ; that he could not be examined ; that he 30 466 UNDUE INFLUENCE AND FRAUD. might have proved receiving these instructions from the deceased himself. Tliat is mere conjecture, whicli cannot compensate for proof. If the evidence is by accident defective, tlie misfortune, especially in such a case as tlie present, must fall upon tlie party upon whom the burden of proof lies." 1 Haggard, 439. In the present case, even this consideration cannot be urged. Mrs. Tyler was at liberty to testify, but chose not to be examined, and to leave the matter as it stood. Keeping in view, as we must, the dying condition of Mrs. Gardiner, at tiie time tlie transaction in question occurred, the force of the fact tliat the beneficiary wrote the instructions and originated the will is not necessarily overcome by the circumstance that they were afterward accepted by the testatrix, and that she assented to the will in which they we're embodied. The observa- tions, in one of the opinions delivered in tlie Parish Case, are specially pertinent to this point. " The whole evidence of the case," says the learned judge, " places him in a position, where an enfeebled intellect, though far from losing its intelligence and its capacity to do ordinary business, may well be presumed unequal to resisting reiterated importunities from one in her relative posi- tion. It would seem plain tliat she could have exercised an influence in regard to tliis codicil which would not leave iiim to the exercise of his own free-will. Are there anj- circumstances in this case to show that she did so ? Or, does it appear tliat, having the power, she gained a victory over her naturally excited feelings, and magnanimously forbore to use it ? Tlie whole burden of this codicil is for her benefit. Supposing that it was made under her control, se scripsit hceredem ; nor, upon this supposition, would Mr. Lord's presence, and the fact that Mr. Parish assented intelli- gently, and deliberately, and in detail, to the provisions of the instrument, relieve her from that position ; for the influence was easily exercised, when once its subject had been brought to submit to it, and in a way not at all suspicious, a way not likely to be observed by one who had no idea of its existence." 25 N. Y. 92. Thus Swinburne says, in commenting upon the effect of a tes- tator's assent under similar circumstances : " It is to be presumed that the testator did answer yea, rather to deliver himself from the importunity of the demandant, than upon devotion or intent to make his will, because it is for the most part painful and grievous to those that be in that extremity to speak or be demanded any ques- WILL, AT THE POINT OP DEATH, REVOKING FORMER ONE. 467 tion, and, therefore, are ready to answer (yea) to any question almost, that they may be quiet; wliich advantage crafty and covetous per- sons, knowing very well, are then most busy, and do labor with tooth and nail to procure the sick person to yield to their demands, when they perceive he cannot easily resist them, neitlier hath time to revoke the same afterwards, being then passing to anotlier world. And, therefore, worthily, and with great equity, is that to be deemed for no testament, when the sick person answereth yea, the interrogation being made by a suspected person, as well in respect of presumption of deceit in tlie one, as of defect of meaning of making a testament in the other. And tliis is true, especially wlien there is a former testament ; for that is not to be revoked by a second testa- ment, made at the interrogation of another in manner aforesaid." In a subsequent passage, he adds : " But what if a will be brought to the sick man, which, being read over in his hearing, and he demanded whether the same shall stand for his last will and testa- ment, answereth yea, and it doth not appear whetlier the same was written and prepared by the direction of the sick man, or else of bis kinsfolk and friends, whether it is to be presumed to have been prepared by his direction or by tlieirs ? It seemeth, by tlie sick man, in favor of the testament ; but when it appeareth, indeed, to have been made ready by otliers, then, albeit the testator, being interrogated, do answer as before, it is presumed that the question was made by tlie suggestion or onsetting of the executor, and so the testament is not good." Swinburne on Wills, pt. 2, § 25. These are the old landmarks of the law, and the judges should be the last to remove them. There is nothing in the present case to call for a departure from well-established rules, founded in plain princi- ples of justice, and essential to the protection of riglits and the prevention of fraud. They are tributary alike to the security of the living, the repose of the dying, and the harmony of the family relation. So far as the proof discloses, the first connection of the testatrix with this will was within eight hours of death. Its essential pro- visions are directly traceable to the written instructions, which were prepared three days before by the daughter, who thus secured to herself the bulk of the mother's estate. When the principal beneficiary under a will, prepared for ex- ecution by a party worn down by disease and close upon the verge of death, assumes the responsibility of initiating it, of prepar- ing formal instructions, of employing the draftsman, of selecting 468 UNDUE INFLUENCE AND FEAUD. the witnesses, of being present at every stage of the proceedings, and of excluding those to whose inheritance a new direction is given, it behooves such beneficiary to be provided with evidence that the instrument expresses the honest and spontaneous purposes of the person who is called upon, at such a time, to reverse the provisions of a previous testamentary disposition, made in health and strength, in favor of those having clear claims upon the justice and bounty of the testator. Delafield v. Parish, 25 N. Y. 35 ; Lee V. Dill, 11 Abb. 214 ; Lake v. Eanney, 33 Barb. 49 ; Bergen v. Udall, 31 Barb. 9, 25 ; Crispell v. Dubois, 4 Barb. 397 ; Marsh V. Tyrrell, 2 Haggard, 87, 110 ; Barry v. Butlin, 1 Curteis, 638. The studied privacy attending the preparation and execution of the will, the constant presence and vigilance of the principal beneficiary, and her omission to advise the son and the grandson of her mother's approach to death, are familiar and marked indicia of the exercise of undue influence, under circumstances like those developed by the evidence. Crispell v. Dubois, 4 Barb. 397; Delafield v. Parish, 25 N. Y. 41, 42. Swinburne, with his usual quaint and pithy directness, speaks thus of the inferences deducible from this species of evidence : " If the wife, being made executrix, or any other person benefited by the testament, understanding that the testator is about to alter his will, will not suffer his friends to come unto him, pretending, peradventure, that he is fast asleep, or in a slumber, or the physician gave in charge that none should come to him, or pretending some other excuse, or else, all excuses set apart, do, for charity's sake, shut them forth of the doors ; in these cases, the testament is void, in detestation of such odious shifts and practices." Swinburne on Wills, pt. 7, § 18. The will was made by the testatrix under two false impressions, which went to the very root of its provisions ; one, that her daugh- ter was poor, and the other, that her son was faitliless and dishonest, and that he had purchased his farm with her money. That these were the operative inducements, is assumed, on the part of the proponent, as well as the contestants. The influence of the first is apparent upon the face of the will, and is established by extrinsic evidence elicited from the witnesses called to sup- port it. The influence of the second is not only shown by the provisions of the will, but by the letters introduced by the daugh- ter to account for them. In view of the prostrate and dying condition of the mother, of the fact that the will originated in BURDEN OF PBOOF. 469 the instructions written by the daughter, and of the various indicia of fraud which surround the whole transaction, the case is within the principle settled by the successive decisions of the Chancellor, of the Supreme Court, and of this court in the case of Lansing v. RuSsell. It is to be regretted that the very able opinion delivered by Judge Marvin in this court is unreported, but it demonstrated, with irresistible clearness and force, the correctness of the rule settled in the courts below ; that, when the beneficiary is the active agent in procuring the execution, by one in extremis, of an instrument, disturbing dispositions previously settled, and where the transaction is surrounded by the usual indicia of undue influence, he is called upon to show that the inducements which confessedly led to the change were not unfounded and illusory. 3 Barb. Ch. 325, 340 ; 13 Barb. 510, 522, 526. In the present case, there not only is an absence of sucli evidence, but it is proved, affirmatively, that the impressions under wliich the ciiange was made were false. It is true that the burden of establishing imposition and undue influence rests, in the first instance, upon the party by whom it is alleged. Fraud is never to be presumed from the mere con- currence of temptation and opportunity, or from the mere fact that the chief actor is also the principal beneficiary. It must be estab- lished by affirmative evidence. It is thus establislied, however, wiien facts are proved from which it results as an unavoidable inference. When such evidence is furnished, the burden of repelling the presumption, to wliich it leads, is cast upon the party to whom the fraud is imputed. It is not to be supposed that fraud and undue influence are ordinarily susceptible of direct proof. Subscribing witnesses are called to attest tlie execution of wills, but not the antecedent agencies by whicli they are procured. The purposes to be served are such as court privacy ratiier tlian publicity. " In some cases," as this court said in the case of Sears v. Shafer, " undue influence will be inferred from the nature of the transaction alone ; in others, from the nature of the transaction, and tlie exercise of occasional or habitual influence." 2 Seld. 272. Tlie grounds for imputing it, as Sir John Nicholl said in tiie case of Marsh v. Tyrrell, " must be looked for rather in the conduct of the parties, and in the docu- ments, than in the oral evidence. The necessary inferences to be drawn from that conduct will affiard a solid and safe basis for the 470 UNDUE INFLUENCE AND FRAUD. judgment of the court. "Where the oral evidence harmonizes with those inferences, a moral conviction rightfully follows ; but the depositions, where they are at variance with the conduct of the parties, and with the res gesim, are less to be relied upon." 2 Hag- gard, 84. It was held, in this State, by the Court of Errors, that a circumstance indicative of undue influence was the fact, com- mon to that case, and to this, that the donor was brouglit, before the execution of the instrument, to a state of causeless alarm as to the condition of liis property, and of groundless suspicion against members of his own family. 3 Cow. 537, 672. So, in tlie Parish Will Case, it was said, in the course of the comments upon the circumstances, raising a presumption of undue influence by the principal beneiiciary : " Direct evidence of her control in tliese matters, of her actual exercise of undue influence in procuring her will to be executed by him, could hardly be expected. The means of keeping the influence out of sight were too many, and too easy of application. But, when such is the array of circumstances, when such a result is attained without any more substantial, apparent cause, we are justified in saying, from the evidence, that the only cause to be inferred, which is in the least degree adequate to produce the result, is a long-continued, persistent, overpowering influence, to which his condition rendered him peculiarly subject, and which she was as peculiarly in a position to exercise." 25 N. Y. 95. In the present case, all the controlling facts tend to one in- evitable conclusion. When the antecedent and surrounding cir- cumstances are grouped in their appropriate relations, they carry to the conscience and the understanding the clear conviction, that, when the mother afiixed her signature, she was executing the daughter's will. It is no sufficient answer to the presumption of undue influence, which results from the undisputed facts, that tlie testatrix was aware of the contents of the instrument, and assented to all its provisions. This was the precise purpose wliich the un- due influence was employed to accomplish. That consideration was urged in the case of Bridgman v. Green ; but Lord Chief Justice Wilmot very properly replied that it only tended to show more clearly the deep-rooted influence obtained over the testator. He added : " In cases of forgery, instructions under the hand of the person whose deed or will is supposed to be forged, to the same effect as the deed or the will, are very material ; but in cases of undue influence and imposition, they prove nothing, for DISCUSSION OP THE CASE IN NOTE. 471 the same power which produces one produces the other." Wilmot, 70. In the case of Hugueuin v. Baseley, Lord Eldon said : " The question is, not wliether she knew what she was doing, had done, or proposed to do, but how the intention was produced." 14 Vesey, 299. In a case somewhat analogous to the present, wliere the relations of the parties were reversed, and the execution of a deed was obtained by undue influence of the parent over the child, Judge Emott said : " If the mind of the donor was brought to a purpose, preconceived by the parent for his own sole advantage, by an influence wliich she could not escape in the circumstances in which she was placed, and which was deliberately used to effect such a purpose, then that influence, or its exercise, was undue and improper." 31 Barb. 25. We tlnnk the surrogate was right in rejecting the instrument propounded for probate ; and we have not arrived at this con- clusion, without giving to the questions raised by the respective parties that full and careful consideration which seemed due to their interest and importance. It is proper to add, that, if we had arrived at a different con- clusion, the judgment of the court below must still have been reversed. As that decision was founded upon a conclusion on a question of fact, adverse to that of the surrogate by whom the will was rejected, the Supreme Court had no authority to adjudge that the instrument be admitted to probate, but should, have coupled its order of reversal with a direction for a feigned issue, in accord- ance with the provisions of the statute. 2 R. S. 66, § 57 ; Alston v. Jones, 10 Paige, 100; Auburn Theological Seminary v. Calhoun, 25 N. Y. 428. That question, however, becomes unimportant, as we tiiink there was no error in the decree of the surrogate. An Appellate Court has no authority to direct a feigned issue, unless it arrives at a conclusion on the question of fact adverse to that of the original tribunal. The judgment of the Supreme Court should be reversed, and the decree of the surrogate rejecting the will should be affirmed. The foregoing case is one of very peculiar interest ; and the fact that one of the judges of the Court of Appeals delivered a dissenting opinion in terras of most indignant protest against the construction placed upon the testimony of the parties chiefly interested in the decision, by the majffrity of the court, will induce every one to examine it with more than ordinary care. We have long been satisfied, from a careful study of the reported cases upon 472 UNDUE INFLUENCE AND FRAUD. the subject of undue influence in the procurement of wills, that there are few so important topics in the law of wills, and where the ultimate principles are so little capable of clear statement and definition. There are, unquestionably, cer- tain external boundaries of the law upon the subject where there is no difficulty in reaching clear definitions. A will procured by fraud, as the will in this case was claimed to have been, is clearly invalid. But there are few cases where fraud is clearly provable, as in the present case will appear by the disagreement of the court. Here both the suppression of truth and the suggestion of falsehood, with- out going out of the will itself, was claimed to be proved, by comparing the pro- visions of the will with the oral testimony ; but the court could not see it alike. It would almost seem as if the principal beneficiary must hate been laboring under some hallucination to believe all the suggestions made in the will by her own express dictation : and still one of the judges held her absolutely innocent. We are not surprised that the majority of the court came to the conclusion they did upon the testimony, or that they regarded it a case of great hardship towards the disinherited son, who seemed to have been largely instrumental in making considerable additions to the estate of his mother, and who seems to have been dismissed from her service in the most abrupt and unceremonious manner, and finally cut off from all participation of benefit under her will, for no better reason, as seemed to the majority of the court, than that another member of the family had, justly or unjustly, superseded him in the confidence and affection of his mother. But when we find a judge of such learning, wisdom, and experience as Judge Peckham dissenting from all the results of the finding and constructions of the majority of the court, and coming to precisely opposite results upon the same testimony, we naturally feel surprised that causes are so satisfactorily determined by the courts as they are. Except in a very small minority of causes, tried in the highest tribunals of the States or of the nation, there is no important conflict in the opinions of the judges, especially in the construction of admitted facts. And when it does occur, it may generally be attributed to some special reason not affecting the majority of causes before the courts. We may safely say, then, that where an unjust will is produced by deception and fraud, it cannot be upheld. So, too, where such a will is the offspring of any influence brought to bear upon the testator in any manner, so as to overcome his free agency, it cannot be sanctioned by the law. It matters not whether the influence be force, or fear, or importunity, destroying peace of mind. It is often said in the cases that influence resulting from love, duty, and affection will not be regarded as unlawful. But we have never known a case where even this kind of influence was carried to the extent of producing an unjust will, more through the agency of the principal beneficiary than of the testator, that it could be up- held in a court of justice. Juries will not sustain unjust wills, unless they are the sole result of the perverse taste of the makers ; and it always seemed to us credit- able, both to their sagacity and independence, that they would not, and could not, be induced to believe in the fairness of an unjust will, where those most interested to produce it had, at the time of its execution, access to, and influence over, the testator. It behooves those, therefore, who desire to produce wills in their own behalf, to remember to be moderate in their desires, and not carry their influence beyond the safe limits of justice and decency ; for if they do, they may be sure an honest jury will be likely to find them out. TESTAMENTARY CAPACITY. 473 2. Daniel Y. Daniel, 39 Pennsylvania State Reports, 191. 1861. Testamentary capacity implies that the testator fully understands what he is doing, and how he is doing it; he must know his property, and how he wishes to dispose of it among those entitled to his bounty. It is not neces- sary he should collect all these in one review. If he understands, in detail, all he is about, and chooses, with understanding and reason, between one dis- position and another, it is sufficient. Where the testator is in a very depressed state of health, and proportionally weak and confused in his mind, and the will is induced by the action of the principal beneficiary, to the exclusion of others standing in the same relation, it will be regarded as the result of undue influence, unless there is satisfactory evidence to the contrary. Refinements in the form of questions and answers in jury trials illustrated and condemned by Woodward, J. There is no logal or intelligible difference between a witness saying the testator was "capable of understanding the will" or "making the will." No jury could be differently affected by the difference in the answers. The facts will sufficiently appear by the opinion of the court, delivered by — Woodward, J. The issue was devisavit vel nan. The paper purporting to be the last will of John Daniel, deceased, was as- sailed by the plaintiffs on two grounds : First, on the ground that he was so imbecile and idiotic as to be incapable of making a will ; and, secondly, that the will was procured from him through undue influence and imposition exercised by his brother, Charles Daniel, who is one of the executors and principal legatees. After a great deal of evidence was given on both sides, the court withdrew the second of the above questions from the consideration of the jury, by telling them that there was no evidence of undue influen'ce, and submitted the question of the testator's capacity in a charge which stated, with great fairness and clearness, the estab- lished legal distinctions upon the subject of testamentary compe- tency. Of the twenty-two errors assigned, the last two are the only ones that relate to the charge. These complain that the second and third points, on the part of the defendants, were not answered by the judg^ ; but, on looking through the general charge, we think it' was quite as favorable to the defendants on the subject of mental capacity as, under the evidence in the cause, they had a right to demand. And, moreover, their second 474 UNDUE INFLUENCE AND FRAUD. and third points were substantially affirmed in specific answers made thereto. The doctrine of these points was, that the imbe- cility which incapacitates for a testamentary act, must approach so near to actual idiocy as not only to lead ordinary observers to the belief that the individual is almost an idiot, but to show also that he is unable to understand the will he has made. The court responded that there may be imbecility of mind short of idiocy, which does not incapacitate a testator to make a will, and referred the jury to the standard of testamentary capacity explained in the general charge. In the charge, a disposing mind and memory was described to be " one in which the testator is shown to have had, at the making and execution of his will, a full and intelligent consciousness of the nature and effect of the act he was engaged in, — a knowledge of the property he possessed, — an understand- ing of the disposition he wished to make of it by the will, and of the persons and objects he desired to participate in his bounty. It is not necessary he should collect all t-hese in one review. If he understands in detail all he is about, and chooses, with under- standing and reason, between one disposition and another, it is sufficient." What fuller or more favorable answer had the defendants a right to expect ? Their proposition that testamentary capacity might accompany mental imbecility down to almost actual idiocy was afiirmed, and the jury was instructed to exact of the alleged tes- tator no more than an understanding of the testamentary act he was engaged in performing. When a man is spoken of as under- standing the will he is making, it is never meant that he compre- hends the possible legal effect which lawyers and judges may impute to the words he employs. The nicest and most difficult questions in law frequently arise upon the construction of wills. Testamentary capacity does not necessarily include an .ability to grapple with such questions. Nor did the learned judge suggest any such test. But he put the question to the jury, as defendants' counsel desired him to put it, as involving merely an understand- ing on the part of the testator of what he was about, and an intel- ligent choice between one disposition and another. And yet the defendants complain of this as error ! If the judge had required the jury to find capacity to understand wills in general, or to con- strue the legal effect of all tlie provisions in the instrument under consideration, there might have been reason to complain ; but, in COMMENTS ON THE TESTIMONY. 475 view of what was laid down by tho judge, the defendants had as good a chance for the verdict as the abstract rules of law could possibly afford them. The difficulties of their case, and their failure to get the verdict, did not spring out of the rules of law announced from the bench, but from the evidence in tlie cause. Besides the mass of evidence on the part of the plaintiffs which went to establish extreme im- becility, almost blank idiocy, against the testator, there were the two principal witnesses on the part of the defendants themselves. Dr. Wilson, the attending physican, and Ranch, the scrivener who drew tiie will, whose testimony was calculated to shake the confi- dence of the jury in the testator's competency. An imbecile who could not express tlie simplest ideas without misplacing his words, according to the testimony of witnesses who had known him all his life, was dying of consumption and typhoid fever. Three, or at most four, days before he died. Esquire Ranch was brought to his bedside in diaries' house, not by any request of the dying man, but by Charles himself. " I came into the room," says the witness, and "Charles Daniel went out again, I think to take his dinner. There was one lady in the room whom I don't know, but suppose it was Charles' wife. John Daniel was in bed. I went up to the bedside, and asked him what he wished me to do. His answer was : ' Der Charles wess,' — Charles knows, so I waited until Charles came in again. When he did so, he said to John : ' Now liere is the man whom I have brought to write your will,' Charles told him to tell me what he wanted, — something to that effect. Tlien he told me Charles and Ephe were to have share and share alike. Charles asked him, ' How much are Ephe and I to have, $2,000, $3,000, |i,000, |5,000, or $6,000 ? ' John said $B,000. I hesitated a moment, and looked at Charles. Charles then told me to put down $5,000." Without quoting more of this witness' testimony, this specimen is sufficient to show how little John Daniel had to do with making his will. He generally adopted the last sura suggested in Cliarles' peculiar interrogatories, though the scrivener put down the sum Charles dictated, as if he was making a will for him instead of John. The nomination of executors was doubtless accomplished in the same manner. That the jury should have failed to find testamentary compe- tency in a case which could hot be made to wear any better visage 476 UNDUE INFLUENCE AND FRAUD. than that, is not to be wondered at, and tliat the court might have dealt with the proofs in a much more damaging way than they did, is shown by what Swinburne wrote long ago (pt. 2, § 25) : " The third case of [incompetency] is when he that is at the point of death, and hardly able to speak so as he may be understood, doth not of his own accord make or declare his testament, but at the interroga- tion of some other, demanding of him whether he make this or that person his executor, and whether lie give such a thing to such a person, answereth yea, or I do so. In which case it is a question of sonie difficulty whether the testament be good or not, neither can it be answered simply either negatively or affirmatively, but diversely in divers respects. For if he which doth ask the question of the testator be a suspected person, or be importunate to have the testator speak, or make request to his own commodity, as if he say, Do you make me your executor ? or. Do you give this or that ? and thereupon tlie testator answer yea, — in this case it is to be presumed that the testator did answer yea, rather to deliver himself of the importunity of the demandant than upon intent to make his will, because it is for the most part painful to those tiiat be in that extremity to speak or be demanded any question, and therefore tliey are ready to answer yea to any question almost, that they may be quiet. Which advantage crafty and covetous persons, knowing very well, are then most busy, and do labor with tooth and nail to procure the sick person to yield to their demands when they perceive he cannot easily resist them, neither hatli time to revoke tlie same after- wards, being then passing to another world. And, therefore, worthily and with great equity and reason, is that to be deemed for no testa- ment when the sick person answereth yea, the interrogation being made by a suspected person, as well in respect of presumption of deceit in the one as of defect of making a testament in the other." And to illustrate these observations, an old case in the time of Henry VIII. is referred to, where a monk came to a gentleman then in extremis to make his will. The monk asked the gentle- man if he would give such a manor to his monastery. The gentle- man answered yea. Tlien if he would give such and such estates to such and such pious uses. The gentleman answered yea to them all. The lieir-at-law, observing the covetousness of the monk, and that all the estate would be given away, asked the testator if the monk was not a very knave, who answered yea. Afterward, for the reasons above said, it was adjudged no will. Swinb. on Wills (fol. ed.), p. 112. THE FOKM OP QUESTIONS. 477 Now, it would not be right to treat Charles as a " suspected person," nor to set up any presumption of deceit to his prejudice, after the effectual manner in ■which the court put the second ques- tion touching undue influence out of the cause ; but this venerable authority shows us how to apply the essential facts of the case to the question of the testator's competency. If the will was pro- cured by the interposition and dictation of Charles, that fact con- nects itself with the congenital imbecility and dying condition of the testator, and goes strongly to condemn the paper. But more than this. Such a result, drawn from the essential facts of the case, shows how very unimportant are many of the technical ques- tions of evidence raised by the bills of exception. If we were to say the court erred in every of the twenty instances alleged, — that they should have admitted what they are complained of for exclud- ing, and should have excluded what they are complained of for admitting, — we do not see that a different result could have been looked for, so decisive against the competency of the testator are the main, uncontradicted, and unquestioned proofs in the cause. But let us pass rapidly through the bills of exception, and see what they contain. The first seven errors assigned relate to Mr. Wright's testimony. It seems that Mr. Wright had been counsel for the testator, — not employed by him, but by his brother Samuel to act for him, — who frequently came to his office, but always in company with others. Mr. Wright says he never had any conver- sation with John in his life, nor could have any worth repeating. It was then proposed to ask why he could have no conversation with him, and the question was admitted under exception. Tlie idea of counsel seems to be that the professional relation forbade the answer to this question. Communications made to counsel are privileged ; but if a client is too imbecile to make any communications, I never before heard that fact was incompetent testimony on account of the professional relation. No more than the shape of the client's head, which is the subject of the next bill. If a lawyer learns from professional visits that he has a fool for a client, whether he acquires the knowledge by the want of intelli- gent answers, or by study of phrenological developments, the fact is competent evidence in a proper case, and no rule of law forbids the lawyer from delivering it. Some inquiries were pressed on this witness in regard to the declarations of Charles Daniel, which, if they had drawn out ad- 478 UNDUE INFLUENCE AND FRAUD. missions of the testator's incompetency, would have rendered the rulings of tlie court mischievous. For it has been often decided that the admissions of one of several defendants, in an issue of devisavit vel non, cannot be given against the others. But it is to be remembered that the issue as to undue influence was cast out of the cause, and therefore no erroneous rulings of evidence that was intended to bear on that point are of the least consequence. And as to mental competency, which was the only point decided, Mr. Wright detailed no admissions or declarations of Charles. All that was proved or offered to be proved about the petition to rescind a certain petition was utterly irrelevant to the ouly issue that was decided. And the same remark is applicable to the evidence referred to in tlie eighth and ninth assignments. Whilst it might possibly have had some pertinency to the issue about undue influence, it was irrelevant to that about testamentary capacity, and therefore harmless. The defendants got the benefit of their objections to this evidence by inducing the court to exclude from the considera- tion of the jury the only topic to which it could apply. Their argument that it was irrelevant as to the remaining topic is sound enough, but no reason for reversing the judgment ; for the ready answer to such an argument is, that as the evidence touched not that topic, it did you no injury. To show a fully drawn will to a physician, and to ask him whetiier his patient had mental capacity to understand it, is an unusuel mode of examining a doctor. Whether the court erred in excluding it, is not necessary to be decided, lor Dr. Wilson had declared, before the question was addressed to him, that he had no idea of what intellect was required to make a will. Of course he could not have answered the question had the court allowed it to be pressed. The next assignment complains that the court would not allow Paul Schlegel to be asked wUetlier the testator had capacity " to understand a will." Tlie witness was allowed to answer, and did answer, that he was " fit to make a will." We think that through- out this cause there was too much refinement of distinctions in raising and ruling questions of evidence on the part both of counsel and of court ; and here is a remarkable instance of excessive nicety. What is the distinction between that mental condition which is competent to understand a will and that which is fit to make a REFINEMENTS, ON FORM OP QUESTIONS, VICIOUS. 479 will ? If a microscopic vision could detect a distinction, who has scales nice enough to tell how much it would weigh in the jury box ? The plaintiffs in error undertake to convince us that their cause was damaged by the witness testifying tliat the testator was fit to make a will, instead of testifying that he was competent to understand a will. We do not think the error, if error there was, did them any damage. We do not suppose the jury would have been swayed a hair's-breadth by one form of answer more than by the other. And the bill sealed on part of William Lee's testimony was another instance of excessive refinement. The defendants were not permitted to ask the witness if the testator had mind enough " to know what he was doing in bequeatliing his property ; " but the witness was permitted to testify that " he was fit to bequeath his things to Charles and Ephraim, because he said that Robert and Joseph would not get much." Again we ask, what is the difference between the testimony offered and the testimony de- livered ? And was it a damaging difference ? We think it was not. The thirteenth assignment of error is, tliat defendants were not permitted to ask Edward Kiechel whether testator was competent to make a plain, ordinary will. I confess I do not see why the question was excluded ; but the witness gave a very good reason why we should not reverse for this error, when he said : " My opinion is, he was not fit to make a will giving away his property." As they would not have got the answer tliey sought, the defendants were unharmed by the loss of their question. The particular answer excluded from Dewalt's testimony did not materially impair tiie effect of his evidence ; and is quite too inconsiderable a point to rest a judgment of reversal upon. The rest of the assignments relate to a side issue on the char- acter of one Nathan Lerch, who was not a party to the record, nor, so far as we are shown, a witness in the case to any thing more than a matter of opinion. We will not be betrayed into a con- sideration of any of the rulings in that side issue. Having thus gone over all the assignments of error, we find nothing in them to require a reversal of the judgment, and it is accordingly affirmed. 480 UNDUE INFLUENCE AND FRAUD. 3. Harvey v. Sullens, 46 Missouri Reports, 147. 1870. Where the testatrix was in extremis, and so sick and worn out as to become a mere passive instrument in the hands of others, and the will was drawn up by one in confidential relations with the testatrix, and gives five-sixths of the estate to this person, who was a stranger in blood and affinity, the remainder only being distributed among the relations of the testatrix, who were poor, and towards whom she entertained friendly feelings, it must be considered that the will was obtained by undue influence, and therefore cannot be sustained. Where the party procuring the will must he regarded as consciously obtaining an unjust will, either for himself or others, and that the result was obtained through the agency of other minds than that of the testatrix, it cannot be supported. In all cases where the party writing or procuring the will derives an unequal advantage under it, the court should scrutinize the evidence carefully, and not sustain the will until all grounds of suspecting improper influence are removed, and it clearly appears that the will was the act of a free and capable person. Where the will is unjust towards the relatives of the testatrix, and would not have been executed but for the influence of the party principally benefited by it, the jury may properly be charged that it cannot be supported. So, too, it is proper to charge the jury in such a case that, if the testatrix was coerced to sign the will by force, fraud, or deceit practised by the principal beneficiary, it cannot be maintained. The opinion of the court was delivered by — Wagner, J. This case is brought here by appeal to review a judgment of reversal rendered in the general term of the St. Louis Circuit Court. The proceeding was commenced under the statute to set aside the will of Elizabeth Sip, which was admitted to pro- bate in St. Louis County on the first day of December, 1864. The will bears date the twenty-fourth day of November, 1864, and devises to Sullens all the real estate of which tlie testatrix died seised, and bequeaths to five grandchildren and one great-grand- child small bequests, $100 to each of her granddaughters, and $100 and her clothes to her sister, Mrs. Maria Longworth, for " her kindness to the testatrix in her last sickness," and also a bed to a girl of the name of Prichett, who was a servant in the house of the testatrix, and $50 each to her grandsons, and |50 to her great-grandson. Sullens, the devisee, wrote the will, is made executor, and gets about five-sixths of the whole estate. STATEMENT OP THE PACTS. 481 Upon the trial in the court below, certain issues were framed and submitted to the jury, who foilnd in favor of the will, and judgment was rendered accordingly, which was reversed in general term. Tlie material question raised is the action of the court on the trial in refusing certain instructions asked by the plaintiffs. Tlie petition proceeds upon two grounds : first, that the testatrix was not of sound mind when the will was executed ; and, sec- ond, that the defendant SuUens procured it by fraud and undue influence. Without undertaking to go into any minute detail of the evi- dence, the substantial facts appear to be these : The testatrix, Mrs. Sip, was au old lady about seventy-three years of age ; kept house and resided on her farm. Tlie witnesses all agree that, though uneducated, she possessed a strong mind, and had good business capacity, but in the latter part of her life she became quite childish and irritable. Her immediate relations, grandchildren and great- grandchildren, and three sisters, were all poor, and there does not seem to have existed any particular enmity or unfriendliness between them. Sullens, the principal devisee and executor, was an entire stranger in blood to the testatrix, was her near neighbor, was on terms of the utmost intimacy with her, belonged to the same church, and occasionally took her to meeting in his wagon. That he had acquired her complete confidence is conclusively shown. Tiie testatrix had made two wills, several years previous to tiie one now in controversy, and it seems that Sullens wrote them both ; but what disposition she made of her property does not appear. In her last illness, when in fact she was in extremis, all hopes of recovery having vanished, Sullens, who was always attentive, is found at her bedside, conversing with her in so low a tone of voice that her sister, Mrs. iLongworth, although but a few feet distant, could not understand any thing that was said. A memo- randum was then taken, and in the evening Sullens came back with the will, written by himself. On his way to the house of tlie testatrix, he met a man by the name of Green, almost a stranger, and requested him to return and witness the will. Dr. Williams, a brother-in-law of Sullens, was already in the house. SuUens then asked all the household, and those in attendance, including Mrs. Longworth, the sister, to retire from the room, which they did, leaving liim, the testatrix, and Dr. Williams, alone in the 31 482 UNDUE INFLUENCE AND FRAUD. room. It then appears the will was read to her, after which Green was beckoned by Sullens to come in, when, with the assistance of Williams, she made her mark, and acknowledged in the presence of those three that it was her last will, and expired in three or four days thereafter. At the time of the execution of the will, Sullens enjoined secrecy on the witnesses, and requested them to say nothing about it during the life of the testatrix, if she died in her then present illness. An analogous question to the one here presented was discussed with some fulness by this court at the last October term, in the case of Garvin's Administrator v. Williams et al., 44 Mo. 465. It was there attempted to be shown with what distrust and suspicion the law looks upon all transactions where persons occupying a special or confidential relation seek to obtain an advantage inconsistent with tlieir position. The general principles therein laid down need not be here reiterated, and we shall therefore confine this exami- nation to a more exact review of tlie question raised and directly involved. // It is within the experience and obsei'vation of every one that old persons in extremis may be easily imposed upon by those in wliom tliey confide. Where, therefore, a party standing in this relation to such a testator prepares a will in his own favor, it cannot but excite suspicion, and create in the minds of those who are called upon to pronounce on it, a desire to have other evidence than proof of the execution of the instrument and the testable capacity of the deceased. Where a person is so sick, worn out, and enfeebled that he is a mere passive instrument in the hands of those who produce the will, or where he allows others to control and dispose of his estate in order to escape their offensive dictation and annoyances, it is evident such a will ought not to be permitted to stand ; and if the person in whose favor or through whose influ- ence the will is made, eitlier for his own benefit or that of others, is conscious, as an ordinary person will be presumed to be con- scious, that an unjust result was being obtained in having the will made as it was, and such result is attained through the agency of other minds than that of the testator, the will cannot be main- tained. See Gilreath v. Gilreath, 4 Jones' Eq. 142 ; Dean v. Negley, 41 Penn. St. 312 ; Floyd v. Floyd, 3 Strob. 44 ; Wood- ward V. James, id. 552 ; Means v. Means, 5 Strob. 167. y In Barry v. Butlin, 1 Curteis' Ecc. 637, Baron Farke, in deliver- EFFECT OP CONFIDENTIAL RELATIONS. 483 ing the opinion of the court, says : " The rules of law, according to which cases of this nature are to be decided, are two : the first, that the onus probandi lies in every case upon the party propound- ing a will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. The second is, that if a party writes or prepares a will, under which he takes a benefit, that is a circumstance which ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favor of which it ought not to pronounce unless the .suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased." In the case of Sears v. Shafer, 2 Seld. 268, the rule is thus stated : " A court of equity interposes its benign jurisdiction to set aside instruments executed between persons standing in the rela- tion of parent and child, guardian and ward, physician and patient, solicitor and client, and in various other relations, in which one party is so situated as to exercise a controlling influence over the will and conduct and interests of another. In some cases undue influence will be inferred from the nature of the transaction alone ; in others, from the nature of the transaction and the exercise of occasional or habitual influence." It is certain that, in a case like the present one, the law regards the transaction with great suspicion. The clearest evidence is required that there was no fraud, influence, or mistake. The pre- sumption is against the propriety of the transaction, and the onus of establishing the devise to have been voluntary and well under- stood, rests upon the party claiming ; and this in addition to the evidence to be derived from the execution of the will conveying or devising the property. From the very nature of the transaction, undue influence is presumed, and the absence of it must be shown by the party sustaining the devise ; but the presumption is one of fact, and not of law, and may be rebutted by proper evidence. X , The gross inequality exhibited by the testatrix in almost totally disinheriting those who had strong claims upon her bounty, and willing nearly all her property to an entire stranger in blood, is suggestive of unfairness, and requires satisfactory explanation. That she. had the power to so dispose of her estate is undoubted, but its unreasonableness requires the clearest evidence that it was the deliberate offspring of her own unbiassed mind, and flowed from a free and uninfluenced volition. 484 UNDUE INFLUENCE AND FRAUD. We will now briefly advert to the instructions which the court refused to give, and which refusal is assigned as error. Tlie first and second, in the shape in which they were drawn, were, I think, well enough refused. The third asked the court to charge the jury that, if they believed from the evidence in the cause that Isaac SuUens was the principal devisee named in the paper writing pro- pounded as the last will and t-estament of Elizabeth Sip, deceased, and that said Sullens wrote tlie same himself, and procured a kins- man of his to witness the same, and caused the relatives and friends of the deceased to leave the room while he and his said kinsman read, or pretended to read, the sE^me to the said Elizabeth Sip, such facts and conduct on the part of the said Sullens were evidence of fraud and undue influence on the part of Sullens in procuring the said Elizabeth to make the paper writing as her will. Perhaps the instruction is rather too broadly stated in declaring absolutely that the acts enumerated are evidence of fraud and undue influence, though I think they were proper to be considered by the jury, and from which they might deduce or infer undue influence or fraud, and with this modification it ought to be given. The fourth request or charge asked was to the effect tliat if the jury believed from the evidence that Elizabeth Sip, deceased, was, at the time of putting her mark to the paper writing propounded by the defendant Sullens, old and infirm in body, and feeble and childish in mind, and so incajiable of transacting her ordinary business, then she had not sufficient capacity to make a will. In all cases, as an abstract proposition of law, this instruction would not be quite accurate. Great contrariety exists in the adjudication as to what is necessary or sufficient to constitute testable capacity. In England, in all cases where the person is regarded as a fit subject of a commission of lunacy, he is prima facie incompetent to execute a will ; and Lord Eldon, in Sher- wood V. Sanderson, 19 Ves. 280, thus states the rule : " It must appear that the object of the commission is of unsound mind and incapable of managing his affairs." And in cases in this country, it was said that if one be able to transact the ordinary affairs of life, he may, of course, execute a valid will. Tomkins v. Tomkins, 1 Bailey, 92 ; Coleman v. Robertson, 17 Ala. 84. But this crite- rion cannot be regarded as a test in every particular case. How- ever, I am inclined to the opinion that, under the circumstances here presented, the instruction was correct, and should have been COMMENTS ON THE CHARGE. 485 given. The fifth instruction told the jury that if they believed, from the evidence in the cause, that the defendant Sullens was the principal devisee in the paper propounded by him as the last will and testament of Elizabeth Sip ; that he wrote it himself; requested the subscribing witnesses to subscribe their names to it as witnesses, and further requested one of said subscribing wit- nesses, who was the only witness that knew any thing about the contents of said paper, to keep it a secret until after the death of Mrs. Sip, — then they were warranted in considering such evidence as tending to prove that Sullens procured the said Sip, by fraud and undue influence, to sign her mark to the said paper. The. instruction is unexceptionable, and its merits have been sufliciently discussed in a prior part of this opinion. The sixth instruction asked told the jury that undue influence was alone sufficient, if proved to their satisfaction, to impeach an^ set aside a will under it ; and that, as a matter of law, if they were satisfied from the evidence, when taken as a whole, that the paper pro- pounded by Sullens would not have been made by the said Sip and signed with her mark as her last will and testament, but for the influence exercised over her mind and will by Sullens, then they should find that it was procured from the said Sip by undue influence, and that tlie same was not her last will. The seventh instruction told tiie jury that if they found from the evidence in the cause that the testatrix Sip signed the paper writing pro- pounded as her last will and testament, and that she was coerced to do so by force, fraud, or deceit practised upon her by Sullens, and another or others in his interest and acting at his request, then tiie paper writing was not the last will and testament of the deceased Sip. We see no valid objection to either of the foregoing instructions, and tliink they should have been given. For the error in refusing the instructions, we are of the opinion that the judgment of the general term was correct, and it will therefore be affirmed, and the cause remanded for a new trial in conformity with this opinion. The other judges concur. 486 UNDUE INFLUENCE AND FRAUD. V. The Declarations of the Testator for many Years, and UP TO THE Time op making a Will, in Conflict therewith, admissible to prove testamentary intentions, and for the Purpose of comparing such Intentions with the Actual Provisions of the Will. 1. Neel V. Potter, 40 Pennsylvania State Reports, 483. 1861. The declarations of the testator for many years before and up to the time of making his will, of testamentary intentions wholly inconsistent with the actual provisions of his will, in connection with other proof of the exercise of undue influence by the beneficiaries under the will in its procurement, is admissible upon the issue whether the will was so obtained. The opinion of the court was delivered by — Thompson, J. This was a feigned issue to try the validity of au instrument purporting to be the last will of John Neel, deceased. It was contested by the heirs. The plaintiffs, the Neels, were the devisees. It was assailed on two grounds. First, for want of mental capacity in John Neel to make a will; secondly, on ac- count of alleged undue influence by members of the family of the devisees. The testimony received and excepted to was of declarations of the testator, running back to a period of nearly tliirty years and up to within a much later period, that he intended to " leave his farm in the name of Neel," and similar expressions, to witnesses, at different and distant intervals. The reception of the evidence constitutes the first bill of exception, and is the only assignment of error in the case. We are of opinion that it was clearly competent, certainly on the point of undue influence. It would strongly rebut the idea of any such influence on the mind of the testator when making his will, if it were shown that he made it in accordance with a long-cherished purpose, and especially when in the execution of that purpose he was keeping it, not only in the name but amongst his own blood- relations. This was the purpose of tha evidence, and it is sustain- able on express and clear authority. Starret v. Douglass, 2 Yeates, 46 ; Irish v. Smith, 8 S. & R. 573 ; 2 Greenl. Ev., note 4 to § 689 ; ADMISSIBILITY OP DECLARATIONS OP TESTATOR. 487 Stevens v. Yancleve, 4 W. C. 0. R. 266. The authority, 1 Grant, 51, does not conflict with these views. Whether the testimony would have been competent if the question had been mental inca- pacity alone, it is not now necessary to determine. It was proper for the purpose mentioned, and the judgment is affirmed. The declarations of the testator may be received upon the trial of the validity of the will, for two very distinct objects : (1) To show the state of his mind at or about the time of the testamentary aot. In this case, the nearer the declara- tions come in time to the date of the will, the more weight they will, ordinarily, be entitled to. But there are some exceptions to this rule, as where loss of mind has been of long standing, where declarations of the testator, extending over a long period, may be important to be considered. But commonly, where the tes- tator's declarations are received, in order to establish his state of mind at the date of the will, it will not be important to extend the inquiry over any long period, either before or after the execution of the will. And the decided cases have so held. Dickinson v. Barber, 9 Mass. 225; Grant v. Thompson, 4 Conn. 203. But (2) where the declarations are offered for the purpose of showing previous testamentary intentions in conflict with the actual provisions of the will, a much wider range is allowed, especially before the time of making the will. Indeed, declarations of former testamentary intentions would scarcely be expected after the execution of the will, unless made in reply to some inquiry upon that point, and in that view, or most others, could not commonly be of much account. But those made before the date of the will becom'e the more important the longer they have continued, and often are received extending back many years. Deni- son's Appeal, 29 Conn. 399 ; Converse v. Wales, 4 Allen, 512 ; Wooton v. Redd, 12 Grattan, 196, post, part iii. chap. 3, sect. 2. 2. Boi/lan Y. Meeker, 4 Butcher's New Jersey Reports, 274, 276-303. 1860. This is an important case, and one which tlie judges seem to have esteemed of very considerable difficulty, since three of them deliver separate opinions, covering over two hundred pages in all. Mucli of this is occupied in an extended discussion of the testimony in detail. We shall content ourselves with giving the opinion of one judge, and that one entering less into the discussion of the testimony than the otiier two, especially the portion here given ; witli some dicta of another judge. One who has capacity to make any will, has the legal right to make an unequal, unjust, or unreasonable one, and it should not be pronounced against on these grounds, alone. Whelpley, J. The will may, upon its face, carry clear evidence of being the offspring of an unsound mind. Whelpley, J. 488 UNDUE INFLUENCE AND FRAUD, Declarations of the testator may be received upon the issue of want of testamen- tary capacity. Whelpley, J. But neither the testator's omission to speak of the will, nor his declarations tend- ing to show that he was, in fact, ignorant of its existence, are competent to show that fact in answer to positive proof that he executed it. Nor may such declarations be received to prove that the will was a forgery, or that it was obtained by fraud, in inducing the testator to execute the will, supposing it to be some other paper. The declarations of a deceased witness to a will, tending to impeach the will or himself as a witness, cannot be admitted in favor of the contestants. The facts sufBciently appear in the opinion of the court by — Van Dyke, J. This is an action of ejectment brought by some of the heir's-at-law of Jonathan M. Meeker, deceased, against per- sons claiming the premises in dispute, by virtue of a will of said deceased, dated January 12, 1852 ; and although the evidence taken is very voluminous, the great question in the case is, did the deceased execute the will in question, knowing at the time what he was doing? If he did, it must end this controversy. The defend- ants affirm that he did, and the plaintiffis deny it. The matter in controversy, as presented here, involves grave questions of law as well as of fact. These in order, or so many of them as T deem important to a decision of this case, I will pro- ceed to examine. The first exception taken at the trial was to the verbal declara- tions of the deceased, offered not to show an insane or unsound mind on his part, but showing a sound one, and made at various times through a course of years, and to divers persons, to prove that it had long been his intention to make a different will, in some respects, from the one in question, and consequently that he' could never have executed this one. Tliere were other of his declara- tions offered going to different points, but all offered to show that it was very unlikely and improbable that he ever signed this will. The declarations were often isolated, far apart, and formed no part of what could be termed the res gestce. It was very proper for the plaintiffs to show, if they could, that it was unlikely and improbable that the deceased should have signed such a will ; but could they do it by such declarations ? Can a will, duly and sol- emnly made and abundantly proved, be overthrown by proof of sucli declarations ? Can every party who, in good faith or in bad faith, sees fit to make the charge of fraud or forgery against a will, DECLARATIONS AFTER EXECUTION OF WILL NOT ADMISSIBLE. 489 surrounded, it may be, with all tlie form and substance and sanctity known to the law, be permitted to assail it, and destroy it by call- ing witnesses, either few or many, to show that, according to the declarations of the testator, it had been his intention to make a very different disposition of his property, and to leave a legacy to some one which is not found in the will ? What will could be safe under such a rule ? For if the evidence can be received at all, it is because it is of a character and kind which may be allowed to prevail over a will, no matter how well it is proved. If a jury may hear it they may believe it, and act upon it, and give it preference over every thing else ; and all a party has to do who dislikes a will, and which may in fact be unpopular because it disappoints a whole community, is to raise the charge of fraud or forgery against it, call the dissatis- fied community as witnesses to prove the promises made them by the testator in his lifetime, and which were quite different from the provisions of the will, accumulate such declarations of a talkative testator until tlie jury shall think tliey ought to prevail over the witnesses ,who saw the will executed, and the best prepared and best executed will in the world is a perfect nullity. One thing more may perhaps be necessary, and that is to ask the court to declare and determine tliat it is the exclusive province of the jury to pass upon the facts in the case, and they having done so, the court cannot interfere with their verdict. Nor does the rule derive any aid from the large number of witnesses that have testified on that subject in the present case, for if a jury can lawfully be gov .erned by the testimony of a hundred witnesses, they may also be by that of fifty, by that of ten, or five, or one. There is no fact that can be established by a hundred witnesses that cannot be lawfully established by one witness, unless it may be some special exception requiring more. It is easy to see with what danger this rule is accompanied. A man makes his will according to all the forms of law ; both the subscribing witnesses have died, and no direct proof can be brought to bear on the fact of the execution. The testator, being unable to write, has made his cross. Some heir-at-law raises the charge of fraud or forgery against the will. No one knows any thing about the affair, and to prove the signatures ol' the subscribing witnesses is all that remains to be done. This is accomplished quite satis- factorily, but the jury hesitates in face of so grave a charge, and 490 UNDUE INFLUENCE AND FRAUD. then the opponent of the will finds one, two, three, or a dozen per- sons, who testify that they heard the testator say, at different times, that he did not like the principal legatee, or that he intended to give some portion of his estate to some one else ; and as no such legacy or devise appears in the will, and as such evidence is per- fectly lawful and seems overwhelming, and as the jury are told by the judge that they are at liberty to believe it and act upon it, they hesitate no longer. The weigiit of the testimony seems to them to be against the will, and they determine to annul it. The court, on review, holds the evidence to have been competent, and as the jury have passed upon it, their verdict does not seem to be so much against the weight of evidence as to justify an interference. Here the will is destroyed simply by the admission of declarations of the testator, which may have all been correctly detailed, and yet the will be perfectly good and have been duly executed by the testator, and the same result might be effected in any and every case by the same means, even when all the witnesses were living and testified to tlie due execution of the will. There seems, in fact, to be no end to the mischief that might be done by the establishment of such a rule. And besides, what is the effect of the rule contended for but to permit a testator to make or unmake a will by his mere verbal declarations ; or, what is worse, is it not to permit a devisee or heir-at-law to make or unmake a will by giving in evidence such real or pretended declarations ? It is very certain that no will can be made here of any validity unless it is in writing and subscribed to by witnesses, nor can a will once made be revoked or annulled, except by the same formality or by its cancellation or destruction. Here we have two wills of the testator, both of them are duly proved ; but both of them cannot be good wills, and both cannot stand. The one last executed must prevail, unless it can be over- thrown. To overthrow it, the party offers a variety of declarations of the testator, the objects of which are to sustain the first will and to destroy the last. Suppose the effort to be successful, and suppose the last will to be a good and genuine one notwithstanding, has it not been defeated and annulled by the mere verbal declarations of the testator ? It is no answer to say that here was other evidence which bore against the latter will, for all the other evideuce in the world can never make these declarations competent if they were DECLARATIONS AFTER EXECUTION OF WILL NOT ADMISSIBLE. 491 not SO without it. If they' are evidence at all, they are capable of producing the same result without the aid of any otlier evidence whatever. If they are not competent when standing alone, if offered in sufficient numbers to sustain the first will and destroy the last, they cannot be competent to be thrown in as mere make- weight along with the other evidence to accomplish the same result. Few things are more easy than to make a false or forged bond against a deceased person, and raise it against his estate ; but if a subscribing witness were to swear that he actually saw the deceased obligor sign, seal, and deliver tlie bond, and that he subscribed the same as a witness at the time, how many declarations of the de- ceased obligor, made in his lifetime, that he owed nobody any thing^ that he had never given a bond in his life, and that there was no debt or claim whatever that could be presented against his estate after his decease ? How many such, I ask, or similar declarations could be received in evidence to overcome the bond thus proved, even though it should then be held and prosecuted by one of his children? Not any, beyond all doubt. And why not, says the party resisting the suit on the bond ; for, says he, we not only charge that tliis bond is forged, but we charge also that the sub- scribing witness is one of the conspirators in the fraud, and therefore we claim, under the peculiar circumstances of the case, to lay before the jury such declarations of the deceased obligor himself, being the ancestor of the plaintiff, as must show conclu- sively that he never could have executed such a bond. The answer of the law would certainly be that no such declarations could be received, simply because they were incompetent and unlawful, and there was nothing in the nature of the case to justify the admission of unlawful evidence. Now what is the difference in principle between a will and a bond, and where the charge is, in both cases, fraud, forgery, and conspiracy, and whei'e both are proved in the first instance by the subscribing witnesses ? I can see none whatever, unless it be the one suggested on the argument, that in the case of a will the declarations are those of an ancestor in possession, and that his declarations and admissions may be received against either himself or any one claiming under him. This rule does not apply, I think, to such declarations as have been offered in this case ; but I will examine this point in another connection. 492 UNDUE INFLUENCE AND FRAUD. I think, therefore, upon principle, upon reason, upon safety and expediency, and on the express demands of the statute, that the declarations excepted to in the case sliould have been refused at that trial. I think, too, that the current of decisions, almost unbroken in this country and in England, has settled the law that such declara- tions are inadmissible. In Falkland v. Bertie and Others, in 2 Vem. 833, it was held that parol declarations of tlie testator could not be received to affect his written will ; and Chief Justice Holt there declared tliat he was clearly of opinion that all the parol proof, as to what the testator either declared or intended, was to be dis- allowed, and the case must stand confined to the will, and is to be considered as it stands on the will alone, and must have been .so even before the making of the Statute of Frauds and Perjuries. And in the case of Strode v. Russel, 2 Vern. 622, Mr. Justice Tracy says he was " clearly of opinion that no parol proof ought to have been received, nor is any regard to be had as to expressions before or after making the will, which possibly might have been used by the testator on purpose to control or disguise what he was doing, or to keep the family quiet, or for other secret motives and inducements ; but the will that must pass the land must be in writing, and must be determined only by what is contained in the written will." The case of Provis and Rowe v. Reed, in 15 Com. Law Rep. 490, 5 Bing. 435, is very decided, and more strong and direct to the same effect. It was an offer to prove, by the declarations of the testator, that a will purporting to have been duly executed by him had not, in fact, been so executed. The evidence was rejected at the trial, and such decision was sustained in the court above, and on the ground, almost exclusively, that it would be a violation of the statute, and on account of the extreme danger of adopting such a rule. But the most recent and best-considered case in the English common-law courts, which I have been able to see, is in 35 English Com. Law Rep. 303 ; in which all the judges of England sat except Lord Benman, and their decision was unanimous. The Chief Jus- tice, Tindal, states the question before them as follows: " The broad question, therefore, which has been argued between the parties, has been whether evidence of the testator's intention that his will should not be revoked, is admissible to rebut the presumption of law that such revocation should take place." Again he states it, " The ques- CONSIDERATION OF THE DECIDED CASES. 493 tion now before us relates to the revocation or non-revocation of a will devising real property, and whether the parol declarations of the testator could be received in evidence to affect that question." The court decides that they cannot ; and the reason given by the court clearly is, because the Statute of Frauds has anxiously and carefully excluded all evidence of that nature, with respect both to the original making and to the revoking of wills of land. This reasoning seems to me to be very conclusive ; for when a statute absolutely requires that all wills of real estate shall be in writing, signed and sealed by the parties, and executed in the presence of subscribing witnesses, and when revocations must take place in the same way, it is not possible that the mere verbal declarations of a man can bo permitted either to make or destroy a will ; and if they cannot, when offered in sufficient force, extend to the making or destruction of a will, they should not be received at all. In this country we find, in the case of Jackson ex dem, Coe v. Kniffen, 2 Johns. 31, the question is presented in a perhaps still stronger light. It was the offer of the declarations of the testator, declaring in the presence of divers persons, and for many reasons, that a will which he had executed had been obtained from him under duress, and from fear of being murdered, which declarations he repeated within an hour of his death, and called on those pres- ent to witness what he said, and that he desired to make an equal distribution of his estate among his children ; and that lie had re- quested the person having his will in his custody to return it for the purpose of cancelling it. The court rejected this evidence, and gave for it very satisfactory reasons. In the case of Dan and Wife v. Brown and Others, 4 Cow. 483, the offer was to prove that the testator, a few days before his death, had declared that his will was in his desk at Brunswick, locked up with other papers which he specified, and where the key was. These declarations were rejected by the court as incompetent. In the case of Jackson v. Betts, in 6 Cow. 377, the question again came up on the same will last mentioned, and the sanae and other declarations of the testator were offered in evidence and rejected by the court below, and the ruling was affirmed in the court above. This case was removed to the Court of Errors and reversed ; but the point in question did not arise for discussion or decision. In the case of Smith v. Penner, in 1 Gallison's Reports of the Circuit Court of the United States, the same question came up, and 494 UNDUE INFLUENCE AND FRAUD. Justice Story held that declarations of the testator made at the time of executing the will, or so near to it as to form a part of the res gestce, might be admitted, but no others. He says, " The evidence is inadmissible ; the mere declarations of the testator as to his intentions to do or not to do any particular act, or to make any alterations in his will, is not of itself evidence to revoke or destroy it ; " and even admitting the existence of all fraud charged in the case, he says, still it must be proved not by mere declarations, but by acts done or attempted to be done, and suppressed by fraud, violence, circumvention, or threats. lu the case of Comstock v. Hadlyme Society, in 8 Conn. Rep. 254, ante, p. 174, the same question came up, and the court held that the declarations of the testator about the time of executing the will could only be given in evidence to show the state of his mind, but not as to the facts stated. The previous decisions are all reviewed and approved, and the court says, if his declarations were not a part of tlie res gestoe, I know not on what principle they can be intro- duced as evidence of facts. Tiie same question was raised in the State of Pennsylvania, in 16 Serg. & Rawle, 403. The offer was to prove by the declarations of the testator that his will had been executed under duress. The evidence was admitted in the court below, but the judgment was reversed by the Supreme Court for that reason. The question his been before the Circuit Court of the United States, held in this State, in 4 Wash. 262, the court holding all such declarations to be improper, Judge Washington declaring that nothing could be more dangerous than such declarations, either to control the construction of the instrument, or to support or destroy its validity. This question was presented in the Supreme Court of Missouri, in 24 Mo. Rep. 227, and also again in the same volume, page 236. In the first case, it was offered to be proved that the testator de- clared " that he had never made the will ; that if he had signed it, they had got him drunk, and made him do it, for he had no recol- lection of it." In the second case, it was offered to be proved that the testator declared, on various occasions before the date of the will, and afterwards up to the time of his death, that the legatees mentioned in the will " should never have any of his property ; " and also on several occasions after the making, that " he had no will." The court held, in both these cases, that the evidence was unlawful. CONSIDERATION OP THE DECIDED CASES. 495 111 Robinson v. Hutchinson and Wife, in 26 Verm. Rep. 38, the ofiFer was made to prove, by the declarations of the testatrix, that the will was procured by undue influence over her, amounting to a species of coercion or duress ; but the court held the evidence to be incompetent to prove any such facts. Again, in tiie Court of Appeals, in the State of New York, in the case of Waterman v. Whitney, inl Kernan, 157, the court held, after reviewing all the cases, t4iat the declarations of a testator could be given in evidence if a part of the res gestae, or to show unsoundness of mind, but were not competent evidence to impeach the validity of the will, on the ground of fraud, duress, imposition, or other like cause. In 20 Penu. Rep., Judge Black says, that when a will is made by a man of sound mind and memory, it cannot be defeated by proof tliat his intentions were different at a previous time. The law, therefore, seems to be well settled against the admis- sion of the declarations of the testator in this case, except such as formed a part of the res gestce, and such as went to show mental incapacity or imbecility ; and I have been able to find but two ad- judged cases that seem to conflict with this doctrine. In the case of Reel V. Reel, in 1 Hawk's North Carolina Rep. 248, the reason- ing of the court is against it, although the case itself and the deci- sion upon it are not inconsistent with it. The case of Howell v. Bardeii, 3 Dev. 442, was also cited, on the argument, as being of an adverse ciiaracter, but I have not been able to see it. The case of Nelson v. Oldfield, 2 Vern. 76, so often referred to to sustain the kind of evidence now under consideration, and so often condemned, is no authority at all. The validity of tlie will was not before the court, and the Court of Chancery had no authority over the question if it had been. The will in that case had been duly proved before the competent and proper tribunal. It was a settled matter, so far as the Court of Chancery was concerned, and the Cliancellor was bound to treat it as such ; but on an applica- tion to him to enforce one of its provisions, he saw fit to consider depositions that had been taken in the case, and which went to show, in his opinion, that the will had been wrongly admitted to probate, and he thereupon refused to enforce the provision. An effort was made to draw a distinction between a will which had, in fact, been signed by a testator through fraud or duress, and one which it is charged he never executed at all ; but I cannot per- 496 UNDUE INFLUENCE AND FRAUD. ceive the distinction ; I cannot see why the declarations of a testa- tor are less legal when they apply to a will which he has executed through fraud or duress, and which he is supposed to have some knowledge of, than when they are offered to apply to one that he never signed, and to which he cannot be supposed to have referred. It was also urged, on the argument, that' the declarations in ques- tion should have been received, because they were the declarations of a common ancestor in possession under and through whom both the parties in this suit claim title. This idea is suggested in tlie opinions of some of the dissenting judges in some of the cases above cited, but the rule referred to applies quite as much to a purchaser as to an heir-at-law or a devisee. The reason why the declarations of a formal owner in possession can be given in evidence against those who hold under or through him, is because they are admissions made against his own interests, sucli as the admissions of defects in his own title, and such admis- sions, as might be given in evidence against himself. Sucli admis- sions thus made pass with the land as a kind of incumbrance upon it, and may be given in evidence against a subsequent owner ; but you can give in evidence no declarations or admissions of a former owner against a subsequent one, except such as might have been received against the former owner himself; but as a testator, wlien speaking of the contents of his will, is making no declarations against his own interests or title, or one tliat could be offered in evidence against himself, so no such declaration can be received against the title of one claiming under or through him. Suppose an action of ejectment had been brought against J. M. Meeker, in Ids lifetime, to recover possession of his real estate, how many of all his declarations that have been offered in evidence in this suit could have been lawfully received in that to effect his title? Not one of them. They cannot, therefore, be offered to effect the title of any one claiming under him. Jonathan Edwards Hoyt was one of the subscribing witnesses to the will of January 12, 1852. He was deceased at the time of the trial, and the will was proved by the surviving witness, and with such proof offered in evidence. The plaintiffs demanded of the defendants that, before the will could be read in evidence, the deposition of the said J. E. Hoyt, touching the execution of the said will, taken on another occasion COMMENTS ON THE TESTIMONY. 497 and reduced to writing, should first be offered in evidence. Tlie defendants refused to do so, and the court, on application for that purpose, refused so to direct. The plaintiffs thereupon afterwards offered to give in evidence various declarations of the said Hoyt, made at various times and places, and to various persons, both before and after the execution of the said will, but not confined to such as were part of the res gestae of the execution of probate thereof, and they also offered to prove the bad character of said Hoyt for truth and veracity, to all of which evidence the defendants objected, but the objections were overruled by the court, and tlie evidence admitted ; and this is urged as another reason for setting aside the verdict. I find it impossible to perceive the ground on wliich the admis- sion of this evidence can be justified. The declarations offered were not confined even to such as related to the execution of the will, but any declarations and all declarations which he had ever made, either to the testator or about the testator, or about his will or about his property, or on any other matter which seemed to have even the most remote reference to the testator or to his affairs, were received in evidence, and eighteen different witnesses were examined to testify to something that lie had said at some time or another. Now if Hoyt had been living at the time, and tlie defendants had offered him as a witness to prove the execution of the will, and had availed themselves of his evidence, the adverse party might, of course, have contradicted him by showing, if they could, that he had at other times given a different version of the same transaction. But the defendants did not do this ; they neither availed nor attempted to avail themselves of any advantage from the testimony of Hoyt. In fact, they declined to do so. The execution of the will in due form was fully and completely proved by the other subscribing witness, and the only use made of the signature of Hoyt to the will was to show, as was done by the other witness, that the requirements of the statute had been complied with at the time ; that the testator had in fact signed the will in the presence of two subscribing witnesses. No other use was made, or offered to be made, of the signature of Hoyt. It was not necessary, nor was it used to prove the sfttestation clause, for this was sufficiently proved by another. On what principle it is, then, after death has deprived the party 32 498 UNDUE INFLUENCE AND FRAUD. of the presence and testimony of the subscribing witness, and after the grave has closed over him, and he can no longer defend or protect his character or conduct, or inform others how to do so, and when he can neither contradict others nor explain his own conduct, or conversation, and when his signature to the instrument is only used to prove the fact that it is there, and not in any wise to prove the genuineness of the will, — on what principle it is that a witness so circumstanced can have every remark that he ever made, which can by possibility be construed into a reference to the subject offered in evidence, when he himself has given no evidence to contradict and have his character for truth subjected to- a. post mortem examination when he has said nothing which the jury can be called on to disbelieve, is more than I can comprehend. There is a semblance of reason for the admission of this kind of evidence where there is but a single subscribing witness to the instrument who has deceased, and when the proof of his signature is indispensable, and, being proved, it is supposed to prove the attestation clause, if there be one, and to amount to prima facie evidence of the execution of the paper. In such cases the signa- ture is made use of not merely to show the fact that it is subscribed to the paper, but it is made use of to prove the actual execution of the instrument. Here there seems to be something to combat, and the courts, in a case or two in former times, have allowed the evidence, but they have never carried it any further. The case before us, however, does not belong to that class, and is not effected by the reason and necessity supposed to exist in such cases ; but in no case can the boundless range of declarations allowed in this trial be sustained. If the witness had been living, and had been examined, all of his declarations tliat could be offered in evidence would merely be such as would contradict something that he had said on the witness-stand, and no more. Now all that this de- ceased witness can by possibility be supposed to say, through his signature on the will, is that he saw the testator execute it ; and all the declarations in any such case that could be allowed, would be such as bore on that point, and such as contradicted what the signature is supposed to speak, and not every declaration that he had evei- made relating to either Meeker or Boylan, or any one else. The cases tiiat bear on the subject are not very numerous. A few are to be found in the English books, which at one time DECLARATIONS OP DECEASED WITNESSES. 499 feebly sustained the idea that the dying declaration of a sub- scribing witness, adverse to the due execution of the instrument which he had subscribed, might be given in evidence ; but this doctrine has long been abandoned there, and in 1836, in the case of Stobart v. Dryden, 1 Meeson & Welsby, the Court of Exchequer, after a careful examination of all the cases, all the judges who heard the case concurring, held that all declarations of a deceased subscribing witness were inadmissible. Tiie offer of the defendant in that case was to give declarations of the deceased subscribing witness of facts tending to prove that the deed was a forgery.. Lord Ahinger rejected them, and on a rule to show cause being granted, and elaborately argued, Parke, B., who delivered the , opinion of the court, remarks, " .We who lieard the argument are all of opinion that the evidence was properly rejected ; " and the question may be considered as having been there put at rest. I have been able to find but a single American case which sustains the doctrine of giving in evidence the declarations of deceased subscribing witnesses. In the case of McElwee v. Sutton, 2 Bail. Rep. 128, the South Carolina Court of Appeals seemed to take this position. The structure of this court I am not familiar with. Its reason- ing in the case is quite unsatisfactory to me, and I prefer greatly to adopt the principles and reasonings of the case in 1 Meeson & Welsby, 614. On the point of receiving evidence to impeach the character of a deceased subscribing witness, I find no authority in any English decision, and but one American decision, where the character of a deceased subscribing witness has been assailed. This is the case of Losee v. Losee, in 2 Hill, 609. This case fully sustains the principle contended for in the present case, and the Chief Justice, in delivering the opinion of the court, cites as his authority six English decisions ; but what seems a little remarkable is, that not one of these decisions supports the doctrine, nor is the subject of directly impeaching the character of a deceased subscribing wit- ness referred to in either of them. The question in three of these cases was simply as to the admission of dying declarations. In the other three the execution of written instruments had been assailed for forgery and fraud, and the character of the deceased subscribing witnesses thereby impeached by implication : the parties c astaining the instruments were permitted to show the good char- acters of the witnesses by way of rebutting such implication. 500 UNDUE INFLUENCE AND FRAUD. In 10 Serg. & Eawle, 155, the court permitted a party to impeach the books of account of his adversary, by showing that the person who kept them, who was one of the defendants, who was living, but absent, was of bad character for honesty. In 2 Yerger, 23, and 1 Harrington, 109, the characters of subscribing witnesses were allowed to be impeached in some way, but how they were impeached, or whether the witnesses were living or dead, I have not been able to learn from such parts of the cases as I have been able to see. In the case before us, the character for truth and veracity of the deceased witness has been assailed, but it seems difficult to per- ceive on what principle the character for truth and veracity of a person can be impeached who has not been sworn, and who has not uttered a word. If he can be impeached at all merely as a subscribing witness, it cannot be for any thing that he has said, but for sometliing that he has done. If there is any thing that can be laid to liis charge, it is the concocting of a forged or fraudulent will, and signing his name to it as a witness. If tlie plaintiffs can be permitted to show, by an attack upon his character, tliat he is base and bad enough to do this, it should be by assailing his char- acter for honesty, and not for truth, technically speaking. It is said, however, that the offering in evidence of the deposi- tion of Hoyt cures this error, if it be one. I do not think so. Where the evidence is unlawful when offered, and the opposite party objects to it, and resists its introduction, but has it forced upon him, nevertheless, and suffers all the evil effects of it before the jury, he cannot be considered as consenting to it, or committing himself to it by afterwards attempting to combat it by evidence which he would not otherwise have introduced. When a witness is placed upon the stand who is clearly incompetent, and objection is properly taken and overruled, the party objecting cannot be considered as legalizing the testimony thus offered by a cross- examination of the witness. The defendants in this case declined to use the deposition of Hoyt, although urged to do so by the plaintiffs, choosing, I suppose, to forego the advantage of his testimony rather than embarrass the case with questions likely to grow out of it. This they had a right to do, and when tliey did offer it, it was not so much to prove the execution of the will, as to neutralize, so far as it would so, the unlawful evidence to . which they had been subjected. This they had a right to do, UNNATURAL CHARACTER OF THE WILL. 601 also, without thereby legalizing the evidence to which they had objected. I think, therefore, that the introduction of all these wide, sweep- ing declarations of Hoyt, as well as the evidence touching his character, under all the circumstances of this case, were clearly wrong ; and as they may have had a controlling influence over this verdict, it should be set aside for that reason. VI. How PAR THE Unnatural Character op the Will is Evi- dence op IT BEING PROCURED BY IMPROPER InPLUBNCB. KeviU V. Kevill, Court of Appeals, Kentucky, 1866, 6 American Law Itegister, New Series, 79. Although the unnatural character of the will may not alone be sufficient to justify the presumption, or inference, that it was the result of undue influence, it is always entitled to consideration, as tending to show either testamentary in- capacity or undue influence. The facts sufficiently appear in the opinion of the court by — Robertson, J. Admitting that, anomalous as the procedure in this case certainly is, the party succeeding on the issue might be entitled to a new trial for the purpose of making the case stronger in the Appellate Court, nevertheless the discovered testimony in this case, being only slightly cumulative, was of such a character as not to have sustained a verdict which, without it, should be set aside as unauthorized by the evidence heard by the jury ; where- fore we cannot grant a new trial to the appellants, who obtained the judgment in the Circuit Court. But, in our opinion, the Circuit Court erred in refusing a new trial to the other party. Gross inequality, apparently unjust or unreasonable, is not alone sufficient to invalidate a will which otherwise would be unassailable. The testamentary power is of great value in both its enjoyment and its results, and therefore it should be well guarded by the law and sternly upheld by the judiciary. Every competent and self- poised mind has, and should always have, an unquestionable right 602 UNDUE INFLUENCE AND FEAUD. to make its own will according to the law of the land, and no per- son, either wife or child, has any legal right to deny that conserva- tive power or gainsay the free and voluntary exercise of it. But apparent inequality or unreasonableness in a testamentary disposi- tion is entitled, in proportion to its degree of flagrancy, to some auxiliary influence on the question of capacity or fraud or control- ling influence, and, unexplained and combined with other corrobo- rating evidence, it may be entitled to great influence. This is the uniform and undeviating doctrine of this court, and it was never, in any instance when rightly understood, adjudged otherwise. The apparent inequality in Kevill's will may in some degree be reconciled with parental justice and impartiality by the fact that when the testator married his last wife he was comparatively poor ; considerably increasing his estate as he did by the accession of her property, he may have thought it his duty to give to her children the value of her original property and its increase. But however this prudential consideration might have operated, the apparent inequality on the face of the will is not sufficiently fortified by other evidence of incapacity or sinister influence to invalidate it as the testator's last testament. Few wills have ever been sustained by more consistent and satis- factory evidence of testamentary capacity. The writer of the will testified that the testator dictated and fully explained every provi- sion, and was clearly of sound and disposing mind. Three other subscribing witnesses testified to his capacity with equal confidence. And all these witnesses had been long and intimately acquainted with the testator. Several other like acquaintances fully and con- fidently concurred in favor of his capacity, which is also corrobo- rated by proof of his provident and successful attention to his business even after the publication of his will, and nearly or quite to his death, seven years afterwards. This mass of opinions and facts, made almost conclusive by the internal proof arising from the testator's calm and intelligent dictation of a will so minute and elaborate, is scarcely affected, in any rational degree, by any oppos- ing opinions or facts concerning capacity. Indeed, when carefully analyzed, the opposing testimony does not essentially impair the overwhelming evidence of capacity at the date of the will, but may be consistent with it. We are, therefore, of the opinion that the will is unimpeachable for want of disposing mind. DISCUSSION OF ITS INGREDIENTS. 603 On the question of the wife's imputed influence, there is some doubt, but not enough to sustain the judgment against the will. The effect of all the testimony on this point is only that the wife had certainly some and probably great influence over the testator's mind in concerns of trivial importance. But it fails to show any instance of the successful or sinister exercise of it in any important matters. On the contrary, all the testimony exhibits him as a man of sound judgment and strong self-will in all important concerns. Now, although it may be true that step-mothers often feel jealous of their husband's children by other wives, and sometimes success- fully plot dissension and alienation, and even though there may be some ground for suspecting that this case may afford some illustra- tion of that fact, yet there is certainly no proof of it, or of the ex- ercise of any subjugating influence in the moulding of the will of Thomas Kevill. Wherefore the judgment setting aside the will is reversed, and the will is established by the judgment of this court, and the cause remanded to the Circuit Court, with instructions to set aside the verdict and judgment in that court and certify this judgment to the County Court. The fact that the foregoing case seems to assume grounds, in some respect, different from those maintained in the majority of cases involving similar ques- tions, will not render it of less interest to the profession. A somewhat extensive and careful study of cases bearing upon analogous questions, and large expe- rience in the trial of similar cases, has convinced us that it is not practicable to lay down any general rule in regard to them which will not require frequent and marked modifications in its application. The learned judge places great reliance upon two facts as tending to show that there was no satisfactory proof of undue influence in the case : 1. That the tes- tator, although more than seventy years old, was possessed of abundant capacity to execute a will of the character in question, understandingly, when left to his own free-will and voluntary action. 2. That although his wife had confessedly very controlling influence upon his mind, in matters of trivial concern, the evi- dence failed to show any instance of such influence of a sinister character " in any important matters.'''' It is also stated, as the result of the evidence, that in all important matters the testator was a man of sound judgment and strong self- control. Considerable reliance is also placed upon the fact that the testator dictated the will in such a manner as to show evident capacity and the most unquestion- able freedom of action. It is confessedly true that these considerations have an important bearing upon the question of und/ue influence in ih^ factum of a will. But there are two species of influence in the production of a will which may properly be regarded as undue. One where the testator is a mere passive instru- 504 UNDUE INFLUENCE AND FEAUD. ment in the hands of those who produce the will ; the other, where he lacks that active control in the affairs of his household which enables him with reasonable firmness to resist the importunities and especially the dictation and offensive annoyances of those about him who desire to control the disposition of his estate, and where he is consequently driven by the dread of such silent but intolerable grievances to make such a will as he understands will alone give him quiet and peace. In regard to the former species of influence, this case is certainly free from all question, and it would rather seem that most of the argument of the court is directed towards rebutting jiny inference of this species of influence. But in regard to the other kind of influence, it does not appear to us the case is equally free from doubt. The testator was aged, and, unquestionably, to some extent, infirm both in body and mind ; he was living with a second wife, who clearly had very marked influence over him ; he made a will giving most of his property to the children of the second marriage, to the virtual disinheritance of those of the first mar- riage. Here, then, was a clear case of an unequal, and, on general principles of natural justice, an unjust distribution of property among those equally entitled to the testator's bounty. The will, then, was of that character, which, if pro- duced by any extraneous influence, such influence would be regarded as undue influence. For it is not the extent, but the character of the influfence, which the law regards as unlawful. A wife or a child has the legitimate right to influence the husband or parent to the extent of doing justice. And although it should be shown that without such influence the will would not have been made or would have been differently made, it will nevertheless be valid if it be not in any marked degree unequal and unjust. But the same degree of influence, when exerted to produce a vicious result, — an unequal or unjust distribution of the estate among those equally entitled, — would be held unlawful, or what the law denominates " undue influence." We have examined the authorities and the principles involved in this and kin- dred inquiries in the first part of our work on Wills, § 38, pp. 507-638, where it is shown that undue influence partakes partly of the nature of fraud ; and if the person in favor of whose influence the will is made, either for his own benefit or that of others, is conscious, as a person of common experience and wisdom must be presumed to have been conscious, that an unjust result was being obtained in having the will made as it was, and such result is secured by personal solicitation or influence of any kind, although not by words, or by any distinctive and de- finable acts, still if such result is attained through the agency of other minds than that of the testator, the will cannot be maintained. This is well illustrated by Gilreath v. Gilreath, 4 Jones' Eq. 142; Dean v. Negley, 41 Penn. St. 312, ante, p. 439 ; Floyd v. Floyd, 3 Strobh. 44 ; Woodward «. James, id. 662 ; Means v. Means, 5 id. 167. The cases bearing upon this point are too numerous to be here referred to. They are cited very much in detail in the treatise above named. The precise degree of proof required to establish undue influence it is not easy to define. It is generally held that a will proved to have been understandingly executed, although in favor of a stranger, to the exclusion of near relatives, is prima facie valid, and that those who oppose the will must show distinct grounds EFFECT OP THE CHAEACTER OP THE WILL. 505 upon which it should be set aside. Sechrest v. Edwards, 4 Met. (Ky.) R. 163, ante, p. 299. But in a later case in this same State, Harrel v. Harrel, 1 Duvall, 203, ante, p. 293, it is said: Gross inequality in the dispositions of the instru- ment, where no reason for it is suggested either in the will or otherwise, may change the burden and require explanation on the part of those who support the will to induce the belief that it was the free and deliberate ofispring of a rational, self-poised, and clearly disposing mind. But it must appear, either by direct proof or reasonable presumption, that the will is not truly that of the testator, freely and understandingly made. The character of the will, as applied to the testator's character and surroundings, may show this as fully as more direct and express testimony. But, in general, no doubt, there should be proof of distinct effort (and under such circumstances as to raise the presumption that it became successful) to produce a different will from what the testator would otherwise have made, in order to invalidate the instrument. But in oases where the testator is confessedly under the influence and control of the principal legatee, and especially if the testator were laboring under in- firmity or disability, as if his mind were enfeebled, or he were deficient in one or more of the important senses, as if he were deaf and dumb, or blind, or unable to read writing from defect of education, the courts have very justly exercised great circumspection to have it appear by satisfactory proof that the instrument was understandingly made. And in many cases it has been determined by courts of authority that in this class of cases, if the will is unequal, and especially if it is unnatural, by the disinheritance of the children of the testator, it cannot be maintained, unless the proof removes all reasonable doubt or suspicion in regard to it having been freely and understandingly made by the testator. By this we do not of course understand that the courts making such declarations of the rule of evidence intend to require exactly the same measure of proof in such cases as in criminal cases. But where the facts surrounding any claim tend to excite just suspicion that there is something factitious in its character, that implication should be entirely removed. And so long as any claim is presented in a ques- tionable guise, to any extent, it ought not to receive the indorsement of the courts until that characteristic is satisfactorily explained and removed. These views are abundantly and ably maintained by the opinion of the court in Wat- terson v. Watterson, 1 Head, 1. 506 UNDUE INFLUENCE AND FRAUD. VII. Effect of Will being written or dictated by Person SUSTAINING AN INFLUENTIAL RELATION TO THE TeSTATOR, AS BY A Clergyman, Guardian, Parent, or any other Relation op Superiority. In re Welsh, 1 Redfield's Surrogate Reports, 238. 1849. Where a testator retains sufficient mind to make a valid will, when left wholly free from all extraneous influence, he may still be in so infirm a state as to require vigilance on the part of courts to protect the free exercise of his tes- tamentary capacity. In such cases, where the will is dictated by an interested party, sustaining towards the testatrix the relation of spiritual adviser, and where large bequests are made to religious objects, it raises such a presumption of fraud and undue influence that it becomes necessary, in order to establish it, to give very clear proof to the contrary. Where part only of the will is the result of undue influence or fraud, the re- mainder may be established by the court. The opinion of the court was delivered by — Robertson, Surrogate. Undue influence may be proved by direct evidence of importunity, or the practice of arts upon the decedent by the supposed agent, or may be presumed from the proof of facts which throws upon the party seeking to establish the will in question the burden of proving it to have been the result of free agency and complete understanding of the contents ; and this case is put by the contestants on both grounds. But of the former species of evidence there is little trace in this case, except mere conjecture as to the objects of visits by the party im- plicated to the decedent, not sufficient to merit much considera- tion, and I shall, therefore, proceed immediately to consider the presumptive evidence which requires countervailing proof to over- throw it. The first point to be looked at in this connection is the position and character of the decedent. She was a widow upwards of eighty-five years of age, possessed of an estate of upwards of twenty thousand dollars, consisting of about twelve thousand dol- lars of real estate, and the residue of personal, which seems to have been derived from her deceased husband. She had no de- COMMENTS ON THE TESTIMONY. 607 scendants, nor was there any one who seems particularly to have been intended or selected by her as the object of her posthumous bounty. She lived alone with a very aged companion, and was dependent upon several persons, strangers to her blood, for occa- sional services in her household and small matters of business. Her own relations, with two exceptions, resided at some distance from her, and visited her occasionally. Some of her husband's relatives resided more near her, and visited her more frequently. The decedent died of a pulmonary disease about eleven o'clock of the evening of the day the will was executed, which took place about two o'clock in the afternoon. The natural character of the decedent, or as it developed itself towards the end of her life, is to be gathered from the testimony of all the witnesses. The testimony of Mrs. Sawyer, Mrs. Knapp, and Dr. Underbill, shows her to have been set in her ways, not easily persuaded, opposed to making a will, and resisting medical directions. The admissions of Mr. Cox show her to have been a woman of con- siderable mind and a good deal of independence, impatient of advice, leading to mismanagement of her affairs by accumulating idle hoards in banks, amounting at her death to 12,700, while she had $1,600 loose cash in her house. This kind of self-reliance is rather opinionativeness than inde- pendence, and is not inconsistent with a liability to be governed, if properly approached. Still, it requires some evidence to show that the energy which gave character to this obstinacy had failed, and that nothing remained but the unreasoning caprice, or that arts had been practised which turned her strength to her destruc- tion. For this purpose the condition of the party must be ex- amined at the time of ^e factum. The disease affecting the decedent at the time of her death was lingering and exhausting, so much so as to prevent rest, except in a sitting posture in a chair. Though not likely directly to affect the mind, it still must have greatly impaired its energies at so advanced an age so shortly before her decease. This effect was visibly and rapidly approaching towards the close of her life, according to the testimony of Mrs. Sawyer, young Mr. Shepherd, and Drs. Underbill and Hyslop, particularly as regarded her physical strength ; her faculty of memory was evi- dently much damaged, particularly as regarded claims on her bounty and affection. Her forgetfulness of Miss Shepherd, Miss Test, and Mr. Heins, shows this. 508 UNDUE INFLUENCE AND FRAUD. At the very time of executing the will, her infirmity and failing strength must have been apparent, for though she expressed no inability, and was not asked if she could write, Mr. Barker, the draftsman and subscribing witness to the will, suggested that she should make her mark instead of writing her name, which could only have" originated from some appearance of great weakness. The character of her signature confirms this ; and the only cir- cumstance relied on by Mrs. Gattey, as proof of her strength, her never lying in bed, is shown to be a necessity arising from her disease. There existed in her case perhaps neither delirium nor absolute torpor : she was able to answer ordinary questions or salute an acquaintance ; but this does not establish competency for every act. But, as observed by Sir John Nicholl, " it is a great but not uncommon error that if a person can understand a ques- tion put to him, and can give a rational answer, he is of perfectly sound mind, and is capable of making a will for any purpose what- ever ; whereas the true rule of law — and it is a rule of common sense — is, the competency of the mind must be judged of by the nature of the act to be done, and from a consideration of all the circumstances of the case." Marsh v. Tyrell, 2 Hagg. Ecc. R. 122. In regard to the testimony of Mr. Barker, it appears he had no previous knowledge of the testatrix ; and all the means he used to test her soundness are before the court, from which it can make its own deductions. This I shall lay aside at present to examine hereafter in connection with another important question, the spontaneous character of this instrument. The result of all this testimony, taken together, I regard not as establishing absolute intestability, but only that species of diminution of mental power which, accompanied with any suspicious circumstances as to the origination or execution of the instrument, calls for proof of prior instructions, or complete recognition of every part of the will as being the free act of the decedent. In making such inference, I feel fully justified by the language of various cases. In Brydges v. King, 1 Hagg. Ecc. R. 265, Sir John Nicholl says : " At this ad- vanced age, after this long illness, having been confined to her bed two months, being in extreme bodily debility, ending in gradual dissolution, the' deceased must so shortly before her death have been laboring under considerable infirmity." lu Montefiori v. Montefiori, 2 Add. R. 366, the same judge says : " The deceased MENTAL CAPACITY OP TESTATOR. 509 was several months in a declining state, worse on the night of the instructions, and five hours before her dissolution this transaction begins. I think it highly probable a priori, on the face of this statement, that her capacity was impaired." And tlie same prin- ciple is further elaborated in the case of Billinglnirst v. Vickers, 1 Philim. R. 193. This being established, it next becomes necessary to examine her intellection and the origin of the instrument. In regard to the first point, had the case turned upon tlie question of such proof of the understanding of this instrument as the law requires in case of impaired capacity, I should have hesitated in coming to a con- clusion, because something said by her appeared to show a knowl- edge of part of the contents of the instrument, inasmuch as she suggested giving a legacy to a person omitted ; but this, after all, is rather a perception of what was omitted, an instinctive con- sciousness, than a perfect understanding of its contents. With this exception, the case comes fully within the principle laid down in Croft v. Day, 1 Curt. 789, that something must be said or done, showing the proper understanding. The doctrine laid down in that case is corroborated by the cases of Ingram v. Wyatt, 1 Hagg. Ecc. R. 469 ; Wyatt v. Ingram, 3 id. 466 ; King v. Parley, 1 id. 502 ; Williams v. Goude, id. 595 ; Durnell v. Corfield, 1 Rob. Ecc. R. 62 ; and Harwood v. Baker, 3 Moore P. C. 290. I think it cannot be denied that Mr. Cox is placed in the atti- tude of a party benefited, or who may derive a benefit from the will, so as to require investigation as to its spontaneous character and the means taken by the counsel employed to ascertain it. The degree of that interest is immaterial, except perhaps as to the weight of evidence required to prove volition. In the case of Tomkins v. Tomkins, 1 Bail. S. C. 96, a mere interest as guardian of certain children was considered sufficient to evoke the application of the principle wiiich I shall apply in this case, — tliat the court is bound to be vigilant in ascertaining that the decedent was acting on her own impulses, where capacity is impaired, and the party directing the preparation and execution of the will is benefited. This is not a modern doctrine, or one un- supported by experience. Swinburne says quaintly (1 Swin. 189) : " Worthily and with great equity and reason is that to be deemed for no testament when the sick person answereth ' yea,' the inter- rogation being made by a suspected person." And he puts it both 510 UNDUE INFLUENCE AND FRAUD. on the ground of suspected deceit as to the legatee, and want of testamentary intention in the decedent. Under the civil law, a preparation by an interested party rendered a legacy to him void. Dig. Lib. 34, tit. 8. Under the modification of that law adopted by English ecclesiastical courts, such preparation only throws the burden of proof of voluntary origination with the testator on the person propounding the instrument for probate. It is true that at common law, where a deed or contract is executed by a party not of unsound mind, he is presumed to understand its contents, and not to be acting under any undue influence ; but in courts having exclusive control of the probate of wills of personal property, it is otherwise : mere impaired capacity throws upon the party seeking to benefit by an instrument made under it the burden of establish- ing understanding and volition, particularly when prepared by an interested party, — a principle recognized by common-law courts, at least where wills of personal property are in dispute. Clark v. Fisher, 1 Paige, 176. An unbroken series of cases in the English ecclesiastical courts, overhauled on appeal by the common-law judges, establish the doctrine incontrovertibly. Sir John Nicholl, in one case (Marsh v. Tyrrell, 2 Hagg. Bcc. R. 87), says, the party originating and conducting the transaction being present at all ma- terial parts of it, " the case proceeds to the evidence of the factum under presumptions of fraud and imposition." In another, Bil- linghurst v. Vickers, 1 Phillim. R. 193, " the presumption is strong against an act done by the agency of the party benefited." In a third, Paske v. Ollatt, 2 Phillim. R. 323, " where the person who prepares an instrument and conducts its execution is himself an interested person, his conduct must be watched. Presumption and onus prohandi are against the instrument." The same doc- trine is reiterated in Ingram v. Wyatt, 1 Hagg. Ecc. R. 390 ; Dar- nell V. Corfield, 1 Rob. Ecc. R. 62 ; and stated in the elementary work of Swinburne, 1 Swin. 191, and adopted in the case at com- mon law of Tomkins v. Tomkins, 1 Bail. 92. Whatever may be the theory on which it is founded, — whether the supposition that the benefited party is presumed to have contrived the whole trans- action, or the more extensive principle to which I shall presently advert, of being employed in the confidential capacity of procuring the will to be drawn, and therefore to be watched, — I consider it too well settled by decisions, and consistent with the common experience of mankind, to disturb or doubt it. EFFECT OF CONFIDENTIAL RELATIONS. 511 The additional ground to which I have alluded, why the case requires conclusive proof of volition and intelligence on the part of the decedent, is the confidential relation subsisting between the party benefited and the testatrix. Mrs. Welsh appears to have been an attendant on Zion Church, of which Mr. Cox was pastor, and favorably disposed towards him, though opposed to the other officers of the church. Mr. Cox, whose residence was nearly opposite hers, visited her for several years before her death frequently, and latterly almost daily, and it is but fair to presume that his visits, considering her state and his profession, were pastoral. The confidence arising from this must have been very great, so much so that even daily visits were not considered sufficient, and she complained that he did not come more frequently. The comfort, therefore, of his presence, and the reliance upon his advice, must have been very great ; for such is the weakness of human nature, that we come to believe that from the lips whence flows religious instruction nothing can come less pure. While on the other hand, a religious guide, urged on by the zeal of his profession, and dazzled by the glory of the object, may sometimes be blinded to the means used to obtain it. Statutes of mortmain are left as evidence of the danger, arising from the abuse of a confidential relation, and the precautionary means adopted against it, in the case of ecclesiastics. Different municipal laws in all countries have prescribed the cases in which parties standing in a confidential relation to another can take no benefit from them by a gift, particularly executory or prospective gifts, which rule there has been a constant tendency to extend. Thus the law of Prance, which in terms only mentions " tutors," was by construction extended to schoolmasters, directors of the conscience, and attendant physicians (Pothier, Don. entre Vifs, § 1), and that too where the party was alive. The law of England establishes the general principle only as one of presumptive evi- dence, and leaves the party claiming to be prepared with evidence, in such case, to rebut it. In Griffiths v. Robins, 3 Madd. R. 19, the dependence arose from the infirmity of the donor and reliance upon the kindness of the interested party. In Huguenin v. Base- ley, 14 Yes. 287, the confidence arose from the party being a spir- itual adviser. In Vaughan v. Lloyd, 5 Ves. 48, the party was an agent. In Dent v. Bennet, 7 Sim. R. 546, the party was a phy- 512 UNDUE INFLUENCE AND FRAUD. sician. But the Vice-chancellor gave the instance of a clergyman as an extreme case in which he should apply the principle. In Gibson v. Jeyes, 6 Ves. 278, Lord Eldon stated it to be " the great rule in equity, that he who bargains with a person placing confi- dence in him, is bound to show that a reasonable use has been made of that confidence, — a rule applying to trustees, attorneys, or any one else." If this be so in regard to a contract where the party imposed on has the fear of loss of what he parts with as a spur to his vigilance, how much more should it be so in regard to posthumous bounty, where the testator only directs how that shall go of which death shall certainly deprive him ! The same principle is echoed in Barrow v. Rhinelander, 1 Johns. Ch. 556, where the simple relation of employer and clerk was considered sufficient for its application, and was applied with great effect in Whelan v. Whelan, 3 Cow. 572, 583. Nay, so far has the doctrine been car- ried, that even after the state of dependence has ceased, if it has ever existed, the same scrutiny is exercised. Thus in Osmond v. Pitz- roy, 3 P. Wms. 180, the party claiming had been the confidential domestic of a minor, and obtained, after he was of age, a security. In Griffin v. Devenille (in Cox's note to 1 P. Wras. 131), a minor had lived with a sister for a long while before coming of age, and had afterwards executed a security to her husband. In Wright v. Proud, 13 Ves. Jr. 137, a lunatic, after restoration to reason, exe- cuted a security to a keeper of an asylum for lunatics ; yet the rule was applied though the relation had ceased. Whenever influence may be presumed, it is to prevail (Evans v. LleweUin, 1 Cox, 334 ; also 4 Mylne & Cr. 269) ; and that, too, regardless of the personal character of the party benefited (Tomkins v. Tom- kins, 1 Bail. 92). This being a general rule of law, it surely is not too harsh to apply the language of the eminent judge who pro- nounced the decision in the case of Harwood v. Baker, 3 Moore P. C. 290, to this case : " Protection is most needed where the mind is too enfeebled to take in more objects than one, and most especially when that one object may he so forced upon the atten- tion as to exclude all others that might require consideration." A rule so inflexible cannot yield even to the claims of a sup- posed scheme for advancing religion, particularly when tinged with sectarianism. The burden being thus thrown on this executor of proving affir- matively good faith and a proper use of the confidence placed WHETHER PART OP THE WILL CAN BE MAINTAINED. 513 I in him, it becomes necessary to examine the facts tending to show it. [The learned surrogate having arrived at the conclusions, — 1st, that the faculties of the decedent were so deteriorated as to let in proof of the mode of preparing the will and presenting it to the mind of the testatrix ; and 2d, that its preparation under the direc- tion of a party benefited by it, standing in a confidential relation, raises the presumption of undue influence, — proceeds to discuss the testimony and the means employed to discover spontaneity. As his conclusion — that the means which were employed in tiiis case were not calculated to rebut the presumption, and therefore the portions of the will from which the interested party derived his benefit must be rejected — was not concurred in by tlie general term of the Supreme Court, to which an appeal was taken, though otherwise affirmed, the rehearsal and discussion of the testimony on this point are omitted. The decree of the Supreme Court may be found in the New York surrogate's office, in Liber of Wills, 107, at pp. 1-30.J It only remains to inquire if the whole will must stand or fall. If the question were res Integra, both on the score of justice and policy, the power of sustaining part and rejecting part should be upheld ; of justice, because it would be hard that those wlio were voluntary and natural objects of bounty should suffer by the acts of another ; of policy, because the fraudulent contriver might throw into the instrument probable gifts to color the transaction on one hand, and seal the moutlis of witnesses on tlie otlier ; but the law has been settled on this point long since. Shelf, on Lun. 333 ; 2 Law Lib. 212. Codicils, which are as much part of wills as if incorporated therein, and draw the will down to their date, as if then republished, are frequently rejected (Crosbie v. MacDoual, 4 Ves. 610 ; Sherer v. Bishop, 4 Bro. C. C. 55 ; Brounker v. Brounker, 2 Phillim. 57), leaving the will to stand. In fact, courts of probate exercise complete control over the will, in case of fraud- ulent insertion in the testator's lifetime, or incapacity during the execution of part (Billinghurst v. Vickers, 1 Phil. 187 ; Wood v. Wood, id. 357 ; Trimlestown v. D'Alton, 1 Dow &, C. 85) ; and there is no possible reason for not exercising the same power where part of the will may be supposed to be the result of undue influence. If the jurisdiction is conceded, the reason for exercising it in one case is as strong as in the other. I shall therefore admit to pro- 33 514 UNDUE INFLUENCE AND FRAUD. bate that part of the will which is free from imputation, being all except the residuary legacy and the appointment of Mr. Cox as executor. I had some little doubts as to the first legacy to found the scholarship, but the benefit is so little of a personal character that I think it may be allowed to stand, particularly as, according to the testimony of Mrs. Knapp, the decedent showed a favorable inclination towards such institutions. The management of the funds is vested in a body in which Mr. Cox has no more interest than any other person, and the mere power of selecting the indi- vidual to be educated is too remote to come under the rule I have laid down. We have not deemed it important to place a large number of cases under this head, since there are a considerable number of cases under the several sub- divisions of undue influence, which bear more or less upon this particular one. It is familiar law, that any dealing which persons may have with those sustaining dependent relations towards them, are always viewed with suspicion, and are required to be fully explained by positive testimony, or they will not be upheld by the courts. Hence in the dealings of guardians with their wards, even after the relation is terminated, or trustees with their cestuis que. trust, attorneys with their clients, or parents with children, or husbands with wives, and many other relations, where the law regards them as being unequal as to independence, there must be proof of justice and equality which would not be required where there was perfect independence between the parties. But this rule, will not apply in its full force with reference to wills. There the testator is expected to leave his estate to his near and dear relations and friends ; and the fact that he does so will create no suspicion, which is required to be explainedin the first instance, and from the mere fact of the relation of the parties, except, perhaps, where the ward leaves the estate to the guardian. In Boyse v. Kossborough, 6 H. of L. Cases, 49, Lord Cranworth says, that in the ease of wills, "undue influence cannot be presumed," from the mere fact that the person benefited possessed an influence which he might have exercised unduly. And Parfitt v Lawless, 21 W. R. 200, s. c. Law Rep. 2 P. & D. 462, recognizes the same rule in regard to wills, even in the case of a will in favor of the confessor of the tes- tatrix, while at the same time declaring that a deed executed under the same circumstances could not have been supported, without the grantee showing afiirmatively that he exercised no undue influence in procuring its execution. Unless there is something in the character of the will requiring explanation, those who allege undue influence will be required to prove it, as we have before shown. But where the will is drawn up in favor of one sustaining a commanding or superior relation towards the testator, and confers upon such one an unnatural or unreasonable advantage over the other beneficiaries or those entitled to be such under the will, it will require explanation. 1 Redf. Wills, § 38, pi. 12, n. 16, p. 616 ; Boyd v. Boyd, 66 Penn. St. 283. EFFECT OF TESTATOR BEING UNDER GUARDIANSHIP. 515 VIII. The Effect op the Testator being under Guardianship, AND THE Will containing Bequests in Favor op the Guar- dian. Breed v. Pratt, 18 Pickering's Massachusetts Reports, 115. 1836. One under guardianship, as non compos, is prima facie incompetent to make a will ; but if he be really of sound disposing mind and memory, he may make a yalid will. Where such a one gives a legacy to his guardian, and appoints him executor, it is competent for the guardian to show the existence of testamentary capacitj' ; but the proof must show beyond reasonable doubt that the testator had both such testamentary capacity, and such freedom of will and action, as are requisite to render a will valid. The opinion of the court was delivered by — Shaw, C. J. 1. In regard to the first exception, the court are of opinion that the fact that the testator was under guardianship at the time of the execution of the will, even had there been no excep- tion to the legality and validity of the letters of guardianship, did not de facto disqualify him from making a valid will, nor does it operate as conclusive evidence of insanity. This point is now to be considered as settled by authority. Stone v. Damon, 12 Mass. R. 488. Were this a new question, it might perhaps deserve more consid- eration. The reasons in favor of adopting the rule, as assigned in the case cited, are certainly very strong ; a consideration the other way is, that to many purposes, a person under guardianship as non compos cannot be regarded as acting suo jure, but his person and actions are to some extent under the control of others. But after all, this rather bears upon the question of fact, open to proof in each particular case, whether the testator did, in such particular instance, act freely and voluntarily, and had sufficient mental ability and intellectual power to perform the act. It is an act manifestly distinguishable from contracts and other acts to be done inter vivos, and involves no conflict of authority with the guardian in this respect, because the will cannot operate to any purpose till the death of the testator, and by that same event the authority of the guardian is determined. 516 UNDUE INFLUENCE AND FRAUD. 2. The court are also of opinion that the executor in the present case is not estopped, by the fact of his guardianship, from showing that the testator, at the time of making his will, was of sound and disposing mind and memory. 1. Because the guardianship was ipso facto void in law, for want of notice to the ward (Chase v. Hathaway, 14 Mass. R. 222 ; Hathaway v. Clark, 5 Pick. R. 490) ; for, although the guardian might be estopped in pais, by acts done as guardian, to deny the validity and sufficiency of such acts, it would not be on the ground of the void letter of guardianship, but on the ground of his having acted as such guardian. And 2. Because in this suit the executor claims to prove the will, not merely to establish his own bequests, but to establish the validity of the will, in order to give effect to the claims of all other persons having beneficial interests under it. In oifering the will he acts as trustee for all persons interested. Though the executor has by far the largest interest in the present will, yet the same rule must apply as if his interest were a minor one. As an express, positive, and legal incapacity, the fact of the existence of the guardianship, had it been valid, did not disable the testator from making a will, nor did it operate by way of estoppel upon the guardian himself, to prohibit him, in the capacity of executor, from proving it. As evidence of actual influence, the void guardianship, understood and believed to exist, both by the testator and the executor, and to constitute the relation of guardian and ward between them, is to be considered as having the same effect as if it were in all respects valid. 3. The relation of guardian and ward, inasmuch as it places the person and property of the ward in the custody of the guardian, when a will is made beneficial to the guardian, is to be taken as strong evidence bearing upon the point of the mental capacity of the testator and his freedom of will and of action ; but it is to be taken as evidence, which may be met and controlled by counter proofs. It is prima facie evidence of insanity, and incapacity to make a will, and therefore it is incumbent on those who would establish the will to show beyond reasonable doubt that the testator had both such mental capacity, and such freedom of will and action, as are requisite to render a will legally valid. Upon the questions of fact, the Chief Justice proceeded to examine and state the evidence, and pronounced the opinion of the court establishing the will. HOW PROVED. 517 In the foregoing opinion Chief Justice Sliaw, it will be noted, expressly re- quires of the guardian to prove, beyond reasonable doubt, that no improper influence was brought to bear upon the ward to induce him to give a legacy to his guardian. And the same rule will apply to all dependent relations, where unequal wills are made in favor of those upon whom the testators are dependent. And it will make no difference whether the dependence grows out of some natural relation, as that of parent and child, or some legal relation, as trustee and cestui que trust, or the relation of dependence resulting from ill health, extreme old age, or any other infirmity. In all these cases, where the dependant is allowed to make a will unequally in favor of the superior, it will be incumbent upon such superior to show, by positive testimony, beyond reasonable doubt, that no improper influence was brought to bear upon the testator. Other judges may express the rule differently, but the import is much the same in all ; the court must be clearly satisfied that the will was made with entire freedom and volun- tary choice on the part of the testator. Greene, C. J., in Jenckes v. Probate Court, 2 R. I. 255, 263, said: — " The remaining objection to the will is, that it was obtained by undue influ- ence. The testatrix was in feeble health at the time of making her will ; she had no near relation who could take care of her, her sisters being her nearest rela- tions. FoUett was her guardian ; she was living in his family. Nothing is given to her sister, Mrs. Phetteplace ; and all her real estate, which composed the bulk of her property, is given to her maiden sisters for life, then to Follett for life, and then to his son in fee. These are undoubtedly facts which require careful examination, in connection with the circumstances attending them. " When first applied to, to become the guardian of the testatrix, Follett de- clined ; and when she removed to his house, it was because Mrs. Sayles could no longer entertain her in her family, and not because Follett sought to get her under his own roof. It does not appear from the testimony of the scribe who drew the will and was a subscribing witness, or from the testimony of the other subscribing witness, or from any other testimony, that Follett exercised any influ- ence over her. " He had been brought up in her father's family with her, and she said he always had been to her as a brother. " Then as to the provisions of the will : Mrs. Phetteplace had no children, and there was no probability she ever would have any, and her other sisters were unmarried. So far as blood was concerned, there was no motive in giving the estate in fee to any of her sisters. So far as support was concerned, Mrs. Phetteplace had a husband to provide for her. All the personal property is given to the three sisters absolutely, and the real estate for life to the two maiden sisters. This, with what they had of their own, she thought suflficient to maintain them. " Under the circumstances, we see no evidence of undue influence by Follett in the provisions for him and his son after the death of her sisters. The son was named for his father, and she seems to have entertained towards the father and son the kind feelings which their conduct deserved at her hands. " We think the decree of the court below should be affirmed." 518 UNDUE INFLUENCE AND FRAUD. IX. The Effect of inducing the Testator to destroy his Will by Improper InfluenceSt Batton V. Watson, 13 Georgia Reports, 63. 185.3. Undue influence exercised upon a testator, to compel or induce him to destroy an existing valid will, renders the destruction inoperative, as a revocation. The rule as to the extent of such influence defined below. Where this result is brought about by the denunciations and threats of one interested, on behalf of those not provided for in the will, as he thinks they should be, those who propound the will for probate are not obliged to take the testimony of such person, but may rely upon his declarations connected with his acts, in procuring the destruction of the will instead. If a testator, near the time of his death, while in a very enfeebled state both of body and mind, is induced, by fear, or favor or affection, or any other cause unduly exercised, to destroy his will, and such undue influences operated as a pressure and restraint upon the deceased, under the circumstances in which he was placed, to take away his free and voluntary mind and will, the testament is not thereby revoked, but remains in force, as before. The opiuioii of the court was delivered by — Warner, J. 1. The first assignment of error in this record which we are called on to review is, the admission of the evidence of Alexander Everett to the jury, as to the conversation he had with Dr. Pattilo the evening the will was destroyed. The court admitted the evidence on the ground that it was part of the res gestce, and, in our judgment, properly admitted it. This species of evidence is not admissible, as a general rule, unless it grows out of the principal transaction, illustrates its character, and is contemporaneous with it. Carter and Wife v. Buchannon, 3 Kelly, 517 ; 1 Greenleafs Ev. § 108. The principal transaction here is the destruction of Coalson's will by the undue influence and interference of Dr. Pattilo. The will was executed on the 25th of June, and on the next day after the will had been sent for, but before it is brought to Coalson, the witness hears loud and boisterous talking in the sick-room ; recognizes the voice to be that of Pattilo, but cannot understand what is said. Shortly after- wards witness went into the sick-room, and Dr. Pattilo invited him into the parlor, when he stated " he just had learned that Coalson had made a will, cutting off Sarah ; that it was not such IN PROCITRING THE DESTRUCTION OP WILL. 519 a will as he had expected ; that he, Pattilo, would not submit to it ; that he would resist it at the threshold ; that he would make Sarah sign away what was given to her ; and would take' her home and support her as he had done ; that she should not have a dime of the property, and that he had said that much to Jack. Dr. Pattilo seemed excited. " This conversation was intermediate the time the will had been sent for to Tooke and its return to Coaison the same evening. When Tooke brought the will to Coaison, it was destroyed by him. This evidence tends to illustrate what took place in the sick-room when the witness heard the loud and bois- terous talking, and was made during the time the will was sent for and its return : therefore a part of the transaction which finally resulted in the destruction of the will. These declarations also went to show the motive by which the party charged with having exerted the undue means to procure the destruction of the will was influenced. It was urged on the argument that Pattilo was a competent witness to prove the same facts to which Everett testi- fied. The reply is, that Dr. Pattilo is the principal party charged with having procured the destruction of this will, and those who are attempting to set it up are not obliged to rely upon the testi- mony of the principal actor in the supposed fraud. Bridge v. Eggleston, 14 Mass. Rep. 249 ; Davis v. Spooner, 3 Pickering's Rep. 287 ; Allen v. Duncan, 11 Pickering's Rep. 310. There was no error in admitting the copy will to be read in evi- dence, on the testimony of Tooke and Shine, as to its being a sub- stantial copy of the one destroyed. 2. We find no error in the charge of the court to the juiy. The charge assumes the law to be that if the testator was unduly in- duced by fear, favor, or affection, or any other cause unduly exer- cised to destroy his will, and such undue influences operated as a pressure and restraint upon the deceased, under the circumstances in which he was placed at the time, so as to take away his free and voluntary mind and will, and so continued up to his death, then the will ought to be set up. The plaintiffs in error certainly liave no just ground of complaint against this charge, for the court, in our judgment, put the case to the jury in a pretty strong point of view for them. Although the jury set up the will by their verdict, yet we think it is extremely doubtful whether the deceased did not intend, after all, to die intestate ; but it was the exclusive province of the jury to pass upon the evidence submitted 520 UNDUE INFLUENCE AND FRAUD. to them, and,. having done so, we have no legal power to interfere with their verdict under the circumstances disclosed by the record in this case. We have inserted the foregoing case because it presents the question of undue influence in regard to the testamentary act in a light different from that in which it ordinarily arises, and shows the practice of the coui-ts to establish wills, even after their voluntary destruction by the testator, where the. act of destruction is not freely or understandingly done. See note, ante, pp. 214-218. The charge of Chief Justice Clayton, of Delaware, an eminent judge, upon the questions of mental capacity, undue influence, and the evidence requisite to show in the testator knowledge of the contents of his will, are so brief and pertinent, that we here adopt them. Chandler v. Ferris, 1 Harrington, 454, 464. The will was attempted to be set aside mainly on the ground of its peculiar character in giving a large residue of the estate for the founding of a manual labor school or college, for the education of colored males in the State of Delaware ; and, also, that being of an excitable temperament, and exceptionally interested in the object of the bequest, undue influences had been brought to bear upon his mind to such an extent as to deprive him of its free exercise. The Chief Justice charged the jury " that if they were of opinion from the evidence that the testator was capable of exercising thought and judgment and reflection ; if he knew what he was about, and had memory and judgment, his will could not be invalidated on the ground of insanity. Neither could it be set aside on the ground of undue influence, unless such influence amounted to a degree of constraint such as the testator was too weak to resist ; such as deprived him of his free agency, and prevented him from doing as he pleased with his property. Neither advice, nor argument, nor persuasions, would vitiate a will made freely and from conviction, though such will might not have been made but for such advice and persuasion. Another and more material ground of objection to the will is a supposed discrepancy between it and the instructions on which it was founded, and from which it was drawn. If the jury are of opinion that these differences exist to such an extent as to make the will essentially different from the instructions, they must then judge from the evidence whether these deviations were made with the knowledge and consent of the testator. If they were not made known to him, if the will was not read over, or its contents and variations from the instructions otherwise explained to him, then this is not his will; but if he knew of and approved the alterations, he adopted them by the execution of the will, and the same ought to be confirmed." HOW PAR WILL MAY BE UPHELD IN PART. 521 X. The Effect op Fraud or Undue Influence in procuring THE Will, or any Portion op it, and how par it extends in avoiding the Will. Florey v. Florey, 24 Alabama Reports, 241. 1854. Fraud or undue influence in the procurement of a particular legacy will not avoid the other portions of the will, to which it does not extend. But where it extends to the very act of making the will, the whole is invalid. GoLDTHWAiTE, J., thus defines the law upon this point. " On the trial, the plaintiffs in error requested the court to charge ' that, if the jury believed from the evidence that undue influence was ex- ercised on the part of any one of the legatees, and not as to the others, the will was void only as to those who participated in the fraud ; ' which was refused. We were at first of opinion that this charge should have been given, but more mature reflection has satisfied us that there was no error in refusing it. We agree that where a legacy has been given through undue in- fluence, it does not necessarily have the efifect of rendering the whole will void. It is in accordance with the dictates of reason, and the principles of natural justice, that fraud or undue impor- tunity on the part of one legatee should not affect the other legacies, which are the result of the free-will of the testator. To this extent the authorities go. Swinburne on Wills, 884 ; Trimlestown v. D'Alton, 1 Dow &, C. 85. It is, however, equally clear that if the fraud or undue influence on the part of one of the legatees affects tlie whole will, then no part of it can stand. 1 Will. Ex. 39 ; Swinb. pt. 7, § 4, pi. 1. The charge, as requested, asserts the proposition tliat, although the entire instrument may have been the result of undue influence on the part of one of the legatees, it is good as to all but the parties wlio exerted the in- fluence. This proposition, as we have seen, cannot be sustained." This last is not a subject in regard to which any great question will ordinarily arise, since, more commonly, the fraud or undue influence either extends to the entire act of making the will, or else the one-sided character of the irregular bequests have so far deranged the distribution of the estate that we cannot regard the other bequests as fairly expressing the will of the testator, except upon the condition that the whole will, as made, shall be upheld. But where 622 UNDUE INFLUENCE AND FRAUD. a case occurs, that the effect of the fraud or undue influence can be clearly- restricted to a portion of the will, and the remainder may be upheld, as itself expressing the will of the testator, there will be no difliculty in so holding. There is no subject connected with the law of wills, as before suggested, where it is more difficult to give clear and exact definitions, than in regard to what the law denominates undue influence in the procurement of wills. The word " undue," as used in this connection, implies something more than that it ia in bad taste, or carried beyond the limits where a delicate person would naturally have abstained. It has reference both to the conduct of the person exercising it, and to the result produced. It must have been wrongly intended, and at the same time have produced an unjust result. For if one, by mere kindness and devotion to the testator, from a sense of duty, without the remotest purpose or desire of pro- ducing any effect upon him, with reference to his will, should be the agency whereby he is induced, out of his own free-will, although it may be in fact weak and whimsical to do so, to give half or all his estate to such person, to the dis- inheriting of his own family, to that extent, it could scarcely be said to have been such an influence as will avoid the will. So, too, if the influence was ever so wrongly intended, yet if it fail of producing an unequal or unjust will, although it may have had the effect, through over-action, and the consequent disgust, of in- ducing the testator to'giye the party less than he had intended, or otherwise would have done, and so the will may be said to have been the offspring, to some extent, of the attempt to influence the testator, it is certainly not such a will as the law regards as obtained by undue influence. 1. It may be safely affirmed that in all cases where a will is produced by deception and fraud practised upon the testator, and is an unjust and unequal distribution of his property, and different from what he would otherwise have made, it cannot be upheld. It is the offspring of an influence which the law regards as vicious and undue. To this extent there is no conflict in the authori- ties. This fraud may be practised in an almost infinite variety of ways. As by misrepresenting the conduct and feelings of others towards the testator, or by depreciating their needs, independent of their own estate, or by suggesting, unfairly, their just expectations from others, as a reason why they need not be remembered by the testator. Indeed, it may safely be said, perhaps, that where undue influence is practised, as;it more commonly is, through misrepresentation or suppression of facts, it is presumptively done with the purpose of misleading the testator, and thus producing an unjust will, and is therefore fraudulent, and the will, to the extent it is thus produced, void. 2. But influence may be undue and unlawful where no deception or misrep- resentation of facts is resorted to. But to avoid the will, it must overcome free agency in the testator. This may be done by importunity, to such an extent as virtually to compel the testator to execute his will as desired, in order to buy peace on the part of the testator. Davis v. Calvert, 5 Gill & J. 802 ; s. c. ante, p. 420 ; Small V. Small, 4 Greenl.' 223 ; s. c. ante, p. 432. The difficulty in this class of cases is to distinguish the proper limits of persuasion from those which are improper, or, in the language of the law, undue. And the great difficulty in making this distinction wisely and justly, arises mainly from the different condi- tions in which the testator is liable to be at the time of making his will. OP WHAT CHABACTER IT MUST BE. 523 For if the testator is of entirely sound mind and memory, and is not placed in any position of dependence towards those making efforts to influence his testamentary dispositions, it is clear that they will not invalidate the will. It is in cases of this character that it has been so constantly held by the courts that the use of argument or persuasion to induce the testator to make a will in favor of the petitioner is entirely lawful, and will not affect the validity of the will. Miller V. Miller, 3 S. & R. 267 ; s. C. ante, p. 410; Small v. Small, 4 Greenl. 220; s. c. ante, p. 432 ; Denslow v. Moore, 2 Day, 12 ; Chandler v. Ferris, 1 Harring- ton, 464 ; s. c. ante, p. 620. And some of the cases have held that the influence to avoid a will must have been consciously exercised, with the view to produce an unlawful result. Martin v. Teague, 2 Speer, 268. And all the cases seem to agree that the influence must proceed to the degree of destroying free agency. O'Neal V. Farr, 1 Rich. 80-84; Tyson v. Tyson, 37 Md. 667. But this may be inferred from circumstances, as well as shown by direct testimony. Marvin v. Marvin, 3 Abbott's Appeal Cases, 192. But the declarations of the testator are not admissible to show undue influence, unless made at the time of executing the will, or so near as to form part of the res gestw. Hayes v. West, 37 Ind. 21. But declarations of the testator expressing dissatisfaction with his will are admissible to characterize the act of destroying it, although not made at the time of the act. Harring v. Allen, 25 Mich. 605. And the declarations of the executor, who is charged with having fraudulently procured the will, avowing the purposes for which he had induced the testator to make his will, are admissible, generally, as evidence for the contestants. Dennis v. Weeks, 46 Ga. 614. But we should regard the declarations in both of the last two cases as forming part of the transactions to which they refer. Declarations made at any time before, but calculated to characterize the transaction, may fairly be regarded as part of it, although made long before its consummation. But where the testator is in a dependent position, either from impaired health or advanced age, so as to be much at the mercy of those about him ; or from the relation in which he stands toward the principal beneficiaries, as a child, or wife, or ward, or orphan, or cestui que trust, there would seem to be imposed upon those sustaining the superior relation a positive duty not to say or do any thing which shall induce the testator to make an unequal or unfair will in their favor. Under such circumstances, it would seem that any influence which induces the testator to depart from the provisions which he would otherwise have made in his will on behalf of the solicitor, must always be viewed with great suspicion ; and where the will is in any considerable degree unequal or unjust, it will be regarded as the result of undue influence, and this will be expecially so where the will is either drawn up or dictated by the principal beneficiaries. Tyler v. Gardiner, 35 N. Y. 669; s. c. ante, p. 461 ; Kevill w. Kevill, Court of Appeals, Kentucky, 6 Am. Law Reg. n. s. 79 ; s. c. ante, p. 601 ; Taylor v. Wilburn, 20 Mo. 306 ; s. c. ante, p. 412 ; Marshall v. Flynn, 4 Jones' Law, 199 ; s. c. ante, p. 213 ; In re Welsh, 1 Redfield, Sur. 238 ; s. c. ante, p. 506. There is probably no subject so much discussed in trials, in regard to the validity of wills, as that of undue influence in their procurement. This naturally, and indeed almost always, occurs in connection with some attempt to impeach the full force of mental competency, since testators, in the full possession of mental strength and soundness, will seldom, if ever, be suspected of having 624 UNDUE INFLUENCE AND FRAUD. acted under undue and improper influences in making their wills. It will be noticed, therefore, in confirmation of the fact just stated, that a considerable number of the cases we have given in the first part of this volume, under the head of testamentary capacity, also discuss, often to a very large extent, the question of undue influence. Thornton v. Thornton, 39 Vt. 122; s. c. ante, p. 13 ; Beaubien v. Cicotte, 12 Mich. 459 ; s. c. ante, p. 67 ; Stackhouse «. Horton, 15 N. J. Ch. 202 ; s. c. ante, p. 110 ; Turner v. Cheesman, 15 N. J. Ch. 244 ; ante, p. 130 ; Moore v. Moore, 2 Bradf. Sur. 261 ; s. c. ante, p. 182 ; Cordrey v. Cordrey, 1 Houst. 269 ; s. c. ante, p. 198; Morris u. Stokes, 21 Ga. 652 ; s. c. ante, p. 200 ; DufBeld v. Morris, 2 Harring. 875 ; s. c. ante, p. 206 ; Trumbull u. Gibbons, 2 Zab. 117 ; s. c. ante, p. 251; Potts v. House, 6 Ga. 324; s. c. ante, p. 262; Collins v. Townley, 21 N. J. Ch. 853; 8. c. avte, p. 285; Clark V. Fisher, 1 Paige, 171 ; s. c. ante, p. 287 ; Harrel v. Harrel, 1 Duvali, 203 ; s. c. ante, p. 293 ; Munday u. Taylor, 7 Bush, 491 ; s. c. ante, p. 296 ; Ross V. Christmau, 1 Iredell Law, 209 ; s. c. ante, p. 297 ; Seehrest v. Edwards, 4 Met. (Ky.) 163 ; s. c. ante, p. 299 ; Robinson v. Adams, Supreme Court of Maine, 8. c. ante, p. 367. And there are some other cases in this volume besides the fore- going, and those under the particular head of undub influence, where the subject is more or less discussed ; so that probably a majority of all the cases in this volume will be found to contain something upon that subject. The profession will require no apology on this account, since, as before said, there are no ques- tions more diflicult, or that so frequently arise on trials in regard to the validity of wills. Coffin V. Coffin, 23 N. Y. 9, post. PART III. ADMISSION OF OEAL TESTIMONY TO EX- PLAIN OR AID IN THE CONSTRUCTION OF WILLS. PAET III. ADMISSION OF ORAL TESTIMONY TO EX- PLAIN OR AID IN THE CONSTRUCTION OF WILLS. I. The Extent to which Extrinsic or Oral Evidence is ADMISSIBLE IN THE CaSE OP WiLLS. Mann v. Executors of Mann, Court of Chancery, 1 Johnson's Chancery Reports, 231. 1814. Parol evidence cannot be admitted to supply or contradict, enlarge or vary, the words of a will, nor to explain the intention of the testator, except in two specified cases : 1. Where there is a latent ambiguity, arising dehors the will, as to the person or subject meant to be described ; and 2. To rebut a result- ing trust. Construction of the word " moneys " in a bequest of all the rest, residue, and re- mainder of the moneys belonging to the estate of the testator at the time of his decease. Opinion by — Kent, Chancellor. The question here is, whether, under the bequest of " all the rest, residue, and remainder of the moneys be- longing to my estate at the time of my decease," the widow be enti- tled to any thing more tlian the cash which the testator left at his death ; or whether, as the defendants have contended, she be enti- tled also to the bonds, mortgages, and notes ? This question has led to another, and that is, whether the parol evidence offered be admissible to explain the testator's meaning ? It is a well-settled rule, that seems not to stand in need of much proof or illustration, for it runs through all the books, from Che- ney's Case (5 Co. 68) down to this day, that parol evidence cannot 528 EFFECT OF EXTRINSIC EVIDENCE be admitted to supply or contradict, enlarge or vary, the words of a will, nor to explain the intention of the testator, except in two specified cases: 1. Where there is a latent ambiguity, arising dehors the will, as to the person or subject meant to be described ; and, 2. To rebut a resulting trust. All the cases profess to proceed on one or the other of those grounds. Hodgson v. Hodgson, Free, in Ch. 229 ; 2 Vern. 593 ; Pendleton v. Grant, 2 Vern. 517 ; Har- ris V. Bishop of Lincoln, 2 P. Wms. 135 ; Beaumont v. Fell, 2 P. Wms. 140 ; Hampshire v. Peirce, 2 Ves. 216 ; Urich v. Litchfield, 2 Atk. 372 ; Lord Walpole v. Lord Cholmondeley, 7 Term Eep. 138 ; Lord Uldon, in Druce v. Denison, 6 Ves. 397. If there be a mistake in the name of the legatee, or there be two legatees of the same name, or if the testator bequeath a particular chattel, and there be two or more of tiie same description, or if, from any other misdescription of the estate, or of the person, there arises a latent ambiguity, it may and must be explained by parol proof, or the will would fall to the ground for uncertainty. When a latent ambiguity is produced, according to the language of the courts (Lord Thurlow, in 1 Ves. Jr. 259, 260, 415, and Lord Kenyan, in 7 Term Rep. 148), in the only way in which it can be produced, viz., by parol proof, it must be dissolved in the same way ; and there is no case for admitting parol evidence to show the intention upon a latent ambiguity on the face of the will. They are all cases of latent am- biguity ; and the objection to supply the imperfection of a written will, by the testimony of witnesses, is founded on the soundest principles of law and policy. " It would be full of great incon- venience," say the justices, in Cheney's Case, " that none should know, by tlie written words of a will, wliat construction to make, or advice to give, but that it should be controlled by collateral aver- ments out of the will." And if collateral averments be admitted, to use the words of Sir Mattheiv Sale, in Fry and Wife v. Porter, 1 Mod. 310, " how can there be any certainty ? A will may be any tiling, every thing, nothing. The statute appointed the will to be in writing, to make a certainty ; and shall we admit collateral aver- ments and proofs, and make it utterly uncertain ? " In a still later case (3 P. Wms. 354), Lord Talbot observed, that if we admit parol proof, " then the witnesses, and not the testator, would make the will ; " and he spoke with equal decision in tlie case of Brown v. Selwin, Cases temp. Talbot, 240, though the parol proof in that case would have left no doubt of the intention of the testator being IN THE CONSTRUCTION OP WILLS. 629 contrary to the legal operation of the will. This case comes witli the more weight, since the decree was affirmed in the House of Lords (4 Bro. P. C. 179), who would i)ot suffer the parol evidence to be read, nor even the answer as to that matter. Perhaps a solitary dictum may occasionally be met with (for there are volumes of cases on the subject of wills, immensus aliarum super alias cumulus^ in favor of the admission of parol proof, to explain an ambiguity of uncertainty appearing on the face of a will ; though Lord Thurlow says there is no such case. If there be, we may venture to say it is no authority. If a will be uncertain, or unintelligible on its face, it is as if no will had been made ; quod voluit non dixit. We ought not to forget that no ver- bal or nuncupative will is good, Within the Statute of Frauds, ex- cept under special circumstances ; and that no will concerning any personal estate (and of that we are now speaking) shall be revoked or altered, by any words, or will, by word of mouth only. Laws, Sess. 36, c. 23, §§ 14-16. The only apology for parol proof, iu any case, is the necessity of the thing, because the ambiguity is so com- plete as to elude all interpretation, and would destroy the devise altogether, unless explained. But here is no such difficulty, and no such necessity for resorting to parol proof. The word moneys will apply, beyond all doubt, to the cash which the testator left at his death ; and the bequest has, at all events, a certain and definite subject on which it can operate. In the late case of Doe v. Oxeuden, 3 Taunt. Rep. 147, the Court of Common Pleas considered this fact as a very material circumstance, and one which made the case to differ from all others on the subject of explaining a will by parol proof; because, in all cases that had been before, the evidence was admitted to explain a part which, without such explanation, could have had no operation. But in that case, as there was sufficient to satisfy the devise according to the ordinary meaning of the descrip- tion, collateral evidence, to show that the testator meant to use tha description in a more extensive sense, was rejected. Tliere was a similar decision in Doe v. Brown, 11 East, 441, and the two cases are strong in respect to this point. My conclusion is, that the parol proof cannot be received or per- mitted to enter into the consideration of the case ; for it will readily be admitted, that to serve tlie particular purpose, or meet the sup- posed hardship, of an individual case, we ought not to break in upon the established principles of law. The observation of Lord 34 630 EFFECT OP EXTRINSIC EVIDENCE Talbot, in one of the cases referred to, contains the true and wise doctrine on this subject, — that it is letter to suffer a particular mis- chief than a general inconvenience. The only question then, in this cause, is on the construction of all the will itself. I do not perceive, from a perusal of the will, any reason for con- struing the word moneys beyond its popular and legal meaning. It means gold and silver, or the lawful circulating medium of the country. Co. Litt. 207 a. It may be extended to bank notes, when they are known and approved of, and used in the market, as cash. Perhaps it would be proper to extend the term to money deposited in bank, for that is cash, and considered and used as cash placed there for safe-keepings in preference to the chest of the owner. It was mentioned by the counsel, in the recent English case of Hotham v. Sutton, 15 Vesey, 319, that, under a bequest of " money," money and bank-notes, in the possession of the testator, or at his banker's, will pass, and nothing else ; and they said it had always been so considered ; and. the Ciiancellor observed that stock never passed by the word " money." Beyond these bounds the word cannot be extended, unless it be accompanied with explanations showing that the testator alluded to other property than his cash, and defining that property as money at interest, on bond and mort- gage, or money in the public funds. If he uses the word absolutely, without any such accompanying qualification or reference, it can- not be construed beyond its usual and legal signification, without destroying all certainty and precision in language, and involving the meaning of the will in great uncertainty. The difficulty would be to know what precise check to give to the force of the term, after we have once moved it from its seat ; vires aoquirit eundo. Shall it be confined to any particular species or description of choses in action ? or shall it embrace, promiscuously, every species of debt and security, — book debts, notes, bonds, mortgages, judgments, turnpike, manufacturing, insurance, bank, and national stock ? or must we go into a difficult inquiry to ascertain which of these securities was taken for cash lent, and which for goods or lands sold, or services rendered, and which as a compensation for torts or other causes of action ? It appears to me that it would contra- vene the rules of law and the policy of the statute, and be of danger- ous consequence, to depart from the common and fixed meaning of the word " moneys," and which meaning the testator must be pre- IN THE CONSTRUCTION OP WILLS. 531 sumed to have xinderstood ; especially as the bequest will still be effectual and productive. The cases of Rose v. Bartlett, Cro. C. 293, and of Day v. Trig, 1 P. Wms. 286, may be cited to show that, where a will can have effect, words are not to be strained to enlarge the will ; and that a lease for years will pass, under a devise of all my lands, if the testator had no fee-simple estate ; and this, in order to prevent the devise from being void ; but if he had an estate in fee, the chattel interest will not pass. The testator, in the present case, understood how to explain the word " moneys," when he meant to designate other property than his cash in hand. He uses it, re- peatedly, in the subsequent parts of the will, but it is always with a clear and certain reference to the subject-matter to which it is to be applied ; as when he discharges his brother Michael " from the payment of all moneys which he shall owe me at my decease ; " and when he bequeaths to tlie children of his brother the remainder of his estate, " or the moneys arising from the sale thereof." There is a settled distinction, on this subject of the construction of wills, between cash or money, and choses in action; and this increases the difficulty of the attempt which has been made to con- found them. Thus, cash will pass by a bequest of movables ; but the better opinion, according to Godolphin (Orphan's Legacy, p. 417, § 9), is that money at interest will not so pass, because it is a debt, and not cash. So, a devise of goods and chattels, in such a place, will not include a bond being there, as it has no locality ; but it will include cash, and also bank-notes, because tliey are considered quasi cash. Chapman v. Hart, 1 Ves. Sen. 271 ; Moore v. Moore, 1 Bro. 127 ; Fleming v. Brook, 1 Schoale & Lefroy, 318. Nor is there any reason to infer from the will that due provision is not made for the widow, witliout permitting her to sweep away, under the denominatiou of money, all the notes, bonds, and mort- gages belonging to the testator. The testator gives to her, in fee, his dwelling-house and six acres of land lying on the Bowery road, in the city of New York. He also gives to her, in fee, two other lots in the same place, containing an acre and a half; and he further gives her all his household furniture, horses, farming-stock, &c. The expression of all the rest, residue, and remainder of the moneys, &c., belonging to his estate, leaves tlie question- of construction pre- cisely the same as if those words had not been used, for the ques- tion still occurs, what were his moneys? The words rest, residue, &c., seem to be without use or meaning, as there used ; for there 532 EFFECT OP EXTRINSIC EVIDENCE were no moneys previously alluded to, except the 1,000 dollars be- queathed to his niece, Mary ; and that sum was to be paid, at large, out of his personal estate ; and it is not contended that the word " moneys " can have such an extensive sense. The result of my opinion is that the executors must account to the plaintiffs for the bonds, mortgages, and notes left by the testa- tor ; and a reference must be made to a Master, to take and state an account between the parties, in which the defendants must be allowed for whatever payment and expenses are justly chargeable to the property, and be chargeable with all the securities aforesaid ; and the question of costs, and all other questions, to be reserved until the coming in of the report. Same Case, Court of Errors, 14 Johnson's New York Reports, 9. 1816. Opinion by — Thompson, C. J. The decision now to be made does not depend so much upon ascertaining and defining the rules and principles of law involved in the discussion, as in a just and correct appli- cation of those rules and principles to the case before us. That the intention of the testator is to be sought after, and carried into effect ; that such intention is to be collected from the will itself, unaided by any extrinsic evidence, except in the case of a latent ambiguity, or to rebut a resulting trust ; and that no parol evidence is admissible, to contradict, enlarge, or vary the words of a will, — are general" rules so well settled, that they may be assumed as elementary principles of law. A correct application of them to this case will, in my judgment, lead to an aiBrmance of the decree. The particular clause in the will of David Mann, upon which the question turns, is in these woi-ds : " I do give and bequeatli unto my said wife, Mary Mann, all the rest, residue, and remainder of the moneys belonging to my estate, at the time of my decease." Whether, under this bequest, Mary Mann is entitled to all the bonds, mortgages, notes, and chases in action belonging to the estate of the testator, or only to the cash left, is the question be- tween the parties. It was not pretended by the appellants' counsel that there was any ambiguity, or uncertainty, in the term moneys. IN THE CONSTRUCTION OP WILLS. 533 Indeed, such a pretence would have been utterly inconsistent with the claim to let in parol evidence ; for if there was any such uncer- tainty, it would have been a patent ambiguity, which is confessedly not explainable by extrinsic evidence. But it was contended that the qualifications accompanying, and superadded to, the term moneys, either showed that the testator intended to use it in a sense different from the ordinary or legal acceptation, or referred to a fund other than that created by his cash. In examining into the intention of a testator, iu any particular clause of his will, it is, no doubt, proper to gather all the light that can be thrown upon it, by comparing and explaining it with other parts of the will, so as to make the whole consistent, and all the provisions, if possible, to harmonize together. But when we are collecting the intention of the testator from the will itself, we ought to guard against the influence which the extrinsic evi- dence offered may have upon the mind, if such evidence was inadmissible. In courts of equity, those parol proofs are generally permitted to be read without prejudice, subject to all just excep- tions. But at law, where the jury might, and probably would be, influenced by the admission of improper evidence, the production of it will not be allowed. Prec- in Ch. 104. Let us, then, look at the will per se, as if no parol evidence had been offered, and see whether a doubt could exist as to the construction of this will. If we had never heard that the testator had money out at interest upon bonds and mortgages, could it enter into the mind of any man, upon looking at the clause in the will under consideration, that moneys meant any thing more than cash, or that it would extend to choses in action? It has, however, been said that the words rest, residue, and remainder are relative terms, referring to an antecedent ; and which antecedent must have been a fund, not coming within the ordinary acceptation of the term moneys. That they are relative terms is undoubtedly true ; but the conclusion attempted to be drawn from this by no means follows. The testa- tor, previous to the clause in question, had directed all his just debts and funeral charges to be paid, and had bequeathed to his niece, Mary Cornell, one thousand dollars. His debts and funeral charges are not directed to be paid out of any particular fund. The moneys left by him would be the fit and proper fund to be resorted to for the purpose, and the one most likely to be in view by the testator, especially as the funeral expenses would require an 534 EFFECT OF EXTRINSIC EVIDENCE immediate expenditure. The words "rest, residue, and remain- der " are therefore satisfied by referring tliem to the money as the fund. But the legacy to Mary Cornell is expressly directed to be paid out of his personal estate. And it would be a very strained interpretation to say that the testator used the words personal estate. in the same sense as the terms moneys ; and, unless he did, this legacy could not have been intended to be charged upon the money fund. His charging this legacy upon the personal estate, generally, shows that when he used the word moneys he meant and intended to use it in its usual and ordinary acceptation. Suppose the tes- tator had left cash sufficient to pay this legacy, over and above his debts and funeral expenses, and had left other personal estate sufiicient to pay the legacy, can there be a doubt but that the money would have been considered as a specific bequest, and the legacy chargeable upon the other part of the personal estate? The words " rest, residue, and remainder" are therefore satisfied by referring them to his cash, the natural fund for payment of debts and funeral expenses, where no specific directions are given. There is nothing whatever in the will requiring, or even affording, a rational conclusion that the legacy to Mary Cornell was intended to be charged upon the cash fund. . Nor has the testator, in any part of his will, used the term moneys in any other than its ordinary and appropriate sense. Thus, in relation to his demand against his brother Michael, he discharges him from the payment of all moneys which he shall owe him at the time of his decease. This necessarily, and unavoidably, refers to an outstanding debt. When we speak of the payment of money which one owes, it is impossible to misunderstand, or to give any other interpretation to the expres- sion, than as having reference to a debt due. So, where he speaks of the moneys arising from the sale of his real and personal prop- erty, he uses the term in its ordinary acceptation. Again, he authorizes his executors to sell his real estate for the most moneys that can be got for the same, which is as apt and appropriate a use of the term as could be made. These are all the instances in which the word moneys occurs in the will, and in no one of them is there an ambiguous or unusual meaning attached to it ; clearly showing that the testator used the term understandingly, and not in any doubtful sense. If so, it is utterly inconsistent with the sound and settled rules of interpretation to give to this term a broader operation than its legal or popular meaning requires. IN THE CONSTRUCTION OP WILLS. 535 fT'lt was urged, however, in argument, that the qualification super- added to the term moneys, na,me\y, " belonging to my estate" sliows that the testator intended to use it in a more enlarged sense than its ordinary acceptation ; and showing, also, a misdescription of the fund referred to. If the description was inapplicable to the subject or thing bequeathed, there would be force in the argument ; but that is not the fact. It is just as fit and proper to say the moneys (meaning cash) belonging to my estate as to say the bonds and mortgages belonging to my estate. The description is- equally applicable to both. The one belonged to his estate as much as the other. Indeed, if the description was false and inapplicable to the subject, the settled rule of construction requires a rejection of the description, when the thing devised or bequeathed is cer- tain. 11 Johns. Rep. 218. But there is no necessity of applying this rule. There is no misdescription : the moneys did belong to his estate ; so that, although the description may be surplusage, it is true in point of fact. Is it not reasonable to presume that, if the testator had intended by this residuary bequest any thing more than his cash, he would have used some more appropriate lan- guage ? The whole will shows that he understood the force and meaning of terms ; and if he had intended, when he made his will, to extend this bequest to his bonds, mortgages, notes, and choses in action, it is inconceivable why he did' not adopt some expression indicating such intention, as, " the moneys due me," " my moneys at interest," or the like : such would have been the natural and obvious phraseology. There is no force in the criticisms which have been made upon the word moneys, as being of more extensive signification than money. In the statute book, and in common parlance, they are used indiscriminately, as conveying the same sense and meaning. It was very mucli pressed on the argument that, unless the word moneys was extended beyond the cash fund, tiiere would be a failure of the bequest. And, in order to give much force to this argument, it was assumed that the 1,000 dollars legacy to Mary Cornell was charged upon the fund, of which the testator gave his widow the rest, residue, and remainder. But I have shown that that is not the case. The legacy to Mary Cornell is expressly charged upon the personal estate generally. It is true, tliat where there is a specific legacy charged upon a fund of any way doubtful description, that construction will be most favored which will prevent a total failure 536 EFFECT OP EXTRINSIC EVIDENCE of the bequest. This is the leading principle which runs through the cases cited upon this point on the argument. But the princi- ple does not apply here in its full force. There is no specific sum bequeathed to the widow by this clause in the will, and there is nothing from which it can be determined how much he intended to give her. Where there is a specific sum named, the extent of the testator's bounty is defined, and his will known, and it is the duty of courts to search for a construction that will carry it into effect. A general residuary clause is very often thrown into a will without much calculation as to its being very beneficial. It is certainly a pretty far-fetched inference that this was to be the fund for the support and maintenance of the widow. I can dis- cover nothing in the will intimating such an object particularly by this clause, especially as such very ample provision had been made for her in the clauses immediately preceding. There is no more reason to conclude that the moneys were intended for her support, than for the purpose of building houses upon the lots he had given her. If all his outstanding debts passed under this clause to his widow, then she would take all the personal estate ; for the specific legacies to her of his household furniture, farming stock, &c., swallowed up all the residue of his personal estate ; and the subse- quent clause, giving to the children of his three brothers the rest, residue, and remainder of his estates, real and personal, would, so far as respected the personal estate, be nugatory. It is not reason- able to presume that, if he had disposed of all his personal estate before, he would have again included it in this devise, and men- tioned so emphatically as one of his estates. It is one of the settled rules in the construction of wills, so to interpret each part as to give effect to the whole, when it can be done, which would not be the case if the widow is to take all the outstanding debts. The residuary bequest of his personal estate would be senseless, having nothing to operate upon, and the testator knowing it to have been previously disposed of. Construing the will, therefore, by itself, I can see no ground for extending the term " moneys " to all the debts due to the testator ; and it must have this extent, if at all reaching a chose in action. The term is, if possible, less applicable to a bond than to an ac- count, especially if it was for money lent. And, indeed, if we go beyond the legal or popular signification of moneys, it must be extended to all claims sounding in contract. IN THE CONSTRUCTION OP WILLS. 537 • I shall very briefly notice the question as to the admissibility of the parol evidence. This is, in a great measure, involved in the consideration of the other question. There is, certainly, no re- sulting trust to.be rebutted, so as to'let in parol evidence on this ground ; and I have endeavored to show that there is no latent ambiguity calling for explanation by extrinsic evidence. The tes- tator has used plain, intelligible, and appropriate terms. By apply- ing the provisions in his will to the situation of his property at the time of his death, there is nothing from which it can be inferred that there is a misdescription of the fund referred to in this clause in the will. Every provision in it is satisfied by giving to the words their usual and ordinary signification. To admit the parol evidence offei'ed of the declarations of the testator would be a direct in- fringement of what has been, for centuries, considered a settled rule, that no parol evidence can be received to supply, vary, contra- dict, or enlarge the words in a will, except in the cases mentioned, of which the present is not one. I agree with Lord Ellenhorough, that it would be going farther than any case I am aware of, and a dangeroits precedent, to admit evidence of intent, from extraneous circumstances, to extend plain and unequivocal words in a will. The inquiry into the situation of the testator's property (admit- ting we were authorized to notice it) would not, in any manner, explain his intention with respect to l\js ohoses in action. Such intention would still be left to be collected from the will itself. To receive the verbal declarations of the testator to contradict or enlarge the plain and obvious import of his written language, would not only be repugnant to the most sound and salutary rules of law, and an alarming precedent, but would infringe upon the spirit and policy of the statute, which declares that no will in writing con- cerning any personal estate shall be repealed, or any part thereof revoked or altered by any words, or will, by word of mouth only. 1 N. E. L. 367. I am, accordingly, of opinion that the decree ought to be affirmed. This being the opinion of a majority of the court, it was there- upon ordered, adjudged, and decreed that the decree of the Court of Chancery in this cause be affirmed, and that the appellants pay to the respondents their costs to be taxed, and that the record be remitted, &c. There can be no question of the entire soundness of the foregoing case, and that it expresses the law of the present time. Direct extrinsic evidence of the 538 EFFECT OF EXTEINSIC EVIDENCE intention of the testator is not admissible, except in the two cases named, latent ambiguity and the rebutting of a resulting trust. But every possible form of indirect oral testimony is resorted to, in order to enable the court to reach the intention of the testator, in all other eases ; while direct testimony to the very point is studiously excluded by the English and American courts, except in the two cases named in the foregoing opinion. It has sometimes seemed to us that these refinements were useless ; much like the former refinements in regard to questions of interest, which were all swept away by the ruthless hand of legisla- tion with as little regret or ceremony as if they had not been cherished for cen- turies. Possibly some day these refinements, in regard to extraneous evidence of intention in written instruments, may share the same fate, and the courts go at once towards the very point in dispute, which would seem to be the most natural way of reaching it. We have devoted a long space to the careful revision of the cases upon this point. 1 Wills, 695-665. We should not, of course, repeat it here. But a brief abstract of some of the most salient points may be useful. 1. Very great latitude of construction is allowed under the head of false or im- perfect description, upon the ma.xim falsa demonsiratio non nocet. Thus in Sel- wood V. Mildmay, 3 Ves. Jr. 306, where the will, in consequence of being copied by the scrivener from a former one, described many of the legacies as being part of the testator's £4 per cent bank annuities, when, in fact, those annuities had been changed into long annuities, and the testator had not, at the date of the will, or afterwards, any such annuities as he had specifically bequeathed. Unless, then, the words could be made to cover the long annuities, coming in their place, these legacies, being specific, would fail. The court, therefore, admitted the extrinsic evidence, and held the words of the will to be a false description of the existing annuities, to which, no doubt, the testator must have referred. We shall discuss this question more in detail in the note to Kurtz u. Hibner, post, p. 542 et seq. The case of Selwood v. Mildmaj', supra, has been severely criticised by Sir James Wigram, in Wigram's Extrinsic Evidence, 103, and may be a somewhat liberal extension of the rule upon which it is regarded as proceeding, that of mis- description. Miller v. Travers, 8 Bing. 244. 2. Testimony has commonly been held admissible to show how the words came to be used by the testator, either by showing the state of former wills, used in drawing the present one, or by proving the surrounding circumstances, so as to put the court, as nearly as possible, in the precise position of the testator. Blundell v. Gladstone, 11 Simons, 467, 488. The great purpose of all this testi- mony is to enable the court to see clearly how the uncertainty arose. Help toward this end is often derived from a critical examination of the different por- tions of the will, and sometimes by transposition of its different portions, so as to produce more exact juxtaposition of the parts tending to explain each other. Baldwin v. Harpur, 1 Amb. 374. 3. So, too, extraneous testimony is admissible to show in what sense the tes- tator was accustomed to use nicknames, or sobriquets, or even occult phrases of any kind. This may be regarded as nothing more than defining the person or subject-matter to which the words of the will apply. Anstee v. Nelms, 1 H. & N. 225; Wigram, Extrinsic Evidence (116), 124 ; Lee v. Pain, 4 Hare, 251 ; Rolfe, B., in Clayton ». Lord Nugent, 13 M. & W. 200-207. This is not unlike the admis- sion of a translation of a will made in a foreign language. Masters v. Masters, TO CORRECT MISDESCRIPTION. 639 1 P. Wms. 421. And a will, written in short-hand or in cipher, may be ex- plained. Alderson, B., in Clayton v. Lord Nugent, supra. So technical terms or phrases may be explained by extrinsic evidence. Goblet v. Beechy, 3 Sim. 24. So, where the testator used letters to express the amount of legacies, it may^ be shown how he was accustomed to interpret such letters. Kell v. Charmer, 23 Beav. 195. 4. And extrinsic evidence is admissible, not only to rebut a resulting trust, as shown in the principal case, but equally to contradict such evidence. Kirk v. Eddowes, 3 Hare, 609, 517. And although it has been held that ordinary legal presumptions, which are in the nature of presumptions of law, cannot be re- butted, in the case of wills, by extrinsic evidence, it seems to be conceded that all such presumptions, in the nature of presumptions of fact, may be so rebutted. Loring V. Woodward, 41 N. H. 391. See also Brown v. Brown, 43 N. H. 17. II. In order TO PLACE THE COURT IN THE POSITION OF THE TES- TATOR, TO ENABLE IT TO JUDGE MORE CLEARLY OP THE TeSTATOr'S Intention; Falsa Dbmonstratio non nocet. 1. Kurtz V. Hihner, 10 American Law Register, New Series, 93. 1871. Supreme Court of Illinois, Same Case, Illinois Reports. Oral testimony is not admissible to show directly the testator's intention. And where the will devised land as being eighty acres in a particular township, range, section, and number, and it appeared that the testator owned no land precisely answering the description, it was held not competent for the devisee to prove by oral testimony that the testator did own eighty acres of land, cor- responding, in all particulars, in its description to that in the will, except that it was in section thirty-three instead of thirty-two, and that he owned no other eighty-acre tract in the township, in order to enable the court to decide, as matter of construction, that the testator must have intended to devise the land in section thirty-three, and the court thereupon declared the devise void. The facts are sufficiently stated in the opinion of the court by- Thornton, J. It has been strongly urged by counsel that |the evidence offered by appellants should have been received for the purpose of ascertaining the intention of the testator. The will devises land to Elizabeth in section thirty-^wo ; the parol evidence offered was for the purpose of locating the land in section i\iirlj-three. 540 EFFECT OF EXTRINSIC EVIDENCE The will devised to James the south half of the east half of the south quarter of section thirty-one. It was proposed to show by parol evidence that the testator intended to devise to James the south half of the east half of the- south-east quarter of section thirty-two. The law requires that all wills of land shall be in writing ; and extrinsic evidence is never admissible to alter, detract from, or add to the terms of a will. To permit evidence, the effect of which would be to take from a will plain and unambiguous language and insert other language in lieu thereof, would violate the foregoing well-established rule. For the purpose of determining the object of the testator's bounty or the subject of disposition, parol evidence may be received to enable the court to identify the person or thing intended. In this regard the evidence offered afforded no aid to the court. The devise is certain, both as to the object and subject. There are no two objects, no two subjects. The intention of the testator must prevail. How shall this be ascertained ? In the case of Smith v. Bell, 6 Peters, 74, Chief Justice Marshall says : " The first and great rule in the exposition of wills, to which all rules must bend, is that the intention of the testator expressed in his will shall prevail, provided it be consistent with the rules of law. This principle is asserted in the con- struction of every testamentary disposition. It is emphatically the will of the person who makes it, and is defined to be the legal declaration of a man's intentions, which he wills to be performed after his death. These intentions are to be collected from his words, and ought to be carried into effect, if they be consistent with law." The thing devised is certain and specific : section, township, and range are given. The evidence offered as to the mistake in the section would have made a new and different will. The testator devised lands in certain sections. The description is full, certain, and explicit. No doubt arises upon the reading of the will. Every mind is forced to the same conclusion, that the land devised, the subject of disposition, is clearly and without the slightest ambiguity described. The language is not applicable to any other land. No extrinsic evidence, then, is needed to identify the thing intended. The in- tention is manifest from the words of the will. TO CORRECT MISDESCRrPTION. 541 The case of Tncker et al. v. Seaman's Aid Society, 7 Met. 188, is cited by appellants' counsel. It appeared in that case that, in consequence of incorrect information, the legatee was not prob- ably the object of the testator's bounty. Other societies claimed the legacy. The court, however, decided that the legacy should be paid to the " society" designated in the will, not upon extrinsic proof, but upon the words of the will. The case of Riggs v. Myers, 20 Mo. 239, is also cited by counsel for appellants. That case is very different from the one under consideration. > The testator in that case made a full disposition of all his estate, and there described certain lands, locating them in a township in which he owned no lands. The land intended to be devised was, however, identified by reference to the " big spring " upon it. In the case before the court there is no disposition, either specifi- cally or generally, of the lands in bill mentioned. We think, therefore, there was no error in refusing the admission of extrinsic evidence to detract from or add to the terms of the will. The law requires the will to be in writing, to be executed in the presence of two witnesses and with certain solemnities, to insure its correctness and protect the testator from mistake and imposition. There is no ambiguity in this case, as is urged. When we look at the will, it is all plain and clear. It is only the proof aliunde wiiich creates any doubt ; and such proof we hold to be inadmis- sible. Hiscocks V. Hiscocks, 5 Mees. & Welsby, 363 ; Miller v. Travers, 8 Bing. 244 ; Jackson v. Sill, 11 Johns. 212 ; Jackson v. Wilkinson, 17 id. 146 ; Mann v. Mann, 1 Johns. Oh. 231. The decree in this case must, however, be reversed for the refusal of the court to admit the evidence offered, as affecting the rights and interests of the parties in making the partition. By the decree the court found that Elizabeth Kurtz was entitled to the undivided one-sixth part of the lands, without any direction to the commis- sioners to assign to her the portion improved, and, in case partition could not be made, to allow her a reasonable remuneration from her co-tenants who received the benefit of the improvements. This was error. Louvalle et al. v. Menard et al., 1 Gilman, 39 ; Dean et al. V. O'Meara et al., 47 111. 121 ; Borah v. Archers, 7 Dana, 176. It would be inequitable to permit the complainants to share in the benefits of the improvements without making some compensation 542 EFFECT OF EXTRINSIC EVIDENCE to the defendants for the necessary increased value to the land occasioned by the improvements. As to the eighty-acre tract, we think from the evidence offered that Elizabeth Kurtz is entitled to specific performance of the parol promise repeatedly made by her father. Appellants offered to prove such parol promise by the testator in his lifetime to Elizabeth, and that in consequence of such promise possession was taken and extensive and valuable improvements made by them. A court of equity will always enforce a promise upon which reliance is placed, and which induces the expenditure of labor and money in the im- provement of land. Such a promise rests upon a valuable con- sideration. The promisee acts upon the faith of the promise. We can perceive no important distinction between such a promise and a sale. Courts would sanction wrong and fraud not to sustain such a promise. If the proof offered can be made, then Elizabeth is entitled to specific performance, and a decree for the conveyance of the eighty acres to her upon the filing the proper bill. Bright et al. V. Bright, 41 111. 97; Shepherd v. Bevin, 9 Gill, 32 ; King's Heirs V. Thompson, 9 Peters, 204. We do not think that James Kurtz has any title to the forty acres by virtue of the will or otherwise, and partition should be made of it. Decree of the Circuit Court is reversed, and the cause re- manded with instruction to that court to proceed in accordance with this opinion, and with leave to Elizabeth to file her cross-bill. We regret the necessity of dissenting, so entirely as we must, from the argu- ment and conclusions of the learned judge in the foregoing opinion. But if we say any thing, we must, of course, say what we think ; and even silence is liable to misconstruction. From the general doctrine of the case, that oral proof is not admissible to explain or vary the words of a written instrument, there could be no dissent. But there are so many exceptions and qualifications of the rule that no case is ever tried, where the force, operation, and construction of a writ- ten instrument are concerned, that oral evidence is not received in aid of its con- struction. To such an extent is this true, that it would be impossible for any court to fix the construction of a will in such a manner as to make any reasonable approximation to the truth of the instrument, without the admission of such evi- dence. For the court, then, to throw themselves back upon the general rule and reject all oral proof, upon the broad ground that the will must speak by its words, is much the same as refusing to receive oral proof in any other case where the matter rests wholly in parol, and practically amounts to a denial of justice. We understand well enough, of course, in the present case, that the court felt compelled to reject the evidence offered, and that if there had been. TO CORRECT MISDESCRIPTION. 543 in their apprehension, any clear way to admit it, they would gladly have so done. If the ground upon which the evidence was offered is fully stated by the judge in giving the opinion, it is not improbable the court may have fallen into the misapprehension, partly on account of the true ground of the admissibility of the evidence not being fully or understandingly stated at the time the evidence was offered. Commonly, where evidence is offered upon a ground and for a purpose for which it is not admissible, it is not error in the court to reject it, although upon other grounds, and for other purposes, it might have been admis- sible. But the rejection of the evidence here is not placed upon any such narrow ground. The court seemed to suppose the evidence not admissible for any purpose, or upon any ground. The court say, indeed, that the evidence was offered by the appellants, for the purpose of showing that the will was by mistake drawn differently from what the testator intended. That precise point was immaterial, and the evidence was not, strictly speaking, admissible for that purpose. That would be to add a new term to the will by making it read, in terms, as the testator would have had it made, if he had recollected the number of the sections in which his lands lay, which can never be done. And the rule, excluding oral proof in explanation of written instruments, applies to the language of the instrument, and not to its import or construction. 1 Greenl. Ev. § 277. But nothing is more common, or we might say universal, than to receive oral proof to show that language was used in a peculiar sense, or that one term was used for another, or that an essential term, to make the definition perfect, was wholly omitted or erroneously stated. These corrections, so to speak, are every day made by courts, in fixing the construction of wills and other written instruments, by the aid of extraneous evidence in regard to the state and condition of the subject-matter of the devise, or of the devisee, or of the testator in regard to the one or the other. But for this lati- tude of construction, and the aid thus derived from oral proof, the administration of the law would become but a succession of blunders in the dark. The familiar illustration of a promissory note expressed, " I promise not to pay," &c., will occur to all. The court found no dilBculty in holding it a valid note, and a promise to pay. The case of Wilbar v. Smith, 5 Allen, 194, well illustrates the practice of the courts in supplying a word omitted. The word "residue " was there wholly omitted in the residuary clause, which was perfect in all other respects, providing that the legatees, who had received particular legacies, should receive in proportion to their former legacies, but did not say what they should receive. There could be but one answer to this question, and that was the residue of the estate, and the court so held. And one would blush for the lame- ness of the law, and of its administration, if the court had done otherwise. The books are filled with similar cases. And the present case, when properly consid- ered, and fully comprehended, is one of precisely the same character, except that it is attended with far less difficulty than the one last cited. Here the description is entirely sufficient, and more than sufficient, if we confine ourselves to the particulars, which are truly stated. The description would have been sufficient by merely naming the township in which the land lay ; and in many cases a devise of a right of land is held valid, without fixing the location within any particular township even ; as in Townsend v. Downer, 23 Vt. 225, where the description 544 EFFECT OF EXTRINSIC EVIDENCE was, " A certain right of land I purchased, lying on the main, supposed to be in Vermont ; " and the registry of titles in the town of Burlington, Vermont, show- ing a right of land standing in the name of the testator, the court held the devise applied to that until it appeared the testator held some other right in the state to which the words would apply. Testators too often depend upon memory, in describing lands in their wills, and are by consequence liable to great indefinite- ness, and occasional error. And the courts have, for a long period of years, felt compelled to deal with these descriptions in a very lenient manner, and to reach the intent of the testator, where that seemed practicable, by the act of construc- tion and by the admission of oral evidence to remove latent ambiguities. One rule upon the subject is so thoroughly established as to have become a maxim in the law, — falsa demonstratio non nocet. The practical meaning of this maxim is that, however many errors there may be in the description, either of the legatee or of the subject-matter of the devise, it will not avoid the bequest, provided enough remains to show, with reasonable certainty, what was intended. Roman Catholic Orphan Asylum v. Emmons, 3 Bradf. Sur. R. 144 ; Jackson v. Sill-, 11 Johns. 201, 218, at which latter page Mr. Justice Thompson, a very high authority, describes the force and extent of the maxim falsa demonstratio non nocet, and shows very clearly that, in a state of facts like those in the principal case, there is not the slightest difficulty in giving effect to the devise. The lan- guage of the learned surrogate, Bradford, in 3 Sur. Rep. 148 et seq., is very pertinent to the present case, and entirely decisive in favor of the devisees. See also 1 Redfield on Wills, 580 et seq., and cases cited, where, we trust, it sufficiently appears that the former decisions are all opposed to the one now before us. In the principal case, there could be no question of the admission of oral evi- dence to show the state and extent of the testator's property, in order to place the court in the same position the testator was at the time he made the will. No reasonable man could question this upon the decided cases. This being done, it appears the testator had no such land as that described in the particular sections named. This rendered it clear, absolutely certain, we may say, that the sections named were erroneous, and could have no possible operation, and must be re- jected. The devise then was the same as if the sections had not been named at all, or had been named, leaving the numbers blank. We are then compelled to fall back upon the remaining portion of the description, " eighty acres of land in range ten, in township thirty-five," and "forty acres of land in range ten, in township thirty-five ; " and, upon inquiry, we find precisely such pieces of land " in range ten, in township thirty-five," belonging to the testator. This renders the devise as certain as it is possible to make it. The description would not have been one whit more clear or certain if the true sections had been stated ; nor is it, in fact, rendered any more uncertain by the insertion of sections thirty-one and thirty-two, instead of thirty-two and thirty-three. It is entirely certain, from the language of the will, what the testator must have intended in either form. He could not have intended to devise land to which he never had any title ; he must have intended to devise land which did belong to him. He had two just such pieces of land as he names, and every way described as these are, with the single exception of this one false parlicular. It is the very case to which the maxim, falsa, &c., applies, and to which alone it can apply. The cases are TO CORRECT MISDESCRIPTION. 545 almost innumerable where similar errors have occurred, and we cannot find a single case where any such decision as that of the principal case has been made. There are any number of cases where similar and far more doubtful devises have been upheld. We should scarcely feel justified in setting forth any considerable number of them, but some few may serve to show how other courts have viewed similar cases, and, although it may not enable the court to do justice in this case, it will, we trust, persuade this court and all others not to follow the case as an authority. In Allen v. Lyons, 2 Wash. C. C. Rep. 475, the devise was of a house and lot in Fourth Street, Philadelphia. But it appeared on oral proof, admitted by the court, that the testator had no such property in Fourth Street, but did own a house and lot in Third Street, and it was held to pass under the devise ; a case so precisely in point that no one can argue against its application and control of this case. In Winkley v. Kaime, 32 N. H. 268, post, p. 547, the devise was of " thirty- six acres, more or less, of lot thirty-seven, in the second division of Barnstead ; '' and, it appearing that there was no such lot in that division, but that the testator owned land in lot ninety-seven in that division, it was held to pass under the will. This case, too, is precisely in point, since there being no such number, and the testator not having any land in it, is the same. And the case of Myers v. Riggs, 20 Mo. 239, which the court seem to regard as different from the principal case, in its principle, seems to us essentially the same. The fact that the actual loca- tion of the land devised is sufficiently identified by reference to natural objects upon it is not different in principle from its identification by the remaining por- tion of the description. All that is required in any such case is that enough of the description shall be correct to enable the court to see clearly what was in- tended. And in regard to that there can be no question in the principal case. It would not be rendered any more certain by reference to any number of natural objects on the land. So that, in fact, the last case cited is precisely in point, and of controlling authority in the principal case. There are a great number, of cases in the books where the name of the devisee, whether a natural person or a corporation, is defectively described, that involve the same principle as the principal case. In The Domestic and Foreign Mission- ary Society's Appeal, 30 Penn. St. 425, post, p. 578, the devise was to the " missions and schools of the Episcopal Church about to be established at or near Port Cresson," and it appeared the mission was maintained by the "Do- mestic and Foreign Missionary Society of the Protestant Episcopal Church in the United States ; " and this society was held entitled to receive the bequest. And in Button v. The American Tract Society, 23 Vt. 336, a similar departure from the exact description was held not fatal to the devise. In these and many similar cases the description found in the will has to be rejected, almost every word of it, and the bequests are given to corporations almost wholly dissimilar in name, upon the ground that, there being but one claimant, and that one suffi- ciently identified by the erroneous description, it is proper he should take rather than the bequest he held whoUy void. In an earlier period of the history of this rule of evidence, excluding oral proof in regard to the import and construction of written instruments, there may be found an occasional case where bequests have been held void upon some such 35 546 'EFFECT OP EXTRINSIC EVIDENCE grounds as those relied upon in the principal case. But in modern times no such results are allowed except from the most inevitable necessity. And it seems almost incomprehensible how any such misapprehension of the established rules of evidence and construction could have occurred in the present case. But, unless we have spent our life and studied the books to small purpose, there is surely some fatal miscarriage in this case. The recent decision In re Gregory, 11 Jur. N. s. 634, is a very marked one, going much further than is required to sustain the devise in the principal case ; and we might continue to cite cases without end fully sustaining, our views; but we have said enough, if to the pur- pose, and, if not, the less said the better. We have not alluded to the slight variation in the descriptions between " south" and " south-east," because it is not relied upon in the decision, and is of no possible importance in any view, since the precise import of the points of compass, when used in a general way, and not upon actual survey, is never rigidly applied in construction, but regarded only as an approximation. We trust we have not failed to express our views in regard to the foregoing case with all that moderation and respect which is due to the decision of so learned and able a court, and which we most sincerely feel. But that the deci- sion is fatally erroneous, there can be no question or doubt. There is no propo- sition in the law of evidence more unquestionable than that the evidence offered was admissible in aid of the construction, and that with that aid the devise should have been upheld. In the present case, the bequest seems, as stated above, clear and certain enough upon its face. But when it is shown that the testator owned no land in section thirty-lwo, the devise becomes inoperative, unless it can be shown from incidental testimony what is the exact error in the description, and thus enable the court to apply the devise to the subject-matter intended, according to the maxim falsa demonstratio non nocet. The books are full of cases of this character, and there is not half of them, perhaps, where the error in description is so little misleading as in the present case. A few illustrations will render our meaning clear. In the case of Trustees v. Peaslee, 15 N. H. 317, the testator made a bequest to the " Franklin Seminary of Literature and Science, New Market, N. H.," and there was found to be no such seminary in that town, and this, upon the theory of the principal case, would have rendered the bequest void. But there being no other school or seminary of learning or science in that town, except the " South New Market Methodist Seminary," that was held entitled to the bequest. It was clear upon the most unquestionable grounds of presumption that the testator must have meant this seminary, since there was no other in the town named by him, although every particular of the name was mistaken, except the single word " seminary." To apply the same rule of construction to the principal case, it is clear, beyond all question, the testator intended to give the devisee " eighty acres " of land. He could not give land he did not own, and the law presumes he intended to give land which he did own. No one will question this, we be- lieve, who intends to be governed by the rules of law in reasoning or being rea- soned with. Where, then, shall we find this ' ' eighty acres " ? In the same township named, and every way answering the very words of the will, except in one particu- lar, using " thirty-two " for " thirty-three," we find " eighty acres " of the testator's land, so far as appears his only land answering that description. Can any one pre- TO COERECT MISDESCRIPTION. 547 sume to say the case does not come clearly within the principle of that last cited, or that it admits of the slightest question or doubt what must have been the land intended ? The further testimony offered in the principal case, that the devisee had long occupied the land in question under an assurance that she should have it devised to her, was probably admissible in aid of the construction, if there had been any remaining uncertainty, which, in fact, there was not. In Gregory, In re, 11 Jur. K. s. 634, already cited, a devise to "Francis G., the youngest son of my brother Francis G.," there being no son of that name, but the youngest son being named Arthur Charles and the eldest son Arthur Francis, was decreed to the youngest son, upon oral testimony that he was the godson of the testator, and that a former will contained a devise of the same property to him. This seems to be a case decided far more upon extrinsic evidence than was necessary in the principal case. See also In re Kilvert's Trusts, L. R. 7 Ch. App. 170 ; reversing 8. c. L. E. 12 Eq. 188. If the subject intended is certain, and the words apply to but one subject, a superadded false term in the description, or an entire false description added, will produce no ambiguity. Roman Catholic Orphan Asylum V. Emmons, 3 Bradf. Sur. 144, post, p. 574 ; Woods v. Moore, 4 Sandf. 679 ; Jackson v. Sill, 11 Johns. 201 ; Farrer v. St. Catherine's College, L. R. 16 Eq. 1. The following case, already referred to in the above note, is so pertinent that we give the opinion at length : — 2. . Winkley v. Kaime, 32 New Hampshire Reports, 268. 1855. Any portion of the description of the devisee or of the thing deviSed, which is inapplicable, may be rejected, and the devise still be upheld, provided enough remain to show clearly the person or thing intended. The opinion of the court sufficiently discloses the facts, and was delivered by — Eastman, J. The demandant declares for forty acres of land, more or less, of lot No. 97, in the second division in Barnstead. The case was turned into an agreed one at the trial, and we take the evidence as finding the facts. The first step in the demandant's title is a devise from Benjamin Winkley to the demandant, of " thirty-six acres, more or less, in lot 37, in the second division in Barnstead, being same I purchased of John Peavey." It is apparent that here is a radical difference between the de- scription of the premises demanded and those contained in the devise ; the land demanded being a part of lot No. 97, and that bequeathed being a part of lot No. 37. 548 EFFECT OP EXTRINSIC EVIDENCE ' The plaintiff contends that there is a latent ambiguity in the devise, and that the testator intended to bequeath to him the land in lot 97, as set forth in his declaration, and not 37. To prove this, parol evidence was introduced on the trial, tending to show that the lands occupied by Peavey were a part of 97 in the second divi- sion, and that there is no such lot as 37 in the second division in that town. The first question in the case then is. Was this a latent am- biguity, that could be explained by parol evidence ? Several definitions of a latent ambiguity have been given by dif- ferent writers, which are doubtless familiar to the profession. Sugden, in his work on Vendors, has laid down as concise, and perhaps as clear and practical a definition as is to be found in any treatise upon the subject. " A latent ambiguity," he says, " is that which seems certain, and without ambiguity for any thing that appears upon the instrument ; but there is some collateral matter out of the deed, that breeds the ambiguity." Sugden on Vendors, 101. There is nothing ambiguous in the terms of this devise ; but the evidence shows that, as it stands, it cannot take effect, for there is no such lot as No. 37 in the second division. The ambiguity is latent, shown so to be by the evidence ; and if that stands well with the words of the will, it will be competent, as showing the meaning and intention of the testator. Without going into any extended examination of the question of latent ambiguity at the present time, it is sufficient for the present case to say that it appears to come very properly under the rule of falsa demonstratio non nocet; the principle being that, if there is a sufficient description of the land devised, or of the person of the devisee intended by the testator, independent of the erroneous description, the will will take effect. Selwood v. Mildmay, 8 Ves. Jr. 306 ; Goodtitle v. Southern, 1 Maule & Selwyn, 299 ; Day v. Trigg, 1 P. Wms. 286 ; Miller v. Travers, 8 Bingham, 244 ; Lush V. Douse, 4 Wendell, 313 ; Worthington v. Hylyer, 4 Mass. 196 ; Loomis V. Jackson, 19 Johns. 449 ; Trustees v. Peaslee, 15 N. H. 317 ; Lathrop v. Blake, 3 Poster, 46. In Boardman v. Reed, 6 Peters, 326, the land was described in a patent as lying in the County of M., and further described by reference to natural monuments ; and it appeared that the land described by the monuments was in the County of H., and not of TO CORRECT MISDESCRIPTION. 549 M., and the court held that that part of the description which re- lated to the county should be rejected, and that the patent was not made void by the mistake. A learned author, in discussing the subject, says that if lands are described by the number or name of the lot or parcel, and also by metes and bounds, and the grantor owns lands answering to the one description, and not to the other, the description of the lands which he owned will be taken to be the true one, and the other rejected as falsa demonstratio. 1 Greenl. on Ev. § 301. By rejecting the words and figures, " in lot 37," in this devise, it will stand thus : " Thirty-six acres, more or less, in second division in Barnstead, being same I purchased of John Peavey." What the testator purchased of Peavey is shown to be in the second divi- sion ; is bounded, and answers in all respects to the description in the devise, except the number of the lot. The extrinsic evidence thus manifestly shows what must have been the intention of the testator ; and, both upon the doctrine of the authorities and the justice of the -case, we think the devise should be made to take effect. The next link in the demandant's title which appears to require some examination is the conveyance by the administratrix of H. Mellen to Hale and Green, in November, 1815. A due ap- pointment of the administratrix was shown, and regular license to sell real estate ; but no petition for license, or notice to the heirs, or other proceedings in relation to the sale, were proved. It is unnecessary to say to what conclusion we might arrive upon this point, were the proceedings and sale of recent date. This sale took place forty years ago ; and after such a lapse of time it will be presumed that the necessary and proper steps were taken to make the sale regular and legal, where possession follows. Greenleaf says that where an authority is given by law to exec- utors, administrators, guardians, or other officers, to make sales of lands upon being duly licensed by the courts, and they are required to advertise the sales in a particular manner, and to observe other formalities in their proceedings, the lapse of sufficient time (which in most cases is fixed at thirty years) raises a conclusive pre- sumption that all the legal formalities of the sale were observed. 1 Greenl. on Ev. § 20. And in Campbell et al. v. Wallace, 12 N. H. 362, it was held that after a partition of real estate by a decree of the Court of Probate, 650 EFFECT OP EXTRINSIC EVIDENCE and an acquiescence and occupation under it for the term of twenty years, the proceedings must be presumed to have been regular, and be held conclusive. The license to sell, as well as the appointment of the administrator, being matters of record, should be proved, as was done in this case ; but the formalities not required to be of record -will be presumed to have been correctly observed, after such a lapse of time, and possession under the title. Without tracing the title back further than this sale in 1815, we find that in 1826 an entry was made under G. W. F. Mellen, who had the deed of the premises, and that he caused the lines to be run out and spotted in 1829, and cut upon the premises either that year or the following. Peavey, who held the title from 1834 to 1839, cut wood and hoop-poles upon the lot ; and Winkley, who held by deed from Peavey from 1889 to the time of his death, in 1850, cut his yearly stock of wood upon tiie land. This occupation, with these conveyances, are sufficient to give title to the plaintiff against all who can show no better right to the lot. Has the tenant shown such a right ? We think not. He derives his title from Benjamin Winkley, the plaintiff's devi- sor, as collector of taxes in 1805. The description of the premises is, nineteen acres of land out of lot 97, in common and undivided, being the same lot that was formerly owned by Hale and others. We do not propose to consider the question whether or not this deed was void for uncertainty, although the decision in Haven v. Cram, 1 N. H. 93, would seem to show that it was. In that case it was held that the conveyance of a constable, who sold part of a lot of land for taxes, and described it in his deed as " a certain tract of land, part of lot No. 300, containing 250 acres," was void. And it was said that the deeds of an officer, acting on behalf of the public, and conveying lands not his own, by virtue of a public law, will not be construed to transfer any thing more than what is par- ticularly expressed. Jackson v. Delancy, 18 Johns. 587 ; Jackson V. Van Buren, ibid. 525. This deed might perhaps answer as showing a color of title, had the land ever been located, and possession accompanied the loca- tion. But there is no evidence of any location nor of any posses- sion under this deed, or under those conveyances founded upon it, till 1828, — two years after the entry of the demandant under the Mellen deed. The cutting of a few hoop-poles in 1805, by the son of J. G. TO CORRECT MISDESCRIPTION. 551 Kaime, after his death, without any claim of title, cannot be re- garded as an entry or possession ; especially as nothing further was done upon the lot till 1828. We might remark, further, that the reference in the collector's deed to the lands as being occupied by Hale and others, coupled with the evidence showing that Hale and others held in 1790 seisin of a part of lot 97, not including these premises, would seem to show that this deed, if it conveyed any thing, covered land not held by the demandant. The tenant, then, not showing either title or possession para- mount to that of the demandant, must fail ; and, according to the provisions of the case, there must be judgment for the plaintiff. We have inserted the two preceding cases, which seem to us the same in principle, to illustrate a fact, not uncommon in practice, that two cases will often be decided different ways, when the only essential difference between them is the fact that we apply different principles of construction to them. It is not at all won- derful the case of Kurtz v. Hibner, supra, was referred to the same principles of law upon which it was presented to the court by counsel, i.e., that the extrinsic evi- dence was offered for the purpose of correcting an error in drawing the will. It is clear such an error occurred, and equally clear that the purpose of the parol proof offered was, in one sense, to correct that mistake, by enabling the court to apply the devise to the land intended to be embraced by it. But the testimony was not admissible upon any such ground. If the extrinsic evidence had shown that the testator owned two " eighty-acre" pieces of land in the township named, it would have been competent, if the description applied with legal certainty to both, to receive oral proof which the testator intended to devise to this devisee. But as there was only one " eighty-acre" piece of land in the township or dis- trict, or, so far as appeared, anywhere, belonging to the estate of the testator, or which he could by possibility have intended to convey by the devise, the case was rendered perfectly certain as to what was intended, the same as in Trustees v. Peaslee, 15 N. H. 317. But, in looking further into this case, there is every thing to render the intent certain which one could even desire. The descrip- tion itself, by rejecting one false particular, the section, remains perfect and complete, and far more minute than was at all necessary to identify the land. Then we have, in addition, the fact that the devisee had long occupied the land under the testator, with the expectation and assurance of having it so devised, as it was. We have said more upon this point than we otherwise should, on account of the importance of the rule attempted to be maintained in Kurtz v. Hibner, supra, that if the description of the thing devised is erroneous in one particular, so that it applies with strictness to a piece of property which does not belong to the estate of the testator, it thereby becomes imoperative to pass another piece of property, which the testator did own and which is less perfectly described in the will. This seems to be assuming the proposition that, if the will perfectly de- scribes one person or thing which the testator could not, by any possibility, be supposed to mean, there is some invincible rule of construction, whereby such 552 EFFECT OF EXTRINSIC EVIDENCE description cannot be applied to any other person or thing which it less perfectly describes, and which it is entirely obvious the testator did mean to have it em- brace. This rule of construction might apply, or rather has been applied, in some cases, where there was nothing to show that the testator could not have intended the strict and full application of the terms of his will. But when that appears, and to the extent to which it so appears, it is the same as if the words had not been used. When, therefore, it appears that the testator did not own any land in section thirty-two, it becomes absolutely certain this part of the description must have been a mistake, since no one in his senses would undertake to devise an estate to which he never had any claim or color of title. This part of the description must, therefore, be rejected, and become of no force whatever, any more than if it had never existed. It has always seemed to us the court in Kurtz v. Hibner must have disregarded the fact that the testator did not own the land fully described, and could not, therefore, be presumed to have intended to devise it. But, even if be had owned " eighty acres " in each of the sections thirty-two and thirty-three, it would have been competent by oral proof to show which he intended to devise. See Grant v. Grant, Law Rep. 2 P. & D. 8 ; s. c. Law Kep. 5 C. P. 380 ; s. c. 18 W. R. 230, 576, in C. P. 951 in Exchequer Chamber, where it was held that a bequest to the testator's nephew, Joseph Grant, he having such a nephew, whom he had never seen, might go to his wife's nephew of the same name, who lived with him, and was evidently intended by the will. But there is a class of cases where the will describes one person or thing perfectly, and another person or thing less per- fectly, in which the courts have refused to accept oral proof of the intention of the testator, upon the ground that the more perfect description must control. Some of these cases will be found post. Tucker v. Seaman's Aid Society, 7 Met. 188. But by the note to that case it will appear that these cases are not law in England, and not followed in this country to the same extent as formerly. But these cases. have no application to cases of mere false description, where one or more particulars are irrelevant and must be rejected, and the remaining portion of the description thereby becomes explicit. III. Oral Testimony admissible to define the State of a Specific Bequest and wfat the Testator, by his Conduct, indicated as embraced in such Bequest, in order to enable the Court more understandingly to apply the Words of the Will to the Subject-matter of the Bequest. 1. Spencer v. Higgins, 22 Connecticut Reports, 521. 1853. Where the testator bequeathed to his wife ' ' all the property she brought with her at our intermarriage," it was held competent to show that the testator treated the avails of certain notes, paid and deposited in the savings bank, as em- braced in this bequest, both as to the principal and interest ; also that the bequest was specific, and carried both the principal and interest. TO AID IN APPLYING THE WORDS OF THE WILL. 553 The opinion of the court was delivered by — Ellsworth, J. The propriety of receiving parol testimony for the purposes for which it was offered, and the effect of that evi- dence wlien received (the two questions made), are not, in our judgment, attended with any serious difficulty. They grow out of the application of a well-known and well-settled principle of law, rather than the introduction of any new one, as is generally seen in cases of this character. We agree most fully tliat no man can make a parol will ; nor can the language of a will when made be denied, or qualified, or even explained by parol. The testator must speak exactly by the language he makes use of, and we can impute to him no other words than are written in the will, and what they mean of themselves. Were we to do otlierwise, we should repeal tlie statute of wills, as well as go abreast of that great principle of the common law, that written evidence must pre- vail over unwritten. In other words, the rule is directed against the admission of any other evidence of the language employed by the testator than that which is fuTuished by the language itself. The will may be read by the light of surrounding circum- stances, in order to see how -the language shall be applied, and, in this collateral particular, to learn the intent and meaning of the testator ; but the will is the only outward and visible expression of the testator's meaning ; no other words are to be added or sub- stituted. Tlie end sought is not to learn what the testator intended, as contradistinguished from what his words express, but just as in written contracts we receive parol evidence, to explain latent ambiguities, technical phrases, terms of art, scientific words, and the meaning of a foreign language. We hold the rule as laid down in 1st of Jarman, 348, 349: "As the law requires wills, both of real and personal estate, to be in writing, it cannot, consistently with this doctrine, permit parol evidence to be adduced, either to contradict, add to, or explain the contents of such will ; and the principle of this rule evidently demands an inflexible adlierence to it, even where the consequence is the partial or total failure of the testator's intended disposition ; for it would have been of little avail to require tiiat a will, ab origine, should be in writing, or to fence a testator round with a guard of attesting witnesses, if, when the written instrument failed to make a full and explicit disclosure of his scheme of disposition, its deficiencies might be supplied or its inaccuracies corrected." 554 EFFECT OF EXTRINSIC EVIDENCE The language used in this will is, " I do give and devise to my beloved wife all the furniture and all the property she brought with her." It is obvious Mrs. Spencer must resort to parol proof to identify the property which she is to take. This is just what she is attempting, and it is in this view, we think, the evidence is clearly admissible. The words are, " the property which she brought" &c. The inquiry, therefore, is. Where is that property, and of what does it consist ? First, we will speak of the principal of the bequest. That is the chief obstacle which has been presented by the argument of the counsel. No attempt has been made by the administrator to de- prive Mrs. Spencer of this, vested, as it is, in her name, in the savings bank ; and we think there could be none. The property she brought with her consisted, at the time of the marriage, almost entirely of certain notes of hand. These she has collected, and deposited, or their avails, in the bank, in her own name, and for her own use ; her husband disclaiming any right to it, and never exercising any dominion over it. She has paid the taxes, kept her own bank-book, and has* caused this money, the avails of her specific notes, to accumulate, for her sole and exclusive enjoyment. Now, if these specific notes were in -being, they would certainly pass, by the language of the will ; but suppose some of the notes had been taken up, and renewed by their endorsers, or that new loans had been made by her of that principal, and new notes taken in her name, with Mr. Spencer's consent, in order that the property might be kept separate and distinct from his own, would it not all pass by the description, " the property she brought," , 73, and Amer. note. The counsel for the appellee asked, " If a witness may adopt what is made by another, cannot he adopt what is made by himself?" But the mark is not made by another, but by the witness himself, and has never, so far as we are informed, been held sufficient un- less affixed in the presence of the testator. Even a signature of a witness's own name when his hand is guided by another person is held sufficient in England onlyjjecause the witness has some share 646 THE EXECUTION OF WILLS, in the writing. Be Mead, 1 Notes of Oas. 456 ; Be White, 2 Notes of Cas. 461 ; Harrison v. Elvin, 3 Q. B. 117 ; Lewis v. Lewis, 2 Swab. & Tristr. 163. And we have seen no American decision which goes further, except that of tlie surrogate in Campbell v. Logan, 2 Bradf. 90. A subscription of the name or mark of a witness by another person in the presence of himself and the tes- tator might possibly be a literal compliance with the statute, but, not being in the handwriting of the witness, would create no pre- sumption of a lawful execution and attestation, without affirmative evidence .that it was so made. Li the case referred to in 3 Dane Abr. 452, in which this court held the mark of a witness a sufficient subscription, the record shows that the will of Stephen Needham was admitted to probate upon the testimony of the three witnesses to a compliance with all the statute requirements, and, among others, " that they and each of them in the presence of the said Stephen and at his request and in the presence of each other sub- scribed the said instrument, namely," two of them " severally wrote their names at full length upon the said instrument," and the third " made a mark thereto, upon and near which and with her consent the said Stephen wrote her name at full length." Needham v. Needham, Essex, November term, 1802. There is no direct decision in this commonwealth upon the question whether the subscription of a witness to an instrument yet unsigned by the testator and in his absence may be made good by afterwards acknowledging it in liis presence. Certainly no careful attorney or scrivener would advise or permit such an attestation and subscription. And many expressions in our books tend to show that it would be invalid. Mr. Dane recognizes the doctrine that if the testator owns his signature to the witnesses, it is suffi- cient, but assumes that the witnesses must subscribe in his pres- ence. 4 Dane^Abr. 562, 563. In Laughton ?;. Atkins, 1 Pick. 543, 544, Chief Justice Parker, quoting Eccleston v. Speke, above cited, said that to comply with the Statute of Frauds, a will must be "signed and subscribed by the witnesses in the presence of the testator." The commissioners on the Revised Statutes, in recom- mending that the formalities required for a will should also be required for an instrument of revocation (as the legislature ac- cordingly did in the Rev. Stats, c. 62, § 6), remark that our statute of 1783, like the Stat, of 29 Car. II., from wliich it was copied, made this difference between the two, wliich they italicize as fol- THE ATTESTATION OF THE WITNESSES. 647 lows : ^' The former must be attested and subscribed by three or more witnesses in the presence of the testator; hkit it is not required tliat he should sign it in their presence ; whilst an instru- ment revoking a will must be signed by the testator in the presence of three or more witnesses, but it is not required that they should subscribe it in his presence, nor indeed that they should subscribe it at all." In Dewey v. Dewey, 1 Met. 354, Mr. Justice Dewey said, " It can hardly be supposed that the testator, who was by his own active agency procuring the authentication of the instrument by the requisite witnesses, would have omitted the first step neces- sary to its due execution ; viz., the signature by himself." These words are quoted with approval in Ela v. Edwards, above cited. In Boldry v. Parris, 2 Gush. 433, the questions whether a witness might sign before the testator, and whether an acknowledgment by a witness in the presence of the testator was equivalent to a sub- scription, were raised by counsel, but not noticed in the opinion, because there was no evidence that one of the witnesses so much as acknowledged his signature in the testator's presence. The Supreme Court of Vermont, under a statute exactly like our own, except in requiring the witnesses to attest and subscribe in the presence of each other as well as of the testator, has indeed lield, with the courts of England and of Massachusetts, that an acknowledgment by the testator of his signature in the presence of the witnesses is sufficient. Adams v. Field, 21 Vt. 256. But the same court has held that an acknowledgment by one witness, in the presence of the others and of the testator, of a signature made in the absence of one of them, is not a subscription in their presence. Pope v. Pope, Vermont Sup. Ct. (not reported). The Supreme Court of New York, under the provisions of the English Stat, of 29 Car. II., assumed it to be necessary that the witnesses should subscribe in the presence of the testator, and in- ferred the fact of their having so subscribed from their signatures to an ancient will, although not stated in the attestation clause. Jackson v. Christman, 4 Wend. 282. And in Peck v. Cary, 27 N. Y. 31, 32, Cliief Justice Denio quoted as entitled to great weight the opinions of Sir Herbert Jenner Fust in Cooper v. Bockett, above cited, and other cases. The decisions cited by the appellee from Bradford's Surrogate Reports were made under a statute which required each attesting witness to " sign his name as a witness, at the end of the will, at the request of the testator," but omitted the 648 THE EXECUTION OP WILLS. requirement of earlier statutes that the witness should sign in the testator's presence. Rev. Stats, of N. Y. (3d ed.) pt. 2, c. 6, § 32 ; 4 Kent Coram. (6th ed.) 515 ; Ruddor v. McDonald, 1 Bradf. 352 ; Vaughan v. Burford, 3 -Bradf. 78 ; Hoysradt v. Kingman, 22 N. Y. 372. The statute of Illinois, under which the case of Yaughan v. Yaughan, 13 Amer. Law Reg. 735, arose, had a similar omission, and only required the willto be "attested in the presence of the testator by two or more credible witnesses." Comp. Stats, of Illi- nois of 1856, c. 110, § 1. And these decisions were but of single judges in county courts of probate. The case of Miller v. McNeill, 35 Penn. State R. 217, to which the appellee has referred, arose under the Pennsylvania statute of 1833, providing that " every will shall be in writing, and, unless the person making the same shall be prevented by the extremity of his last sickness, shall be signed by him at the end thereof or by some person in his presence and by his express direction, and in all cases shall be proved by the oaths or affirmation of two competent witnesses." By that statute, as by the previous law of Pennsylvania from very early times, the witnesses need not sub- scribe at all, even to a will of real estate. Hight v. Wilson, 1 Dall. 94 ; Rohrer v. Stehman, 1 Watts, 463. In Delaware, under a statute like ours, it was held that the witnesses must sign in the presence of the testator, and the distinction between such a statute and that of Pennsylvania was pointed out by Chief Justice Clayton. Rash V. Purnel, 2 Barring. 458 ; Pennel v. Weyant, id. 606. In New Jersey, under a statute in terms requiring wills to be " signed by the testator in the presence of the subscribing wit- nesses," an acknowledgment of his signature is held insufficient. Den V. Mitton, 7 Halst. 70 ; Combs v. Jolly, 2 Green Ch. 625 ; Mickle V. Matlack, 2 Harrison, 86. And in the last case Chief Justice Hornhlower, who dissented on this point, as well as Mr. Justice Dayton, who concurred with the majority of the court, thought that the witnesses must sign in the presence of the testa- tor. 2 Harrison, 96, 116. The Supreme Court of North Carolina, under a statute like ours of 1783, have held in at least three cases, the facts of two of which were singularly like those now before us, that a will could not be established unless the witnesses actually set their names in the testator's presence, and that, as said in the earliest case, " it was the intention of the legislature that the heirs-at-law should not be THE ATTESTATION OP THE WITNESSES. 649 disinherited but by a strict compliance with tlie words of the act, and that the door to fraud should be completely shut." Raglaud V. Huntingdon, 1 Ired. 561 ; Graham v. Graham, 10 Ired. 219 ; In re Cox's Will, 1 Jones, 321. In Connecticut and Kentucky it has indeed been held, under statutes not unlike our own, that a witness miglit sign in the presence of the testator before he signed, and acknowledge it after- wards. O'Brien v. Galagher, 25 Conn. 229 ; Swift v. Wiley, 1 B. Monr. 117, approved in Upchurch v. Upchurch, 16 B. Monr. 113. But the only decisions, which have come to our notice, in which an acknowledgment by a witness to a will in the testator's pres'^nce, of a signature affixed in his absence, has been held to be an attes- tation and subscription in his presence, are tliose of a bare majority of the Court of Appeals of Virginia in Sturdivant v. Birchett, 10 Grat. 67, and Parramore v. Taylor, 11 Grat. 220. We have not overlooked the similar opinion expressed by Mr. Redfield in his learned Treatise on Wills, 230, 247, and in 13 Amer. Law Reg. 741. This analysis of the cases shows that by the preponderance of American authority, as by the uniform current of the English decisions, an express requirement of statute that one person shall sign or subscribe in the presence of another is not complied with by signing in his absence and merely acknowledging in his pres- ence. And upon full consideration we are satisfied that in this, as in most other legal matters, reason and principle are on the side of authority and precedent. The statute requires that the will shall " be in writing and signed by the tefstator," and shall be " attested and subscribed in the pres- ence of the testator, by three or more competent witnesses." He is not required to write his signature in their presence, but it is his will which they are to attest and subscribe. It must be his will in writing, though he need not declare it to be such. It must therefore be signed by him before it can be attested by the wit- nesses. He must either sign in their presence, or acknowledge his signature to them, before they can attest it. The statute not only requires them to attest, but to subscribe. It is not sufficient for the witnesses to be called upon to witness the testator's signa- ture, or to stand by while he makes or acknowledges it, and be prepared to testify afterwards to his sdnity and due execution of the instrument, but they must subscribe. This subscription is the 650 THE EXECUTION OF WILLS. evidence of their previous attestation, and to preserve the proof of that attestation in case of tlieir death or absence when after the testator's death the will shall be presented for probate. It is as difficult to see how they can subscribe in proof of their attesta- tion before they have attested, as it is to see how they can attest before the signature of the testator has made it his written will. The manifest intention of the statute is that, 1st, the will should be put in writing and signed by the testator ; 2d, his will so writ- ten be attested by the witnesses ; and 3d, the witnesses subscribe in his presence in evidence of their attestation to his written will. There is less reason for requiring the testator to sign in the pres- ence of the witnesses, than for requiring them to sign in his presence. A testator may alter his will as he pleases at any time before it is formally attested. He may write it out in full and sign it, and it has no effect as a will until duly attested. It is unimportant whether it is or is not signed by the testator until it is produced to the witnesses. It is only important that it should be his will in writing and signed, when they attest and subscribe it ; and it is equally his will in writing, whether signed in their presence or at some previous time. It is the will of the testator, not of the witnesses. He must know its contents, but they need not; He has the contents, as well as his signature, by which to know that it is the instrument declaring his last wishes in respect to his estate. They need see nothing but his signature and their own. To allow them to acknowledge in his presence their names signed in his absence would open a door to mistake and fraud. If the witnesses might subscribe before they had attested his signa- ture, and even before he had signed, of what weight could their subscription be as evidence, after their death, that the will had been duly signed and attested ? But the controlling consideration is, that the statute in terms requires not only that the witnesses shall attest his will, but that they shall subscribe in his presence. The distinction in this respect between the signature of the testa- tor and the subscription of the witnesses has existed in the statute law both of England and of Massachusetts for nearly two centuries, and been preserved in repeated enactments when other clauses have been altered. The court cannot presume so constant a dif- ference in language to have been unintentional, or disregard it as immaterial. As it appears by the testimony stated in the report that one of OFFICE AND EFFECT OF ATTESTATION CLAUSE. 651 the attesting witnesses subscribed his name before the testator signed and in his absence, the instrument offered for probate should have been disallowed. V. Proper Office and Effect op the Attestation Clause in THE Will. Duty op Witnesses. Chaffee v. Baptist Missionary Convention, 10 Paige^s New York Chancery Reports, 85. 1843. An attestation clause, showing all the requisites of the law, for the due execution of the will, to have been duly observed, is not indispensable. The witnesses may supply any defect, in that respect, by their testimony. Indeed, any such defect may be supplied by intendment from circumstances, after the witnesses have deceased [or when they do not recollect the fact] . And even where the attestation clause enumerates all the requisites, as having been complied with, the contrary may be shown by the witnesses. But it is desirable to have a perfect attestation clause, as presumptive evidence of the requisite facts, in case of the decease or want of recollection of the witnesses, as well as to show that the person directing the execution of the will knew the proper requisites, as the foundation for presuming that he would, in that case, naturally have seen to their performance. It is a good practice to have the attestation clause enumerate all the requisites to the valid execution of the will, and also to have it read over to the wit- nesses before signing it, to enable them to know what they attest and fix it in memory. And where there is any reason to question whether the testator knew of the con- tents of the will, as when he signed by mark [or is incapable of reading himself, from blindness or for any other cause] , to have the will read, in his hearing and that of the witnesses, at the time of execution, and have that fact appear in the attestation clause. For in some way, either by inquiry of the testator or otherwise, the witnesses should be assured that the testator knew the contents of the will, and was of sound mind and memory. But these precautions are not indispensable. The facts may be shown in any other mode satisfactory to the triers. All the statutory requirements must be complied with in the execution of a valid will, and the burden of showing it rests upon those wishing to establish it. But all these facts may be [implied] or shown from circumstances, or the testimony of other witnesses, where from any cause the testimony of the sub- scribing witnesses cannot be had, or they fall to recollect what did occur at the time of the execution of the will [and even when they testily that some important requirements were not complied with] . 652 THE EXECUTION OP WILLS. the mere recognition of the completed instrument by the testatrix as her will, in the presence of the witnesses, is not a compliance with the requirements of the New York statute. She must, in some way, either by name or mark, sign the will in the presence of the witnesses, or acknowledge the signature as made by herself, or by some one else by her express direction and in her presence. For want of proof of this latter requirement the will was declared not duly executed. The opinion of tlie court was delivered by — Walworth, Cliancellor. An attestation clause, showing upon its face tliat all the forms required by the statute have been com- plied with, is not absolutely necessary to the validity of a will ; as the witnesses will be permitted to prove that the forms were in fact all complied with, although the attestation clause is silent on the subject. Indeed, it lias been decided tliat a formality of this kind, not noticed in the attestation clause, may even be presumed from circumstances, after the witnesses to tlie will are dead. Croft v. Pawlet, 2 Str. Rep. 1109 ; Bryce v. Smith, Willes, 1 ; Hands v. James, Comyns's Rep. 531. The statute does not require an attes- tation clause showing that the proper legal formalities were com- plied with ; and although upon the face of the instrument those formalities are stated to have taken place, the fact may be dis- proved by tlie witnesses. But prudence requires that a proper attestation clause should be drawn, showing that all tlie statute formalities were complied with ; not only as presumptive evidence of tlie fact in case of the death of the witnesses, or where from lapse of time they cannot recollect what did take place, but also for the purpose of showing that the person who prepared the will knew what the requisite formalities were, and therefore gave the proper information to the testator, or saw that they were complied with if lie was present. To impress the more strongly upon the memory of the witnesses the important fact that all the legal forms requisite to a due execution of the will were complied with, at the time when they subscribed tlieir names as witnesses to such execu- tion, the safer course always is to read over the whole of the attes- tation clause, in tlie presence and hearing of the witnesses, and of the testator. And where the person executing the will is not known to the subscribing witnesses to be capable of reading and writing, especially if he executes the will as a marksman, it would be proper OFFICE AND EFFECT OF ATTESTATION CLAUSE. 653 that the whole will should be deliberately read over to hiin in the presence and hearing of the witnesses, and the fact of such reading in his presence should be stated in tlie attestation clause. Or at least the witnesses ought, by inquiries of the illiterate testator him- self, to ascertain the fact tliat he was fully apprized of the contents of the instrument which he executed and published as liis will, as well as ^hat he was of competent understanding to make a testa- mentary disposition of his property. All these things, however, are matters of precaution and prudence, to prevent any well-founded doubt upon matters of fact; and wiiere they are neglected, it does not necessarily render the will invalid, if the court or jury wliich is to pass upon the question of its validity is satisfied, upon the whole evidence, that tlie will was duly executed, and that the testator understood its contents. The legislature, however, has seen proper to prescribe certain legal requisites to the due execution of a will ; all of wiiich must be substantially complied with or the will is void in law. And the onus of satisfying the court that these forms were compiled with lies upon the party seeking to establish the will. But the fact of such compliance may be proved by other evidence, or inferred from circumstances, wliere the subscribing witnesses are dead, or absent, or otherwise incapacitated to give testimony ; or where from lapse of time, or otherwise, they are unable to recollect whether the req- uisite formalities were observed at the time when they witnessed the execution of the instrument. The first of the legal forms re- quired by the statute is that the will shall be subscribed by the testator at the end thereof. And. the second, which is equally im- perative, is that such subscription sliall be made by the testator, in the presence of each of the attesting witnesses, or shall be acknowl- edged by him to have been so made to each of the attesting wit- nesses. 2 R. S. 63, § 40, sub. 2. It is not necessary that the testator should be able to write his name ; for it has been deter- mined that the making of his mark, by the testator, is a sufficient signing within the statute. 1 Rob. on Wills, 94 ; Addy v. Grix, 8 Ves. 504. Tlie former statute required tliat the will should be signed by the testator, or by some other person in his presence and by his direction. And that the legislature did not intend to alter the law in that respect is evident from the fact that this mode of subscribing the testator's name, by the instrumentality of another person but by the testator's direction, is recognized in the forty -first 654 THE EXECUTION OP WILLS. section. There was no evidence here, however, that the name was subscribed to this testamentary paper by the direction of tlie testa- trix, or even in her presence. And for aught that appears to the contrary, the will may have been brought to her precisely in the form in which it appeared when she took it out of the drawer. She did not admit to either of the witnesses that she had subscribed her name to the will, or say that any other person had written it there in her presence, or by her direction. On the contrary, one of tlie witnesses swears that he did not hear her say any thing about who wrote the name ; and the other says nothing on the subject. The attestation clause states that the will was signed by her in the presence of the witnesses ; but this is contradicted by the testimony of botli of these witnesses. The putting her finger upon the part of the will where the seal was, and acknowledging that the instrument was her last will and testament, was merely a compliance with the directions of the third subdivision of the fortieth section, which required her to declare the instrument which she asked the witnesses to attest, to be her last will and testament. But it did not supersede the necessity of an actual subscription in the presence of the witnesses, or an acknowl- edgment to each of them that she had previously subscribed it, or had directed some other person to sign it with her name which appeared thereon. In Remsen v. Brinckerhoff, 26 Wend. Rep. 331, Chief Justice Nelson, after stating the four requisites to a valid execution of a will, under the provisions of the fortieth section of the Revised Stat- utes on the subject, says, " It is obvious that any one of these four requisites, in contemplation of the statute, is to be regarded as essential as another ; that there must be a concurrence of all to give validity to the act, and that the omission of either is fatal." And as the will in that case was pronounced invalid, although sub- scribed by the testatrix in the presence of the attesting witnesses, for want of due publication in their presence, so in this it must be declared not to have been duly executed, because it was not sub- scribed by her in the presence of the witnesses, as is erroneously stated in the attestation clause ; and because there is no proof that she acknowledged in their presence that her name subscribed to it was put there by her, or by her direction, or in her presence. I regret to be compelled to come to this conclusion in regard to this particular case. For the circumstances are such as to render PROOF TO ESTABLISH WILL. 655 it highly probable that the will had been drawn under the direction of the testatrix, and that her name had been put to it by her re- quest after she had perfectly understood the contents of the will. She must likewise have supposed that the instrument which she acknowledged to be her last will and testament, and which she re- quested these witnesses to attest as such, was properly executed to carry into effect her pious and benevolent intentions in favor of the respondents, and of the other charitable institutions mentioned therein. And she may have had very good reasons for wishing to conceal from her brother-in-law, and his family, a knowledge of the fact that she was disposing of her property in this manner. But, as the requisites of the statute have not been complied with, this court can only pronounce the legal result of such non-compliance. It does not, however, appear to be a case in which a charitable society which has litigated in good faith, and has been defeated upon a technical objection as to the due execution of the will, should be charged with costs. But as the appellants have success- fully contested the case for the benefit of themselves and the other parties who may be entitled as the next of kin of the decedent, they should not be permitted to bear the burden of the costs per- sonally. A decree must therefore be entered, reversing that of the circuit judge and affirming the sentence and decree of the surrogate ; and directing the taxable costs of the appellants, Chaffee and Chapman, both in this court and before the circuit judge, to be paid out of the estate of the decedent, when letters of administration shall have been granted thereon. "VI. Proof required to establish the Due Execution of the Will. Jauncey v. Thome, 2 Barbour's New York Chancery Reports, 40. 1846. Where the statute in regard to the execution as well as the proof of the execution of wills is altered, after the making of a will and before its probate, the re- quirements in regard to the making of the will, in force at the time of its execution, must be observed, and those in force at the time of the probate must be observed in respect to the proof. 656 THE EXECUTION OP WILLS. It is not indispensable to the probate of a will, that all the witnesses within the reach of process should be able to testify that every requirement of the law, in force at^the time the will was made, was duly complied with, and that the testator was of sound mind. There is good authority for establishing a will in opposition to the testimony of all the witnesses upon this latter point. The acknowledgment of the testator in the presence of the witnesses that he executed the will, and wishes them to attest it as his will, is of the same effect as the actual signing in their presence. It was not necessary, under the English Statute of Frauds, that the witnesses should attest the will in the presence of each other. It is not important that the testator should acknowledge, in the presence of the witnesses, that he actually signed the will, but only that his name appear upon the instrument, and he acknowledge it to the witnesses as his will. The English courts have held that it is not essential that the witnesses should understand, at the time of their attestation, that the instrument is a will, or that the maker desires it to be attested by them as such. But the court here regard that as requisite under the English Statute of Frauds, and that it is also required by the current of American authority. The presumption in favor of the due execution of the will, when it appears on its face to possess all the legal requisites, is such that it may prevail over the testimony of all the witnesses to the contrary, where so far corroborated by circumstances, or other testimony, that the court is satisfied such was the fact. The facts will sufficiently appear in the opinion of the court delivered by — Walworth, Chancellor. Tiie will in this case was made, and the testator died, previous to the Revised Statutes ; but the will was proved before the surrogate, after tlie first of January, 1830, and before the passage of the act of May, 1837, concerning the proof of wills, &c. Laws of 1837, p. 524. The formalities requisite to the due execution of the will, therefore, were those which were required by the second section of the act of March 5th, 1813, con- cerning wills. 1 R. L. of 1813, p. 364. But the mode of proof must be that which was prescribed by the provisions of the Revised Statutes which were in force when the will was propounded for probate, before the surrogate, in 1835. The appellants' counsel, in their first point, insist that in a proceeding before the surrogate to prove a will of real estate, under the provisions of the Revised Statutes, all the witnesses to such will, who are living in the State, and of sound minds, must not only be produced and exam- ined, but that they must also corroborate each other as to the facts necessary to the valid execution of the will. In otlier words, that PROOF OF SAME. 657 each witness must be able to show that all the requisites of the statute which was in force at the execution of the will were com- plied with. This question I will first proceed to consider. The article of the Revised Statutes relative to wills of real prop- erty, and the proof of them, as it existed in 1835, provided that upon proof being made of the due service of the notice of the ap- plication to prove a will of real estate, the surrogate should cause the witnesses to be examined before him, and should reduce the proofs and examinations to writing. And that all the wit- nesses to such will, who were living in the State, and of sound mind, should be produced and examined ; and that the death, absence, or insanity of any of them should be satisfactorily shown to such surrogate. 2 R. S. 58, § 12. The thirteenth section directed that, when any one or more of the subscribing witnesses to the will should be examined, and the other witnesses were dead, or resided out of the State, or were insane, then such proof should be taken of the handwriting of the testator, and of the witness or witnesses so dead, absent, or insane, and of such other circumstances as would be sufficient to prove such will on a trial at law. The next section provided that if it should appear, upon the proof taken, that such will was duly executed, that the testator, at the time of executing the same, was in all respects competent to devise real estate, and was not under restraint, the will and the proofs and examinations so taken should be recorded, and the record thereof signed and certified by the surrogate. These were all the provisions of the Revised Statutes relative to the probate of a will of real property, where all or any of the subscribing wit- nesses were alive and could be examined. And in all such cases the allowing of probate by the surrogate, and admitting the will to be recorded, rendered the original will, or the record of the proof thereof, prima facie evidence of the due execution of such will, but subject to be rebutted by contrary proof. 2 R. S. 58, §16. It will be seen, by reference to these several provisions of the Revised Statutes, which are substantially the same with those which were previously in existence, except as to the tribunal in which the proof was to be taken, that nothing is said as to the necessity of each witness being able to prove that all the formali- ties required by law were complied with, where all the subscribing witnesses are alive and in a situation to be examined. The statute 42 . 658 THE EXECUTION OP WILLS. only requires, in such cases, that it should appear from the proof thus taken, that the will was duly executed by a testator who was competent to make a will, and who was free from restraint. Even upon a bill filed to establish a will of real estate, and where the decree is to be conclusive upon the rights of the heirs-at-law, the Court of Chancery does not require that each subscribing witness should be able to recollect, and prove, that all the formalities of the statute were complied with. The rule of the English Court of Chancery is, that upon such a bill all the subscribing witnesses, if living and competent to testify, must be called by the party seeking to establish the will, and must be examined by him ; so as to give the adverse party an opportunity to cross-examine them as to the sanity of the testator, and' the circumstances attending the execution of the will. Townsend v. Ives, 1 Wils. Rep. 216 ; Ogle V. Cook, 1 Ves. Sen. 177 ; Hudson v. Kersey, 4 Burn. Bccl. Law, 102. And the rule is the same upon the trial of an issue of devisavit vel non, awarded by the Court of Chancery. Booth v. Blundell, Coop. Chan. Cas. 136. But I have not been able to find any case in which it has been held to be necessary that all the witnesses should testify to the due execution of the will, and that the testator was of sound and disposing mind and memory at the time of the execution thereof. On the contrary, in the case of Lowe V. JoUiffe, 1 W. Black. Rep. 365, upon a trial at bar in the Court of King's Bench, on an issue of devisavit vel non out of chan- cery, the will was established, although all the subscribing wit- nesses swore that the testator was utterly incapable of making a will, or of transacting any other business whatever, at the time the will in controversy was supposed to have been executed. And all the subscribing witnesses in that case were subsequently convicted of perjury. See King v. The Nueys & Galey, id. 416. Our statute provides, in express terms, that if any one of the subscrib- ing witnesses is examined, and the others are dead or incompetent, or out of the jurisdiction of the State, the will may be admitted to probate, upon proof of the handwriting of the testator and of the witnesses who cannot be examined, and of such other circum- stances as would be sufficient to prove such will on a trial at law. I cannot believe, therefore, it would be a proper construction of this statute to reject the probate of a will, where all the subscribing witnesses are competent and are acttially examined, upon the very narrow ground that some of them cannot, after ten years, recollect PROOF OP SAME. 659 that all the requisites of the Statute of "Wills were complied with. The next question for consideration, therefore, is, whether it appears, iipon the proofs taken before the surrogate in this case, that the instrument propounded for probate as the will of William Jauncey was duly executed as a will of real estate. The second section of the act of March 5, 1813, in reference to the execution of wills of real estate, is the same in substance as the provision of the Statute 29 Charles II. c. 3, on that subject. And the decisions in the English courts, under the last-mentioned statute, especially such as were made previous to our separation from the mother country, are proper to be taken into consideration, in determining the question whether the instrument propounded is proved to have been duly executed, according to the require- ments of the act of 1813. The language of the last-mentioned act is, that " every such last will and testament shall be in writing, and signed by the party making the same, or by some other person, in his presence, and by his express direction ; and shall be attested and subscribed in the presence of such party, by three or more credible witnesses, or such last will and testament shall be utterly void." 1 R. L. 1813, p. 364, § 2. Two questions arose under the English statute, soon after its passage, which are to some extent involved in the decision of this case. The first was, whether it was necessary that the testator should actually sign the will in the presence of the attesting witnesses ; and the second, whether it was necessaiy that he should publish it, as a will, in the presence of such witnesses. Both of these questions arose in the case of Peate v. Ougly, Com. Rep. 197, on the trial of an ejectment suit, before Chief Justice Trevor, some thirty years after the passage of the statute. And if the recollection of the witness was to be relied on, as to what actually occurred at the execution of the will, his Lordship decided both those questions in the negative. Very little reliance, however, is to be placed upon that case, as a judicial de- cision, upon either of the questions referred to. For it was, at the best, a mere nisi prius decision ; and it appears to have been sub- mitted to the jury, as a question of fact, whether the provisions of the statute had been complied with. And, under the circumstances of that case, I think the jury were authorized to presume that the will was not only signed in the presence of all the subscribing wit- nesses, but that it was also published by the testator as his will, in their presence. Two of the witnesses were dead, and the survivor 660 THE EXECUTION OP WILLS. was examined twenty-seven years after the will was executed. It is hardly probable, therefore, after such a lapse of time, that he would recollect what occurred at the execution of the will. And the circumstances having passed from his mind, he might very naturally suppose he did not see the testator write his name to the will, or hear him tell the witnesses what the instrument was which they were called upon to attest tlie execution of. But the attesta- tion clause, which was in the handwriting of the testator, in that case, stated that the instrument which the witnesses were called on to attest, was signed, sealed, and published as his will, in their presence. In reference to the first question, however, the case of Lemayne V. Stanley, 3 Lev. Rep. 1, and the case in Skinner, Anon., Skin. Rep. 227, must have assumed the ground that an actual signing of the will, by the testator, in the presence of all the subscribing wit- nesses, was unnecessary ; though I think the first case was an erroneous construction of the statute, as to what a signing of the will by the testator really was. Independent of those cases, it has been deliberately settled, in England, for nearly a century, that the Statute of 29 Charles II. c. 3, did not require the testator to sign his will in the presence of the attesting witnesses, provided it was actually signed by him, previous to his acknowledgment and pub- lication of the will in the presence of all or each of those wit- nesses. In Stonehouse v. Evelyn, which came before Sir Joseph Jehyl, the Master of the Rolls, in 1734 (3 Peere Wms. Rep. 253), the proof was full that all of the attesting witnesses subscribed their names to the will in the presence of the testatrix. But one of them said he did not see her sign the will ; but she owned, at the time the witnesses attested it, that her name, signed thereto, was her own handwriting. His Honor held that, without doubt, that was sufficient. And the reporter adds, that on the same day he mentioned that decision to Justice Fortescue Aland, formerly a judge of the King's Bench, and then one of the justices of the Court of Common Pleas, who said it was the common practice, and that he had , so ruled two or three times, upon evidence, at the circuit ; and that it was sufficient if one of the subscrib ng wit- nesses swore that the testator acknowledged the signature to be his own handwriting. The question came before Lord MardwicJce, eighteen years afterwards, in the case of Grayson v. Atkinson, 2 PROOF OF SAME. 661 Ves. Sen. 454, and he decided that it was not necessary that the testator should sign the will in the presence of the witnesses ; but that an acknowledgment by him to the attesting fitnesses that it was his hand, was sufficient. Two years afterwards, the case of Ellis V. Smith, 1 Ves. Jr. 12, came before his Lordship, assisted by the Master of the Rolls, the Chief Justice of the Common Pleas, and the Chief Baron of the Exchequer. And tlie question was there deliberately decided that the acknowledgment of the testa- tor, before the attesting witnesses to a will previously signed by him, was equivalent to signing it before them, and was a good execution of the will. Since this last decision, in 1754, the law appears to have been unquestioned in England, that under the Statute of Charles II. it is not necessary to the validity of a will of real estate that the testator should have signed it in the presence of the subscribing witnesses. And this construction of the statute appears to have been followed in this State, and in most of the States of the Union which have adopted the language of that statute, in prescribing the formalities to be observed in the execu- tion of wills. It was also settled in England, at a very early day, that a will of real estate, attested by three witnesses, who at several times subscribed their names, in the presence of the testator and at his request, was valid, although all the witnesses were never present at the same time. Anon., 2 Clian. Cas. 109 ; Cook v. Parsons, Prec. in Chan. 184 ; Jones v. Lake, 2 Atk. 176, n. It is at least doubt- ful whether the decisions upon either of these questions were in conformity with the intention of the framers of the provisions, in the Statute of Charles, relative to the execution of wills of real estate. But they are in conformity with the letter of the statute, which only required that the will should be signed by the testator, but not that such signing should take place in the presence of the attesting witnesses. Nor did the statute, in terms, require .the witnesses to attest the will at the same time, and in the presence of each other, but only that the will should be attested by three witnesses, who should subscribe the same in the presence of the testator. These decisions had been so long acquiesced in as to have become a rule of property previous to the revolution. It is therefore too late to disturb them, in reference to any rights which had accrued under wills previous to the Revised Statutes, or even since, so far as the language of the statute has not been changed. 662 THE BXECOTION OF WILLS. This construction of the statute having been established, the question naturally arose what it was that the subscribing witnesses to the will were to attest : the fact that the testator had actually signed the instrument, and that he recognized or published it as his will, or only the fact that he acknowledged the execution of the instrument to which he requested them to subscribe their names as witnesses ; leaving the facts that it had been actually signed by him, or by his direction and in his presence, and that he intended it as a testamentary disposition of his property, to be supplied by other proofs, if necessary. Upon a careful examina- tion of the cases on this subject, in England, I am not prepared to say that the question as to the necessity of an admission of his signature, or of a recognition of the instrument by the testator as a will, to and in the presence of the attesting witnesses, at the time they signed their names to such instrument as witnesses, was definitively settled there previous to our declaration of independence. But in a comparatively recent case (The Trustees of the British Museum v. White, 3 Moore & Payne's Rep. 689 ; 6 Bing. Rep. 310, s. c), both branches of this question came before the late Chief Justice Tindal and his associates, and were deliberately decided by them. The case came up in the form of a special ver- dict found upon the trial of a feigned issue of devisavit vel non, out of the Court of Chancery. Of course there was no room for presumption that the witnesses, or any of them, had forgotten tlie circumstances attending the execution of the supposed will. By the special verdict, it appeared that the instrument, which upon its face purported to be the testator's will, was all in his hand- writing, except the signatures of the subscribing witnesses ; that immediately above their names there were written these words in his handwriting, " In the presence of us as witnesses thereto ; " that the testator had signed it before it was signed by the witnesses, or either of them ; that about five months before his death he requested two of the attesting witnesses to sign their names to the instrument, and they did so in his presence, but they did not see his signature, nor were they informed by him then, or at any other time, what was the nature of the instrument, or why they were requested to sign the same ; that about two months afterwards the testator requested the other subscribing witness to sign his name to the instrument, which he immediately did in the testator's presence, who then informed him that it was his will ; and that PUBLICATION OP SAME. 663 the testator was of sound and disposing mind and memory, at the time he signed the paper himself, and also at the times when the witnesses signed their names to the same. The court, upon a full argument, and after taking time to examine the questions raised, decided in favor of the validity of the will. The question again came before that court, about two years afterwards, and in sub- stantially the same form, in the case of Wright v. Wright, 5 Moore & Payne's Rep. 316, upon an issue ordered by the Vice- Chancellor. But the court informed the counsel for the defendant that they intended to adhere to the decision in the case of White v. The Trustees of the British Museum ; and that if the defendant was not satisfied with it, he could appeal to a higher tribunal, as the question was open to him upon the record. I am not prepared to go the whole length of these last two decisions. For they establish. the principle that, under the Statute of Charles, an instrument may be a valid will of real estate, although neither of the subscribing witnesses, at the time they attested its execution, knew or were informed that it was a will, or that it had been signed by the alleged testator, or by any one for him, so as to make it a valid will upon its being duly attested or signed by the necessary number of witnesses. What do the witnesses attest in such a case, where they are entirely ignorant of what the testator is intending to do, or what he has done, or what is the object of obtaining their signatures to the paper which is presented to them for that purpose ? Certainly nothing. For they neither attest the instrument as a will, which the testator has in fact, though without their knowledge, already signed, nor the fact that he has signed the instrument in their presence, nor that he has admitted to them that it had been signed by him before that time. Surely the attesting witnesses should see the testator, or some one for him, sign the instrument which they are called iipon to witness ; or the testator should either say or do something, in their presence or hearing, indicating that he intends to recog- nize such instrument or paper as one which has been signed by him, as a valid will, or as having been signed by his authority for the purposes therein expressed. At the same time, I do not deem it necessary that the testator should in terms declare that his name, signed to the will, was so signed by him, or that- it was so ' signed by his authority and direction, and in his presence. But the production of the will with his name subscribed to it, and in 664 THE EXECUTION OP WILLS. such a way that the signature could be seen by the attesting witnesses, and the request of the testator that they should witness the execution of the instrument by him, or as his will, would of itself be a sufficient acknowledgment of his signature to render the will valid, under the provisions of the act which was in force wlien this will was made. See Devisees of Eelbeck v. Granberry, 2 Hayw. Rep. 232 ; Hall v. Hall, 17 Pick. Rep. 373 ; Cochran's Will, 8 Bibb's Rep. 494 ; Ilott v. Genge, 3 Curt. Eccl. Rep. 172. It is a very different question, however, whether, to sustain and establish the validity of a will, the courts should hold it to be necessary for the subscribing witnesses to recollect and testify to the fact that all the formalities prescribed in the statute were actually complied with. For if this were required, very few devises of property would be supported unless the testimony of the witnesses was taken and perpetuated very soon after the wills attested by them were made. This, in many cases, would be wholly impracticable, as the testator frequently lives many years after he has executed his will. And where there is good reason to suppose the will has been duly executed, and that no fraud or want of testamentary capacity existed at the time it was made, justice to the dead as well as to the living requires that the declared wishes of the testator should not be defeated by the imper- fect recollections of the attesting witnesses, or by reason of their deaths or removal beyond the jurisdiction of the State. It is for this reason that the most liberal presumptions, in favor of the due execution of wills, are sanctioned by courts oi justice, where, from lapse of time, or otherwise, it may be impossible to give positive evidence on the subject. 'A will may, therefore, be sustained even in opposition to the positive testimony of one or more of the sub- scribing witnesses, who, either mistakenly or corruptly, swear that the formalities required by the statute were not complied with, if from other testimony in the case the court or jury is satisfied that the contrary was the fact. And where any of the witnesses are dead, or in such a situation that their testimony cannot be obtained, proof of their signatures is received as secondary evidence of the facts to which they have attested by subscribing the will as wit- nesses to the execution thereof. The same rule is frequently applied to the case of a subscribing witness who is called and sworn, but who, from defect of memory, has no recollection of the transaction, except that his signature to the will is genuine. The PROOF OP SAME. 665 decisions which have a bearing upon the question, whether the evidence, in this case, was sufficient to establish the fact that the testator subscribed and published the instrument propounded as his will, or recognized the same as having been signed by him, in the presence of the three subscribing witnesses, who signed their names in his presence, are very numerous ; and it may be useful, in considering that question, to refer to some of them. In the case of Hudson's Will, Skin. Rep. 79, which came before the Court of King's Bench, on a trial at bar, only five years after the Statute of Charles, the will was established against the testimony of two of the subscribing witnesses, who swore the testator did not execute the will, he being incapable of doing so, and that his mark was affixed by another guiding his hand, and that he said nothing, the court and jury being satisfied, from other evidence, that the will was duly executed. In the case of Hands v. James, Comyns' Rep. 531, where the witnesses to the will were all dead, it was left to the jury to presume that they subscribed as witnesses in the testator's presence, although that fact was not stated in the attestation clause. And that decision was followed in the subsequent cases of Croft v. Pawlet, 2 Stra. Rep. 1109, and of Brice v. Smith, Willes' Rep. 1. Previous to the English statute of July, 1837, 1 Vict. c. 26, for the amendment of the law with respect to wills, very few cases arose before the ecclesiastical courts, in England, calling for a construction of the laws relative to the execution of wills of real estate. But that statute requires the same formalities to be observed in the making of wills of personal property as of real estate. The ninth section of the act requires that the will shall be .signed at the foot or end thereof, by the testator, or by some other person, in his presence and by his direction, and that such signa- ture shall be made or acknowledged by the testator, in the pres- ence of two or more witnesses present at the same time, and that such witnesses shall attest and subscribe the will in the presence of the testator. And since the passage of that statute, several cases involving the question as to what evidence is requisite to establish a will under its provisions, have come before Sir Herbert Jenner Fust, tiie official principal of the Arches Court, and judge of the Prerogative Court of Canterbury. Although the decisions of tliat very able and distinguished judge and civilian are of no higher authority here than those of judges of other courts in 666 THE EXECUTION OP WILLS. England, and in our sister States, having the same experience and knowledge in testamentary cases, they are entitled to great consid- eration as judicial opinions upon the examination and decision of the question now under consideration. It will be recollected that the statute, 1 Vict. c. 26, requires that the signature of the testator shall be made or acknowledged by him in the presence of two or more attesting witnesses, present at the same time. And the decisions of Sir Herbert Jenner Fust, to which I shall refer, are mostly upon the question whether these reqxiirements of the statute had been complied with, in making the wills propounded for probate. In Chambers and Yatman v. The Queen's Proctor, 2 Curt. Eccl. Rep. 415, which came before the Prerogative Court in May, 1840, there were three witnesses to the will. One of them swore that it was signed by the testator in the presence of all of them, and that he then put his finger upon the seal, and said, " this is my act and deed," and then they witnessed it as a will, in his presence. Another testified to the acknowledgment of it as a will, but could not recollect that the testator signed it in her presence, or that he said any thing about his signature to it. And the third swore that he did not see the testator sign the will, but that there were a signature and a seal affixed to it ; and that when they were requested to witness the will, the testator pointed to the seal where his name was already written. The counsel for the crown con- tended that the will was not executed in conformity to the statute, as two of the witnesses swore that the will was not signed in their presence, and there was no direct acknowledgment of his signature, as such, by the testator. But the learned judge declared he was satisfied, from the evidence, that the will was signed by the testator in the presence of all the witnesses, and that two of them had forgotten the fact. And in the case of Gove v. Gawin, 3 Curt. 157, which came before the same court two years afterwards, the same learned judge pronounced in favor of the due execution of a will, upon proof by the scrivener, who drew and witnessed the will, that it was signed by the testator in the presence of him and of the other witness, although the latter, who was not examined until two years after the will was made, was confident that the will was not signed by the testator in his presence, and that noth- ing was said about his signature. In the case of Ilott v. Genge, id. 160, decided in the same PROOF OF SAME. 667 year, the probate of the will was rejected," the testator, at the time he requested the witnesses to put their names to it, having carefully- concealed the writing, so that they did not see his name, and having neither signed it in their presence, nor told them it was signed by him. In that case, however, Sir H. J. Fust admits there may be a virtual acknowledgment of his signature by the testator. He says, " It is not necessary that the testator should state to the witnesses that it is his signature ; the production of a will by the testator, it having his name upon it, and a request to the witnesses to attest it, would be a sufficient acknowledgmient of the signature, under the present statute." In the case of Gaze v. Gaze, id. 451, before the same court, in March, 1843, the testator produced to the attesting witnesses a will, all in his own handwriting, having his name and seal affixed, and requested them to sign their names under his, or " down here," pointing to a place just below his own name and seal. And the court held that this was a sufficient acknowledgment of his signature by the testator, although there was no certain evidence that the signature was in the testator's handwriting, and only one of the witnesses knew that it was a will when they were called on to attest it. The case of Blake v. Knight, id. 547, came before tlie same court about two months afterwards, and a similar decision was made. In that case the three attesting witnesses were examined ; and the substance of their testimony was, that the decedent did not sign the will in their presence, nor formally acknowledge his signature to them, nor did they recollect to have seen his signature ; that the first witness received notice that he, and his son and his apprentice, the three attesting witnesses, were wanted by the decedent to witness his will, and they went to his room accordingly ; that he there produced the will, which was written on one side of a sheet of paper, and spread it out upon the table before them, and said, " This is my will ; it is a small will, written on one sheet of paper, and all on one side : will you witness it ? " and that they then subscribed their names to it as witnesses, in his presence, no other person being in the room. It further appeared that the testator had formerly been a writer in an attorney's office, and that the will was in his own handwriting ; the attestation clause upon its face being in such a form as to show that all the provisions of the recent statute had been com- plied with in executing the will. His Honor said he had not a doubt 668 THE EXECUTION OP WILLS. that the name of the testator was signed to the will before the witnesses attested it, any more than if they had positively sworn to the fact, and that the memory of the witnesses had failed them, the transaction having taken place more than four years previous to their examination ; that the court could not safely trust to the memory of witnesses under such circumstances, but must attend to the facts of the case, and say whether it was satisfied that the name of the deceased was to the will when the witnesses signed, whether signed in' their presence, or signed beforehand and acknowl- edged in their presence. He therefore pronounced for the validity of the will. The like decision was made by him in July, 1843, in the case of Keigwin v. Keigwin, 3 Curt. 607. There the two sub- scribing witnesses testified that they were at work in the house of the testatrix ; that on the day of the date of the will she brought a paper into the room where they both were, which they identified as the instrument propounded for probate ; that she brought a pen and inkstand with her, and said to them, " I want you to srgn this paper," and pointed to the place where they were to sign ; that the paper was folded, so that they only saw her signa- ture, which was then affixed to it; that they both subscribed it, accordingly, in her presence ; that they had no recollection of her having pointed out her signature to them as being her name, but they were certain she did not say any thing in particular about her handwriting. The will had been prepared at the request of the testatrix by a friend, and left with her ; and he dated it on that day because she told him she should have some men to work for her at that time who could attest its execution. His Honor said the will was executed according to the requirements of the statute, and that there was a sufficient acknowledgment of her signature ; that it was not necessary for her to say, in express terms, " that is my signature ; " but it was sufficient if it clearly appeared that the signature was existent on the will when she produced it to the witnesses, and was seen by them when they did, at her request, subscribe their names as attesting witnesses. In the case of Cooper V. Beckett, id. 648, which came before the same judge a few days afterwards, he decided in favor of the will, upon the facts testified to by the attesting witnesses, and the appearance of the will itself, which was all in the handwriting of the testator, although both subscribing witnesses, two ignorant servants in the house, thought the testator's name had not been subscribed to the will PROOF OF SAME. when their subscriptions were made. I have doubts as to the correctness of this last decision, however, if the learned judge was right in supposing that, under the recent English statute, the signing of the testator must actually precede the subscriptions of the witnesses, and that it is not sufficient for him to sign the will the moment after, in their presence and under their cogni- zance. For the impression which the testimony in that case makes upon my mind, as to the matter of fact, is that immediately after the witnesses had subscribed their names, the testator took the pen and wrote his own name, saying to them at the same time, " this is my name in your presence ; " which any testator, who was ignorant of the previous decisions of the court upon the question might have supposed was the same thing as if he had signed his name the instant before the witnesses subscribed theirs. It may also be remarked, in relation to the last case, that the witnesses must have been examined within four or five months after tliey attested the execution of the will, which is also a cir- cumstance in favor of the probable accuracy of their recollections as to what actually took place. But a wrong conclusion, by a judge, upon a matter of fact, does not detract from the value of his opinion upon a question of law which is involved in his decision ; unless the legal principle decided by him would, if ■ established, have a tendency to lead the mind to wrong conclu- sions as to matters of fact. I have intentionally omitted to refer to several other cases in the Prerogative Court, which are to be found in Curteis' Eeports, having a bearing upon the question now under consideration, because they arose upon summary applications, and were decided ex parte. The only other case in that court to which I shall refer, was decided upon contestation, in June of the present year. It is the case of Le Bas v. Gregory & McCulloch, 10 Lond. Jur. Rep. 718 ; and it contains a reiteration of the principle embraced in the previous decisions, which I have stated more at length. I only refer to it, therefore, to show that down to this time the opinion of Sir Herbert Jenner Fust remains unchanged, that where there is an infirmity in the recollections of the attesting witnesses to a will, as to what took place at the time of its execution, the court does not require positive and affirmative evidence that all the formalities required by the statute were complied with ; but that it will look at all the circumstances of the case in forming 670 THE EXECUTION OP WILLS. its conclusions of fact on that subject. It also may be fairly inferred from this recent decision, that none of the numerous decisions in the Prerogative Court to which I have referred have been overruled or questioned in the Court of Appeals, which is the judicial committee of the privy council. The case of Hudson V. Parker, 1 Rob. Eccl. Rep. 24 ; 8 Lond. Jur. 786, s. c, decided by Dr. Lushington, in July, 1844, and referred to by the counsel for these appellants, upon the argument in the present case, is not in conflict with any of the decisions of the learned judge whose seat Dr. Lushington temporarily occupied, although he evidently doubts the correctness of the decision of the Court of Common Pleas in the case of White v. The Trustees of the British Museum. The cases in our own country are also in conformity to these decisions in the ecclesiastical courts in England. In Jackson v. La Grange, 19 John. Rep. 386, the question arose as to the due execution of a will after a lapse of twenty-five years. One sub- scribing witness was dead. Another, who was examined upon the trial, proved his own signature as a witness, but could not recol- lect whether all the subscribing witnesses were present. Nor could he remember any of the circumstances attending his own attestation, or the execution of the will by the testator; but he presumed it must have been executed in his presence from the fact that he had witnessed it. It appearing that the other surviving witness was alive and within the jurisdiction of the court, it was very properly held that he should have been called and sworn. But the late Chief Justice Spencer, who delivered the opinion of the court in that case, said, if the third witness had been called, and his recollection had also failed him, still, if he could have proved his signature, it would, upon proving the signa- ture of the testator, have been sufficient proof of the due execu- tion of the will to entitle it to be read in evidence ; that the law did not require impossibilities, and where a will had been executed a long time it was not ordinarily to be expected that the witnesses would be able to remember all the material facts. In the case of Pate's Adm'rs v. Joe, 3 J. J. Marsh. Rep. 113, in the Court of Appeals of Kentucky, the question arose upon an appeal from a decision of a County Court, admitting the will of T. Pate to be recorded, as fully proved. The testator, who lived in Kentucky, went to Virginia, and on his return was taken sick and died on the road. He fell in company with William Compton and PROOF OF SAME. 671 his family, consisting of his wife Polly and his brother Elias E. Compton, and travelled with them; and, being too unwell to ride on horseback, he got into their wagon and rode there. On the night the will was written he complained of being very sick, and expressed a wish to get to a house where he might write or have a will written. When they stopped, a room was procured, and Elias E. Compton was engaged in writing a will for him. The instru- ment produced for probate was in the handwriting of Elias, who was then dead, and the name of the testator was also in the same handwriting. And the will was attested by William Compton and his wife, and by his brother Elias ; only two subscribing witnesses being required by the laws of Kentucky. The signatures of the two brothers were in their own handwriting, but the name of Mrs. Compton, the third witness, was subscribed by her husband. She was examined as a witness several years after the occurrence, but could recollect nothing of the circumstances except that Pate was sick, and rode in their wagon, and was left on the road. Her husband stated that he had no recollection of having signed his name to the will as a witness, nor any recollection that it was acknowledged before him by Pate, or of seeing his brother write the name of Pate, or that the latter gave any directions to his brother to sign the will for him. He further stated that his habit was never to witness any instrument without seeiug the party executing it make his signature, or hearing him acknowledge the instrument ; from which circumstance he supposed Pate acknowl- edged the will in his presence, or he would not have attested it. But under what circumstances he witnessed it he could not recol- lect; nor had he any recollection of the fact of his signing his wife's name to the instrument as a witness, but he should not have done so without her consent. The will liberated the testa- tor's slaves when they should attain certain ages ; and it fell into the hands of one of the testator's sons, after his death, and was produced by the son on his being called upon to do so by a bill in chancery. Upon these facts the Court of Appeals decided that the will was sufficiently proved, and affirmed the decision of the County Court admitting it to probate. See also Bailey v. Stiles, 1 Green's Ch. Rep. 221 ; Jackson v. Van Dusen, 5 John. Rep. 144 ; Gwinn v. Radford, 2 Litt. Rep. 137 ; Alsey Howard's Will, 5 Mon- roe's Rep. 199. The case of Burwell v. Corbin, 1 Rand. Rep. 131, cited by the counsel for the appellants, was a decision by a divided 672 THE EXECUTION OF WILLS. court, and was virtually overruled in the subsequent case of Dudleys v. Dudleys, 3 Leigh's Rep. 436. And Judge Cabell, who concurred in the decision in the case of Burwell v. Corbin, admitted that the ground upon which he and two other members of the court proceeded in that case was wrong, and that their decision could only be sustained upon the ground that the case came before them in the shape of a special verdict, and that even then it should have been sent back for a new trial. The principle of the several decisions which I have referred to, upon the branch of the case now under consideration, remains unshaken by any conflicting decision of sufficient weight to induce me for a moment to doubt the correctness of such principle. Applying that principle to the testimony of the witnesses to this will, I think the evidence was sufficient to authorize the surrogate to find and declare, as a matter of fact, that the instrument pro- pounded was duly executed by William Jauncey, as a valid will of real estate. There is no pretence that the testator was not in the full possession of all his mental faculties, and perfectly competent to make a testamentary disposition of his estate with sense and judgment. It does not appear who drew the will.. For although it is stated in the answer to the petition of repeal and revivor that it was wholly in the testator's handwriting, that fact was not in evidence before the surrogate, and therefore ought not now to be taken into consideration in determining the question whether he decided correctly upon the evidence before him. But it clearly appears that the testator had in his possession a will, properly prepared for execution, purporting upon its face to dispose of property,, to a large amount, in this country, and also in the English funds ; that when he was alone with his barber, he pro- duced this instrument, and requested the barber to stay and witness his signature to it ; and that he went to the door of his room and called for the two other subscribing witnesses, who were servants in the house, to come into the room. And he particularly inquired for James Apps, who, as it subsequently appeared, he had understood was intending to return to England, and who, as he said, would be handy to prove his signature there. All this denotes care and deliberation, and shows that the testator himself perfectly understood what he was doing, and that he was undoubt- edly aware wliat was necessary to be done to execute the instru- ment produced by him as a valid will of real and personal estate. SUMMING UP OP TESTIMONY. 673 It does not distinctly appear whether the testator's name was signed to the will in the presence of Jones, who was the first witness, or had been previously signed to it. But that it was actually there when Jones attested the will, is eyident from his testimony. For he says that the testator, putting his finger on the signature and seal, declared that he acknowledged the instru- ment as his hand and seal, for the uses and purposes therein men- tioned. Jones then subscribed his name as a witness in the presence of the testator. The other two witnesses came in while Jones was there, and he thinks they also signed their names as witnesses, in his presence. Jones, who was examined some ten years after the transaction, and when he was about seventy-seven years old, thinks he did not know, at the time the instrument was executed, that it was a will, nor until a year or two afterwards, when the testator told the witness he wished to remind him that he was a witness to his will. That the witness is under a mistake in supposing he did not know that it was the testator's will at the time it was executed, is evident from the testimony of Robinson, the coachman," the last attesting witness. For he says Jones and Apps were both present when he witnessed it, although he did not see them sign their names, as their names and the name of the testator were there before he came into the room. But he says that when he attested it in their presence, the testator put a pen into his hand, and acknowledged and declared the instrument to be his will, and requested him to sign his name thereto as a subscribing witness, and he did so in the testator's presence. The testator at the same time remarked that James Apps, one of the witnesses, was going to England, and would be handy to prove the will there in case it should be necessary. The recollection of James Apps, the groom, appears to be still more indistinct than that of Jones, as to the particulars of the transaction ; for he does not remember that any other person than Mr. Jauncey was in the room while he was there. But he does recollect, and testify, that some one told him Mr. Jauncey wanted him in the parlor, that he went up, and he believes that the testator asked him if he was James, and he said yes ; that the testator then pointed to a paper on the table, and requested him to sign his name to it as a witness, under that of Jones, and he did so, in the testator's presence ; and he believes the testator told him, before he left tlie parlor, that the paper was his will. He also says the testator 43 674 THE EXECUTION OP WILLS. observed that he understood the witness was going to England, and if so he would be handy to prove his signature there, as he probably might be wanted for that business in England. Although this witness does not recollect the fact, I have no doubt, from his testimony and that of the other two witnesses, in connection with the circumstances to which I have before referred, that the same formality of acknowledgment was gone through with when Apps was asked to witness the will, as when Jones and Robinson wit- nessed it ; and that, at the time they attested the instrument, all the subscribing witnesses understood it was the testator's will which they were attesting by their signatures ; and that the tes- tator intended to admit that he had signed, sealed, and published it as such. The sentence and decree of the surrogate, admitting the will to probate, and to be recorded as a valid will of real estate, and the order of the circuit judge of the first circuit, affirming such sen- tence, must, therefore, be affirmed, with costs. We here adopt, as being of more weight than any thing we could say, the portion of the opinion of Bradford, Surrogate, in Peebles v. Case, 2 Bradford's Surrogate Reports, 226, 240, wherein he discusses the questions of law embraced in the foregoing opinion : — " When the witnesses to a will are dead, or have forgotten the circum- stances of the execution, the performance of the formalities required by stat- ute may, after proof of their signatures and that of the testator, be inferred or presumed from the recitals of the testatum clause. Chaffee v. Baptist Miss. Coilv., 10 Paige, 86; In the Goods of Leach, 12 Jurist, 381. On the supposition that Parsons and Smith have lost all recollection of the transaction, the court, if satisfied from other evidence that they did in fact witness the will, may admit it to probate. I have no doubt at all that, even when the subscribing witnesses corruptly deny the execution, and, a fortiori, where they are mistaken, the proof of the will may be supplied from other sources. It is an error to sup- pose that the law has invested the subscribing witnesses with absolute power to defeat the ends of justice. It would be a most dangerous doctrine, to hold that the validity of so important an instrument depends entirely on the honesty of the two witnesses, and that if they deny its execution the will inevitably falls. Such may often be the consequence in the absence of any other proof, but it is not a necessary consequence in law; such a tremendous power is placed in no man. The proof of a will abides by the same rules of evidence as prevail in all other judicial investigations. The question for the court is the factum of the instru- ment, and that may be proved in the very teeth of the subscribing witnesses. Suppose (by way of illustration) that a will duly executed, and subscribed by the testator with the witnesses, in the presence of a number of disinterested per- sons, were repudiated by the subscribing witnesses, would it not be competent to prove its due execution by these bystanders ? MODE OF PROYING SAME. 675 " I am not aware that any case precisely of this kind has before occurred ; but it has often been conceded that a will may be proved against the evidence of subscribing witnesses. The witnesses have frequently been contradicted as to particular facts ; such as capacity, the signature of the testator, &c. In Lowe v. Jolliffe, 1 Wm. Bl. 365, the three subscribing witnesses to the will, and the, two surviving ones to a codicil, and a dozen servants to the testator, all unanimously swore him to be utterly incapable of making a will ; and yet the jury were satis- fied of the perjury of all the witnesses except one, and the validity of the will was established. In Jackson v. Christman, 4 Wendell's R. 277, Justice Suther- land said : ' If the subscribing witnesses all swear that the will was not duly executed, the devisee may, notwithstanding, go into circumstantial evidence to prove its due execution.' In Hitch v. Wells, 10 Beavan, 84, one of the wit- nesses was dead, and his signature was proved. Another witness testified that he made his mark to the will, but did not remember that the testatrix signed it. But the other witness denied her signature, and swore that she could not write her name. Five persons were called to prove she could not write, and three to show the contrary. The judge and jury disbelieved her, and a verdict was ren- dered in favor of the will. On a motion for a new trial. Lord Langdale said : 'In a case where one witness is dead, another is not to be believed, and the third witness cannot recollect, every thing in favor of the instrument is to be presumed.' It is evident in this case that Baron Alderson, who tried the cause, and the Master of the Rolls, both acceded to the position that the will could be proved notwithstanding the denial of its execution by one of the sub- scribing witnesses. There are other cases which go to sustain the same doc- trine : Handy v. The State, 7 Har. & Johns. 42 ; Dudleys v. Dudleys, 3 Leigh, 436 ; Le Breton u. Fletcher, 2 Hagg. 668 ; Mackenzie v. Handasyde, 2 id. 211 ; Landon v. Nettleship, 2 Add. 246; Keating v. Brooks, 4 Notes of Cases, 253; and in the English ecclesiastical courts, even after the recent act of Victoria (1 Vict. c. 26), respecting the execution of wills, probate has been decreed where the witnesses have explicitly denied some of the formal requisites of due execu- tion ; lapse of time and other circumstances being laid hold of by the judge to show that the witnesses had forgotten or were mistaken. Chambers v. The Queen's Proctor, 2 Curteis, 433 ; Gove v. Gawen, 3 id. 151 ; Blake w,. Knight, id. 647 ; Burgoyne v. Showier, 1 Robertson, p. 5. But apart from all deci- sions, there seems to me abundant authority for the position I maintain, in the elementary principles of reason and justice. The law seeks the truth ; and the idea of clothing the evidence of any person with such a peculiar character that the opposing party is precluded from showing its falsity, is alike perilous and novel. As to the effect, nature, and character of their testimony, the subscribing witnesses to a will stand on the same ground as other witnesses, on the subject of contradiction. They are not presumed to be infallible, nor is their evidence conclusive. They have no immunity from contradiction ; and if untruth, mis- take, or want of recollection be alleged, it is not only competent to prove it, but, on its being proven, and the judge being satisfied of the validity of the will, decree of probate should follow. The counsel for the contestant urged that evidence of handwriting could not be taken to prove the signatures of the subscribing witnesses, except in the pre- cise contingencies mentioned in two sections of the statute ; that is, where the 676 THE EXECUTION OP WILLS. ■witnesses are dead, insane, out of the State, or incompetent to testify. 2 R. S. p. 78, § 9 ; Laws of 1847, v. 460, § 20. But these sections are directory only in the instances specified, and are not obligatory in other cases not specified. They are not exclusive of the power, necessarily resident in every court, to admit all competent proof material to a pending issue. An attempt vras made in the Re- vised Statutes to codify the law so far as it could well be done, in order to afford a convenient guide for surrogates in the administration of their powers and duties. So far as these directions go, they are to be followed ; but a case beyond their limit, and not provided for, remains to be dealt with accoiding to the general principles prevailing in all tribunals. Having jurisdiction of the subject-matter, the surrogate, where the course of procedure is not laid down, must dispose of it according to the established rules of evidence, unless he has been restrained from doing so by express statutory provision. The principal subject of jurisdic- tion, the probate of the will, carries every proper incident along with it, in all cases where the statute is silent as to the course of proceeding. Laws of 1837, c. 460, § 71. I am satisfied, therefore, that it was competent for me in this case to take proof of the handwriting of the testator and of the subscribing witnesses, or of any other facts and circumstances tending to show the witnesses were mis- taken, and that the will was duly executed ; and having come to the conclusion that the will was executed according to law, it is my duty to give sentence of p obate." The questions discussed under the general topic of the Execution of Wills are so thoroughly examined in the first volume of our work on Wills, p. 201 et seq., that we should not feel justified in repeating it here beyond a general statement of the results. The signing by the testator, unless controlled by special statute, may be upon any part of the instrument, at the beginning as well as the end. Lemaine v. Stanley, 3 Lev. 1 ; s. c. 1 Freeman, 688; Adams v. Field, 21 Vt. 266; s. c. ante, p. 614 ; Sarah Miles' Will, 4 Dana, 1 ; s. c. ante, p. 624. So, too, the testator may sign by his mark. Baker v. Deming, 8 Ad. & Ellis, 94. Or by his initials. Re Savory, 15 Jur. 1042. And it has been held sufficient even when the testa- tor did not use his own name in signing, but adopted some other name. Be Redding, 2 Rob. 339. Or when a wrong name was written against the mark. Be Clarke, 4 Jur. n. s. 243. But the testator must do some act upon the paper, with the purpose of authenticating it by his signature. If the mark was made for some other purpose, it will not be sufficient. In the Goods of Enyon, 21 W. R. 856. So the acknowledgment by the testator to the witnesses that a sig- nature made on the will, at some former time, is his act, or that he desires them to attest the complete instrument when produced by him as his will, is sufficieni evidence of execution by him. White v. British Museum, 6 Bing. 310; 7 Bing. 457 ; 1 Redf. Wills, 218 et seq'. ; and cases cited. As to the attestation by the witnesses of the execution by the testator, there does not seem to be any indispensable requirement that any formal testimonium or attestation clause should appear upon the will, or that the names of the wit- nesses should appear upon any particular part of the instrument, unless controlled by some express statutory requirement. Roberts v. Phillips, 4 Ellis & Bl. 450. And a defective attestation clause is, perhaps, worse than none, upon the maxim. SUMMARY OP THE LAW. 677 Expressio unius est exclusio alterius ; but even in that case the authorities are very numerous that the defect may be supplied by any proof or presumption which is satisfactory to the triers. So, too, the mere forgetfulness of the witnesses in re- gard to any particular requisite having been complied with, raises no presumption against the will; such fact being so likely to occur in the lapse of years, and espe- cially when the attention of the witnesses was not particularly called to the detail of the legal requirements at the time of their attestation. It seems to be entirely well settled that, in the absence of all proof, the will appearing to possess upon its face all the legal requisites, the presumption omnia rite acta will apply, as in other cases, even where the attestation clause is general, or defective, or wholly omitted. Trott «. Skidmore, 6 Jur. jsr. s. 760 ; Croft v. Pawlet, 2 Strange, 1109. And where the attestation clause is regular, enumerating all the particu- lars of due execution, it will prevail even against the testimony of the witnesses. Bayliss v. Sayer, 3 Notes Cas. 22 ; Beckett v. Howe, L. R. 2 P. & D. 1 ; Wright V. Rogers, L. R. 1 P. & D. 678; Jauncey v. Thorne, 2 Barb. Ch. 40; s. c. ante, p 65.5 ; Griffiths v. Griffiths, L. K. 2 P. & D. 300. The formal request of the testator to the witnesses to attest his execution is not deemed important- It will be the same if any other one makes the request in his presence, and his conduct will affiard the same evidence of his request as if it were formally expressed by himself or another in his presence. Inglesant v. Inglesant, 22 W. R. 741 ; s. c. L. R. 3. P. & D 172. It is here held that, if one who is aiding the testatrix in the execution of the will direct the witnesses where to sign their names upon the will, before signed by the testatrix, it will be suffi- cient, the testatrix being present and not objecting, although he do nothing either by word or act. Allison v. Allison, 46 111. 61. The English courts make no distinction between the witnesses and the testator, as to the mode of -signing, except that the witnesses must either sign their names, or do some act equivalent, at the very time of the execution or acknowledgment of the will by the testator. It will not be sufficient for them to acknowledge their signatures made at some former time. Hindmarsh v. Charlton, 8 H. L. Cas. 160; Chase v. Kittredge, 11 Allen, 49 ; s. c. ante, p. 63S. For a review of the ■ authorities in regard to the attestation of the witnesses, see 1 Redf. Wills, 229-243. We have had occasion repeatedly to express our conviction that the English courts had given an essentially false construction to the Statute of Frauds, in regard to Wills, in holding that it was not indispensable to the due execution of a will under that statute, that the witnesses should, in any way, be made aware that the instrument they were witnessing was in fact the will of the maker. White V. British Museum, siipra. But we refer to the very satisfactory opinion of Chancellor Walworth in Jauncey v. Thorne, 2 Barb. c. 40; s. c. ante, p. 665, as expressing our own views in a far more authoritative manner than wo could expect to do. It seems singular that, after, by the decision in White v. British Museum, supra, the English courts had removed every vestige of distinction between the witnessing of the execution of a will and any other instrument, they should still attempt to maintain many other things resting wholly upon that distinction, which were no doubt intended to be maintained under the statute, treating the witnesses' act, in attesting the execution of a will, as a quasi judicial act, authenticating, in a formal and solemn manner, not only the execu- 678 NUNCUPATIVE WILLS. tion by the testator, but that he was, at the time, of disposing mind and memory and in the exercise of his free-will ; all of which is mere sham, of course, upon the theory that the witnesses need not know that the instrument is a will which they are called to attest. And this seems to be the view of Mr. Justice Thomas in Baxter «. Abbott, 7 Gray, 71; wherein he declares that the attestation of a will by the witnesses is no evidence that they regarded the testator of sound, disposing mind at the time. Of course it is not, when it is not required that they should attest the instrument as a will. The same degree of clear and invincible logic would have led the courts to declare, one would suppose, that the attesting witnesses to a will shall not be required to make their signatures, at the time, by some act then and there done, and not by way of adoption. The fact that Chan- cellor Walworth considers that the witnesses must know that they are authenticat- ing a will at the time of their attestation, as shown by his opinion in Jauncey v. Thome, supra, sufficiently explains his views in regard to their virtually certifying to the sanity of the testator at the time of executing the will, and how he comes to regard it as discreditable for them afterwards to testify that such was not the fact. But all this seems absurd, if the witnesses are not required to know that they are attesting a will. Scribner v. Crane, 2 Paige, 147-149 ; 1 Redf. Wills, § 98, pi. 6, n. 41. VI. NuNcuPATiTE Wills. The subject of nuncupative wills is constantly becoming more important in the American States, in consequence of the continued increase of the numerical force of the army and navy ; and such cases will now be liable to continue to be of frequent occurrence, as they have been since the late civil war. In the absence of all statutory provisions controlling the mode of executing testamentary" dispositions of property, there is no essential importance in their being made in writing. Hence, before the Statute of Frauds in England, 29 Car. II. c. 3, § 19 et seq., nuncupative wills were held valid. Eolfe v. Hampden, 1 Dyer, 53 b, pi. 18 ; Brooke v. Warde, 3 id. 310 b, pi. 81. And although the statute did not posi- tively declare such wills inoperative, it restricted them within such rigorous limits that they were seldom attempted to be maintained. But the English Statute of Frauds expressly excepted the wills of soldiers and sailors from the operation of the statute, and provided, § 23, " that any soldier in actual military service, or any mariner or seaman being at sea, may dispose of his movables, wages, and personal estates, as before the making of this act." And this pro- vision has been incorporated into the statutes of a large proportion INDISPENSABLE REQUISITES. 679 of the American States. Some of the American statutes embody the provisions of the English statute, restricting the mode of exe- cuting and the extent of the operation of nuncupative wills, in ordinary cases ; and some of the State statutes restrict such wills entirely to the cases of soldiers and seamen. Gen. Stat. Mass. c. 92, § 9, p. 477. We have deemed it expedient not wholly to omit this kind of will in discussing the execution of wills. Among the early American cases upon this topic none, probably, ranks so high as the following : — 1. Prince v. Hazleton, 20 Johnson's Reports, 502. 1822. A nuncupative will, since the time of Henry VIII. in England, has been allowed to be made only when the testator was in extremis, and after the testator is so near his decease that he durst not delay to make his will in writing, in the ordinary mode, lest death might overtake him; The English Statute of Frauds, 29 Car. II., has so far restricted the right to make, and the mode of making, nuncupative wills, that it has not since that date been practised in England, or in New York, where that statute has been re-enacted, except "where the testator is surprised by sudden and violent sickness." And in Connecticut a similar rule is. adopted. There is a great similarity between nuncupative wills and gifts mortis causa ; which latter have been defined, as where a man lies in extremity, or being sur- prised by sickness, and not having an opportunity of making his will, but lest he should die before he could make it, gives away personal property with his own hands. If he dies, it operates as a legacy ; if he recovers, the property reverts to him. Hence the conclusion that a nuncupative will is not good, unless it be made when the testator is in extremis, or overtaken by sudden and violent sickness, and has not time or opportunity to make a written will. This will not apply to any lingering disease, however fatal, until at least the approach of the last extremity; since, ordinarily, one in such a disease is under no stress of necessity to make such a will or none at all. It must come to the last day, if not to the last hour, in such a lingering sickness, to justify making a nuncupative will. If the testator recover, even when he has made a nuncupative will in all due formality, it becomes of no force. [But see the English Statute of Frauds, 29 Car. 11. c. 3, § 20.] The facts in the case sufficiently appear in the opinion of the court delivered by — Kent, Chancellor. The question to be discussed is, whether the nuncupative will of William Jones, as stated to have been made on 680 NUNCUPATIVE WILLS. the 11th of April, 1820, can be admitted to probate, as being valid in law. It becomes a complicated question, under the circum- stances, and involves in the inquiry matter of fact mixed with mat- ter of law. I shall consider it to be my duty to speak frankly and freely on the whole subject of the case ; but, at the same time, with a sincere respect for the character of the court whose opinion is now under review, and from which I shall be obliged very greatly to dissent. William Jones was an Irishman by birth, and a religious Catholic by profession. He was born in the County of Dublin, in Ireland, and received a school education about thirty years before his death, and which carries us back to the year 1790. He had then living parents, brothers, and sisters, and he was the youngest of the family. He was apprenticed to a house-carpenter in the city of Dublin, and served a regular apprenticeship of seven years. When this service expired, he worked as a journeyman for nine or twelve months, and then emigrated to the United States. This brings us, in the his- tory of his life, to the year 1798, and perhaps that fact may enable us to give some probable solution of the only circumstance that seems (if we except the will) to cast any shade over the memory of this man ; I allude to the change of his paternal name, O'Con- nor, for that of Jones. It does not appear, precisely, when he phanged his name ; but I refer it back to that period, as the proba- ble time, and presume that he and his family were more or less implicated in the peril of the rebellion which broke out in Ireland in 1798, in consequence of an ill-fated attempt to effect a revolution in that kingdom. It is probable that he may have emigrated for safety; and, for greater safety, laid down the name of O'Connor, which was then memorable in the Irish annals, on the side of the unfortunate. But, be this conjecture as it may, we find him first at New York ; then for two years at Savannah ; then living for twelve or fourteen years in the island of Cuba, and learning the Spanish language, and where he probably made his fortune. He is next traced, on his return to the United States, to the cities of Baltimore, Philadelphia, and New York; and in all of them he seems to have had business, pecuniary concerns, and friends. These are the few and imperfect sketches of his biography to be selected from the case, before we find him rich in the fruits of his enterprise, but sick with a disease of the liver, at the boarding- house of Mrs. Fox, in Cherry Street, in New York, the latter end of March, 1820. INDISPENSABLE REQUISITES. , 681 Jones, while at the house of Mrs. Pox, claimed to be worth, alto- gether, 165,000 in property, existing in New York, Philadelphia, Baltimore, and the island of Cuba ; and to show that this claim had pretty fair pretensions to truth, there was actually found at his lodgings, at his death, bank books showing deposits to his credit, in one or more banks of New York, to between thirteen and four- teen thousand dollars. He had been sick at Mrs. Fox's about five weeks, when he is said to have made the will now under consideration. During that time he had one Ellen Taylor, a colored woman, for his hired nurse ; and there was a Mrs. Hazleton, who had rooms and boarded in the same house, who also acted as his nurse. Whether Jones ever saw or heard of Mrs. H. before he came to board at Mrs. Pox's does not appear, nor have we in the case any distinct lineaments of the character which Mrs. H. sustains, or the business or purpose of her life. She rented tlie two front rooms in , the boarding-house ; and yet, her brother says, she followed no kind of business. SJie has had two husbands, and her present one is said to be a seafaring man, by one of her witnesses ; and another of them says that he had been voyages at sea, and had been on the gaol limits, and was then following his trade of a whitesmith at Savannah. Why she lives in this detached situation, without a family of her own, and a husband to live with and provide for lier, as is quite common with married persons, must be left to conjecture. She was able all at once, and, as it would seem, without any ade- quate cause, and without any remarkable display of goodness, or even of attention, to gain a wonderful ascendency over the affec- tions of this sick man. If her story be true and the will genuine, she obliterated from Jones' breast the sense of friendship, the chari- ties of religion, the deep-rooted traces of national affection, every tender recollection of tlie ties of blood, of his natal soil, of the school-fellows of his youth, of father and mother, brother and sis- ter, relative and friend. He was persuaded at one nod to pour the accumulated treasures of his varied life into the lap of tliis mysterious woman, — the acquaintance of a day! The will, as certified by the four witnesses, is in these words : " I now say, as I have repeatedly said before, that I leave all the property I am possessed of to Mary Hazleton. I do this in conse- quence of the good treatment and kind attentions I have received from her during my sickness. She is wortiiyof it. No other per- 682 NUNCUPATIVE WILLS. son shall inherit my property. I wish you all in the room to take notice of this." This will carries marks of fraud on its very face. Let us exam- ine it attentively. This sweeping donation is made for what ? For good treatment and kind attentions received from her during his sick- ness. The sickness had lasted only five weeks, and it was not so bad but that he was able occasionally to ride out. No person ap- prehended any immediate danger. He had a hired nurse, a colored woman, who was by him totally forgotten. What could this other woman have possibly done, in the course of five weeks, to awaken in any rational mind a sense of such enormous obligation, or to call forth such stupendous remuneration ? I am forcibly struck with the folly and falsehood of the motive assigned. But the will goes on, and adds, She is worthy of it; and where does her great merit appear, and from what circumstance does she entitle lierself to this extravagant eulogy ? Tlie very declaration that she was worthy to possess all his estate, proves that Jones must have been insane, or that the whole is a base fabrication. The will goes on further, and says. No other person shall inherit my property. And why these words of special exclusion of the rest of the world ? They seem to imply a heartlessness and misanthropy very unhat ural and very improbable for any man to express, in the contem- plation of death, and who was in the enjoyment of the comforts and the smiles of fortune ; and especially for a native-born Irishman, who was in the midst of his emigrant countrymen, and could not but have heard and felt the claims of religion, of charity, of the widow, and the orphan. He then adds, Jzyi's^ you all to take notice of this, — a speech which looks so much like contrivance that it does, of itself, throw a suspicion over the whole piece. This man must have been previously told that the statute required that, in making a nuncupative will, the testator must hid the persons pres- ent, to hear witness that such was his will. It was made in the mid- dle of the day, when he was quite comfortable, and far from the apprehension of death ; and, in this respect, with all punctilious and technical adherence to forms. It had the requisite number of witnesses, and the address to the bystanders. Jones must have deliberatively determined on a nuncupative instead of a written will, and have previously known and studied all the circumstances that were requisite to make it valid ; or else this will has been since got up for him, like a puppet-show, by the art and cunning of some juggler behind the scene. INDISPENSABLE REQUISITES. 683 [His Honor here went minutely and at large into the examina- tion of the testimony in the cause, and particularly of that of the four witnesses to the will ; and observed that, from the nature, the improbabilities, the inconsistencies, and the absurdity of the story, and the character and conduct of the witnesses, he drew the con- clusion that the testimony of those witnesses was utterly unworthy of credit, and that the will was evidently the production of fraud and perjury. After having disposed of the question of fact, his honor proceeded as follows : — ] But if we were to admit, against the truth of the fact, that the will of the 11th of April was actually and fairly made, according to the certificate of the four witnesses, it would then become a ques- tion of law whether it amounted to a valid nuncupative will. A nuncupative will is defined by Perkins (§ 476), in his book, which was published under Henry VIII., to be properly when the testator '■'■lieth lanc/uishing for fear of sudden death, dareth not to stay the writing of his testament; and, therefore, he prayeth his curate, and others, his neighbors, to bear witness of his last will, and declareth by word what his last will is." So, again, in Swin- burne, p. 32, whose treatise was published in the time of King James I., it is said, that tliis kind of testament is commonly made when the testator is now very sick, weak, and past all hope of re- covert/. I do not infer from these passages, that unwritten wills were always bad at common law unless made in a case of ex- tremity, when death was just overtaking the testator. In ignorant ages there was no other way of making a will but by words or signs. Reading was so rare an accomplishment in the earliest ages of the common law, that it conferred great privileges, and the person who possessed it was entitled, under the name of benefit of clergy, to an exemption from civil punishment. But these ancient writers mean to be understood that, in the ages of Henry VIII., Elizabeth, and James, letters had become so generally cultivated, and reading and writing so widely diffused, that nuncupative wills were properly according to Perkins, and commonly according to Swinburne, con- fined to extreme cases, and to be justified only upon the plea of necessity. And this has been the uniform language of the English law writers from that time down to this day ; so that it has become the acknowledged doctrine, that a nuncupative will is only to be tolerated when made in extremis. Thus in Bacon's Abridgment, which was first published in 1736, and compiled chiefly from mate- 684 NUNCUPATIVE WILLS. rials left by Grilbert, Lord C. B., a nuncupative will is taken from Perljins, and defined to be when a man is sick, and for fear that death, or want of memory or speech, should surprise him, that he should be prevented, if he stayed the writing of his testament, desires his neighbors and friends to bear witness of his will, and declares the same presently before them. 7 Bac. Abr. by Gwillim, 305. The same definition is adopted by Wood, in his laborious worlc on Con- veyancing, vol. vi. 574 ; and in Blackstone's Commentaries, vol. ii. 600, 501, a nuncupative will is defined to be one declared by the testator in extremis before a sufficient number of witnesses. After reciting the substance of the provisions of the Statute of 29 Charles II. (and which we have re-enacted), he adds : " Thus has the legislature provided against any frauds in setting up nuncupa- tive wills, by so numerous a train of requisites that the thing itself has fallen into disuse, and is hardly ever heard of, but in the only in- stance where favor ought to be shown to it, — when the testator is sur- prised by sudden and violent sickness." And while I am citing so many English definitions of nuncupative wills, it cannot be thought useless, and will not be deemed unacceptable, that I should also refer to the very respectable opinion of the late Chief Justice of Connecticut, who declares, when speaking of nuncupative wills as understood in the English law, that they are allowed only in cases wliere, in extreme and dangerous sickness, the testator has neither time nor opportunity to make a written will. 1 Swift's System, 420. It appears to me, that these various writers must be satisfactory to every one, as to the true sense and meaning of a nuncupative will under the English law. It is not easy to recur to more accu- rate sources. The probate of wills being in England a matter of ecclesiastical cognizance, cases on that point rarely appear in the reports of decisions in the courts of common law. I have, how- ever, been able to select two or three cases of nuncupative wills, which I shall submit to the consideration of the court. Coles V. Mordaunt, 4 Vesey, 196, note, was the case of a nuncu- pative will, in the twenty-eighth year of Charles II. ; and it is well worthy of notice, that this was only one year before the 29 Charles II., when the statute relating to nuncupative wills was passed, and is said to' be the principal case which gave rise to that statute. The case was this : Mr. Cole, at a very advanced age, married a young woman, who, during his life, did not conduct her- INDISPENSABLE REQUISITES. 685 self with propriety. After his death she set up a nuncupative will, said to have been made in extremis (for these are the words used in the report of the case), and by which the whole estate was given to her, in opposition to a written will made three years before, giv- ing £3,000 to charitable uses. The nuncupative will was proved by nine witnesses ; but the Court of Probates rejected the will, and, on appeal to the delegates, a trial was had at the bar of the King's Bench, and it appeared that most of the witnesses for the nuncu- pative will were perjured, and Mrs. Cole herself was guilty of sub- ornation of perjury. It was upon the occasion of this shocking and foul conspiracy that Nottingham, Lord Chancellor, said, " he hoped to see one day a law that no written will should ever be revoked but by writing." He was gratified in seeing such a law the suc- ceeding year ; and I will venture most respectfully to add, that if this nuncupative will be established, I should also hope to see one day a law that no nuncupative will should be valid in any case. The case I have cited contains a monitory lesson ; and it very much resembles, in its principal features, the one before us. In Philips V. The Parish of St. Clements, Danes, 1 Eq. Cas. Abr. 404, pi. 2, which was cited upon the argument, and arose in 1704, one Doctor Shallmer, by will, in writing, gave £200 to the parish, and Prew, a reader in the church, coming to pray with him, he said, he gave £200 pounds more towards building the church, and died on the next day. This was a case of a nuncupative will which only failed for want of three witnesses ; but this testator was evidently in extremis. The particulars are not stated, except only that an oflBcer of the church came to pray with him, and that he died the succeeding day ; but those two circumstances well warrant the infer- ence. Tliere is a very close analogy between these nuncupative wills and a gift upon the death-bed, or a donatio causa mortis ; and these gifts are defined by the Court of Chancery in Hedges v. Hedges, Prec. in Ch. 269; Gilbert's Eq. Rep. 12, in the very terms of a proper nuncupative will. A donatio causa mortis is where a man lies in extremity, or, being surprised by sickness, and not having an opportunity of making his will, but lest he should die before he could make it, gives away personal property with his own hands. If he dies, it operates as a legacy ; if he recovers, the property reverts to him. Upon the strength of so much authority, I feel myself warranted 686 NUNCUPATIVE WILLS. in concluding, that a nuncupative will is not good, unless it be made by a testator when he is in extremis, or overtaken by sudden and violent sickness, and has not time or opportunity to make a written will. The Statute of Charles II., so often referred to, and which we have literally adopted, requires a nuncupative will to be made by a testator in his last sickness, and in his own dwelling-house, or where he had been previously resident for ten days, unless sur- prised by sickness on a journey or from home. The last sickness, in the purview of the statute, has been always understood (for so I infer from the cases cited) to apply to the last extremity men- tioned in the books ; and it never was meant to uphold these wills made when there was no immediate apprehension of death, and no inability to reduce the will to writing. A case of necessity is the only case, according to Blackstone, in which any favor ought to be shown them. If they are alleged to have been made in a case un- accompanied with necessity, the presumption of fraud attaches to the very allegation. Let us suppose, by way of illustration, the instance of a person gradually declining under the operation of some slow-paced disease, as the affection of the liver, or the con- sumption of the lungs, or the dropsy, or the cancer. The patient is himself, we will suppose, under no immediate apprehension of death, nor is any such alarm excited in others. He is comfortably seated in his chamber, in the midst of a populous city, and with ample means to command every kind of assistance. He has had a fair common education, and knows well how to read and write ; he has been a man of good understanding, habits of business, and of successful enterprise, and has accumulated a fortune ; he is well versed in the knowledge, and in the affairs of mankind ; he has pen, ink, and paper at hand, with an adroit physician at his elbow, and a favorite friend at his side, on whom he wishes to bestow his fortune ; he is in the middle of life, with his intellects perfectly sound ; he proposes, or it is proposed to him, to make his will. Would such a man, in such a case, ever dream of making a nun- cupative will ? Would any honest or discreet friend ever advise him to it ? If that should be his wish, or if that should be the sug- gestion of others, would the law tolerate such an indulgence, under the notion that he was in his last sickness ? Surely the good sense of the law, as the books explain that law, and the cautious and jealous provisions of the Statute of Frauds, never intended a nun- cupative will for such an occasion. The law wisely discriminates INDISPENSABLE REQUISITES. 687 between written and unwritten wills, and permits the latter only in cases of urgent necessity. To abolish that distinction would be to abolish protection to property, to encourage frauds and perjuries, and to throw us back upon the usages of the unlettered ages. If nuncupative wills can be permitted at all, in the cases of chronic disorders, which make silent and slow, but sure and fatal, approaches, it is only in the very last stage and extremity of them. In no other period can such a disorder be deemed, within any rea- sonable construction of the Statute of Frauds, a man's last sickness. Such diseases continue for months, and sometimes for years. In one of Captain Cook's voyages, he states, that he lost his first lieu- tenant, Mr. Hicks, near the conclusion of the voyage of three years, and almost within sight of the English coast. But he adds that, as his disease was the consumption, and as it existed when he left England, it might be truly said that he was dying during the whole voyage. Wliat would the law call that man's last sickness ? Not the whole voyage surely ; and, probably, it would be narrowed down to the last day, and to the last hour, of his existence. We must give a reasonable interpretation to the statute, in reference to the mis- chief, and to the remedy. We cannot safely apply a man's last sickness to the whole continuance of a protracted disease, without giving to the statute an absurd construction. I do, therefore, most confidently insist that Jones was not in this last sickness on the 11th of April, within the sense or within the policy of the statute, and that he was not then entitled to make a nuncupative will. There is one other consideration that imparts to this subject of nuncupative wills a momentous character, and ought to incline us to give to them as little countenance as possible. As soon as a nun- cupative will is made, it becomes the interest of the legatee that the party's sickness should prove to be his last sickness ; for, if he recovers, the will, of course, falls to the ground. Not so with a written will. That remains good until revoked, and it cannot be revoked but by writing. Let us, for one moment, pause over this consequence of nuncupative wills, and observe with what a dele- terious influence they must suddenly act upon the heart, and what a powerful appeal they at once make to the selfish and dark pas- sions of the human mind. The title of the legatee depends alto- gether upon the precipitate death of the testator. Every day that liis life is prolonged more and more impairs the character of the will, and it vanishes if he becomes convalescent. Suppose the tes- 688 NUNCUPATIVE WILLS. tator was understood to possess a large amount of cash in hand, and that he gives it all, by a nuncupative will, to a stranger, to whom the law would not have given it. Suppose that stranger to be his physician, or as, in the present case, his nurse, what hold has the testator on her fidelity, her kindness, or her integrity ? Her interest and her wislies (if indeed her wishes procured the will) must be to destroy, and not to heal, her benefactor. The legacy operates as a bounty upon 'his death. One cannot contem- plate a nuncupative will under this aspect without sensations of horror. Well might such a man exclaim, as Jones is said to have done repeatedly, " My life depends upon that woman." I am accordingly of opinion, both upon the law and upon the fact, that the decree of the Court of Probates, directing the nun- cupative will of William Jones to be admitted to probate, was erroneous, and ought to be reversed ; and that the decree of the Surrogate of the city and county of New York, of the 17th October, 1820, directing the application to admit the said nuncupative will to probate to be dismissed, and that letters of administration of the goods, chattels, and credits which were of William Jones, de- ceased, be granted and issued, according to law, as in cases of intes- tates, be confirmed. Spencer, C. J., said, that he concurred in opinion with the Chan- cellor, that the decree of the Court of Probates ought to be reversed, on the ground that the alleged nuncupative will was not made while the testator was in extremis ; and because it appeared, from all the evidence in the case, that when the alleged will was made he did not think himself, nor did any other person think him, to be in any immediate danger of dying ; and because there was ample opportunity to make a will in writing, had the supposed testator been so disposed. 2. jEx parte Thompson, 4 Bradford's Surrogate Reports, 154. 1856. Nuncupative wills were held valid at common law, but were required to be made in the last sickness, at an early day. Such wills, made by soldiers or seamen in actual service, are excepted from the provisions of the English Statute of Frauds, and from the New York Revifed Statutes. TO WHAT EXTENT ALLOWED. 689 Nuncupative wills made by soldiers and seamen in actual service are the only wills of tliat character now recognized as valid in the State of New York. This kind of will is borrowed from the Roman civil law, and is restricted to those soldiers and seamen who are in actual service. It applies to all ranks and grades in the service. A cook, on board an Atlantic steamer, lying in the harbor at Bremen, is entitled to make such a will. No particular number of witnesses is required to the validity of such a will, if the court are satisfied with the proof. The facts in the case sufficiently appear in the opinion of the court by — Bradford, Surrogate. The deceased, who was a cook on board of the steamship " Hermann," departed tl)is life at sea on the third of February last, while on the way from Bremen to Southampton. Two days before, when the vessel was lying at the wharf at Bremen, he told Frederick Pearson that he wished the money belonging to him, on deposit in the Seamen's Savings Bank in the city of New York, to be sent to his mother, residing at Glasgow in Scotland. Tliis declaration was made in his last sickness, when the decedent expected to die, and with the intention of making a posthumous disposition of his property. Is this a good nuncupa- tive will ? A nuncupative will, so termed, a nuncupando, that is, from naming an executor by word of mouth, is a verbal testamentary declaration or disposition. Swinburne, pt. 1, § 12, pi. 1 ; Godolph. pt. 1, c. 4, § 6. By the common law, it was as valid in respect to personal estate as a written testament. A will could not only be made by word of mouth, but the most solemn instrument in writing might be revoked orally. In a rude and uncultivated age, to have required a written will would have been a great hardship ; but with the growth and progress of letters, the reason for permitting a verbal testament diminished in force, until finally an effort to establish such a will by means of gross fraud and perjury gave rise to the provisions of the statute of 29 Charles II., passed in 1676, termed the Statute of Frauds. Cole v. Mordaunt, in 4 Yesey, 196. Originally, nuncupative wills were valid, though not made in sickness. Afterwards, when writing became general, verbal dispo- sitions were regarded with disfavor, and ultimately were considered invalid unless made in the last sickness. In the reign of Henry 44 690 NUNCUPATIVE WILLS. VIII. they were defined as properly made, when the testator lay languishing for fear of sudden death, and daring not to stay the writing of his testament. Perkins, Sec. 476. In the time of James I. they were said to be usually made when the testator was very sick, weak, and past all hope of recovery. So it eventually became settled doctrine, that nuncupations were to be tolerated only when made in the last sickness, and a provision to that effect was in- corporated in the Statute of Frauds, in respect to dispositions of personal estate exceeding a certain amount in value. Prince v. Hazleton, 20 J. R. 502 ; 7 Bacon's Abr. 305 ; 6 Wood, Comm. 574 ; 2 Bl. Comm. 500 ; 1 Swift's System, 420. It is not necessary par- ticularly to consider the provisions of this statute, for they did not apply to the testaments of soldiers and mariners ; and now, by the Revised Statutes of New York, as well as by the Statute of 1 Vic- toria, c. 26, all nuncupations are invalid, except those made by soldiers and seamen. The revisers of our statutes reported new restrictions upon nuncupative wills, but the legislature abrogated them altogether, with the exception just stated ; and the same course was followed in the English statute. 3 R. S. (2d ed.). Re- visers' Notes, 630. The only nuncupative wills now allowed are those made by sol- diers and sailors. It appears from the preface to the life of Sir Leoline Jenkins, that he claimed the merit, at the time of tlie preparation of the Statute of Frauds, of having obtained for the soldiers of the English army the full benefit of the testamentary privileges of .the Roman army. The Roman soldier was indulged with very peculiar rights and immimities, in the way of exemption from the usual rules in respect to wills. Inter arma silent leges : in the camp and on the battle-field the testamentary law was silent. Amid the excitement and the perils of warfare, the forms prescribed by law for the execution of a will were dispensed with, so that the soldier might declare his last wishes by word of mouth ; or if, wounded, he wrote with his blood on his shield, or with his sword in the dust, the disposition was held firm and sacred. This privi- lege was unknown in the republic ; but when the civil and military authority were united in one person, and the army became the controlling power of the state, under Julius Offisar, tliat celebrated commander authorized the making of the military testament, in any mode, and without prescribed ceremonials. The example thus set was subsequently followed by Titus, Domitian, Nerva, and TO WHAT EXTENT ALLOWED. 691 Trajan, until the usage became thoroughly established. Dig. lib. 29, tit. 1, § 1. It was extended also to the naval service ; and oflScers, rowers, and sailors were in this respect esteemed as sol- diers. Dig. lib. 37, tit. 12, § 1. This was the foundation of those privileges of soldiers, in regard to nuncupative wills, which were allowed wherever the civil law prevailed, and which have been very generally adopted among civ- ilized nations. Domat. pt. 2, book iii. tit. 1, §§ 1, 3 ; John Voet, Com. Pand. lib. 29, tit. 1 ; Duranton, Tom. 9, liv. 3, tit. 2 ; Toul- lier, Tom. 5, liv. 3, tit. 2. In Prance, the Ordonnance de la marine of 1681 first gave special privileges to wills made at sea ; and the ordinance of 1735 regulated the celebration of the military testa- ment. The Code Civil has also adopted definite rules in regard to wills made at sea in time of pestilence, or by soldiers in service. Art. 981-988. In Holland, when commerce began to be extended to distant voyages, the question arose, whether wills made at sea were entitled to any peculiar immunity ; and some jurists affirmed that they should be taken as military testaments. The matter was finally resolved in favor of their exemption, in case of persons sail- ing to, or returning from the Indies, by the ordinances of the West India Company, in 1672 and 1675. Voet, Com. Pand. lib. 29, tit. 1. In England, by the Statute ofc Frauds, passed about the same time, the full benefit of the privilege was given, without restriction, to all soldiers and sailors in actual service ; and, as I have already stated, this liberal rule has continued to the present day. Nuncupative wills not being regulated by statute as to their mode of celebration or execution, the single question for the judg- ment of the court, is, whether the nuncupation was made by a person entitled to that privilege. The restrictions of the Statute of Frauds were not applied to wills made by " any soldier being in actual military service, or any mariner or seaman being at sea." By the Revised Statutes of New York it was provided, that nun- cupative wills should not be valid,," unless made by a soldier while in actual military service, or by a mariner while at sea." 2 R. S. p. 60, § 22. The terms of the exception in the Statute 1 Vict. c. 26, are, " any soldier being in actual military service, or any mariner or seaman being at sea." The phraseology is slightly different in these statutes ; but the rule is substantially the same in all, — that the nuncupation is only valid when made by a soldier in actual military service, or by a mariner at sea, at the time of the testa- 692 NUNCUPATIVE WILLS. mentary act. It is not enough to be a soldier or a sailor ; but there must be actual service. The military testament was first conceded by Julius Caesar to all soldiers ; but it was subsequently limited by Justinian to those engaged in an expedition, solis qui in expedi- tionihus oecupati sunt. Code, lib. 6, tit. 21, § 17 ; Inst. lib. 2, tit. xi. The exception was borrowed, with the rule, from the civil law ; and the courts have invariably adhered to the principle, that there must be actual warfare, and the soldier be engaged in expe- ditione. The Goods of Johnson, 2 Curteis, 341 ; Re Phipps, id. 368 ; Be Churchill, 4 Notes of Cases, 47 ; Merlin, Test. sec. 2, § 3, arts, v., viii. ; White v. Eepton, 3 Curteis, 818 ;■ Drummond v. Parish, id. 522; The Goods of Perry, 4 Notes of Cases, 402; The Goods of Norris, 3 Notes of Cases, 197 ; The Goods of Hill, 1 Robertson, 276 ; 4 Burge, Comm. 394 ; Cujac. Consult. 49. So, also, the nuncupation of a mariner, to be valid, must be made at sea. Key v. Jordan, in 3 Curteis, 622. It is sometimes difficult to determine when the mariner is to be considered at sea. For example : Lord Hugh Seymour, the admiral of the station at Jamaica, made a codicil, by nuncupation, while staying at the house on shore appropriated to the admiral of the station. The codicil was rejected on the ground that he only visited his ship occasionally, while his family establishment and place of abode were on land, at the official residence. The Earl of Euston v. Lord Henry Seymour, in 2 Curteis, 339. But where a mariner, belonging to a vessel lying in the harbor of Buenos Ayres, met with an accident when on shore by leave, made a nuncupative will, and died there, pro- bate was granted, for the reason that he was only casually absent from his ship. In the Goods of Lay, 2 Curteis, 375. The will of a shipmaster, made oif Otaheite, has also been allowed. Re Thompson, 5 Notes of Cases, 596. In the present instance, the decedent made a nuncupation, when the vessel to which he was attached was lying at the wharf in Bremen. He was at the time in actual service, on ship-board, and the nature of the service was continuous, — not being limited to the particular voyage. I think, therefore, he was entitled to the privilege. A question arises, however, as to the character of his calling. He was cook on board the steamship, and not what is ordinarily understood as a mariner. Tlie principle upon which tlie privilege of nuncupation is conceded, applies to all persons engaged in the marine service, whatever may be their special duty or occupation on the vessel. As, in the army. TO WHAT EXTENT ALLOWED. 693 the term " soldier " embraces every grade from the private to the highest officer, and includes the gunner, the surgeon, or the gen- eral. In the Goods of Donaldson, 2 Curteis, 386 ; Sliearman v. Pyke, in 3 Curteis, 539 ; Re Prendergast, 5 Notes of Cases, 92 ; Merlin, Test. sec. 2, § 3, arts, v., viii. So, in the marine, the term " mariner" applies to every person in the naval or mercantile ser- vice, from the common seaman to the captain or admiral. It is not limited" or restricted to any special occupation on shipboard ; but a purser, or any other person whose particular vocation does not relate to the sailing of the vessel, possesses the same right as the sailor. Morrell v. Morrell, 1 Hagg. 51 ; In the Goods of Ricliard Hayes, 2 Curteis, 338. A cook is certainly as much a necessary part of the effective service of a vessel as the purser or the sailor ; and there would seem to be no reason why he should be excluded from the advantage of a rule, designed for the benefit of men engaged in the marine, without reference to the particular branch of duty performed in the vessel. As well because the wills of soldiers and mariners were excepted from the operation of the provisions of the Statute of Frauds, as for the reason and ground of the exception, and the peculiar char- acter of the military testament, it was never held requisite that these nuncupations should be made during the last sickness. Nor has any particular mode been prescribed in respect to the manner of making the testament. The very essence of the privilege con- sists in the absence of all ceremonies as legal requisites ; or, as Merlin states the proposition, " Their form was properly to have no form." It is true, the Roman law required two witnesses. This, however, did not relate to the essence of the act, but only to tlie proof. In respect to evidence, we do not follow the civil or the canon law : no particular number of witnesses is required to verify an act judicially ; and all the court demands, is to be satisfied, by sufficient evidence, as to the substance of the last testamentary request or declaration of the deceased. This ascertained, the law holds it sacred, and carries it into effect, with as much favor and regard as would be paid to the most formal instrument, executed with every legal solemnity. The proof in this case shows tliat tlie decedent, in prospect of deatli, declared a wish that the deposit in the savings bank should be given to his mother. There must, therefore, be a decree of probate establishing that nuncupative disposition. 694 NUNCUPATIVE WILLS. Many of the American States have restricted the execution of nuncupative vfills within much narrower limits than those defined in the English Statute of Frauds. 1 Redf. Wills, 186 et seq. Thus in Vermont, the amount of property allowed to be so disposed of is limited to two hundred dollars, and the pro- bate of any such will must be instituted within six months of the decease of the testator, and then, upon evidence reduced to writing, by some one present at the making of the will, within six days thereafter. General Stat. Vermont, c. 49, § 8, , p. 377. But in this State, and probably in most of the other American States, soldiers in actual military service, and mariners or seamen being at sea, are allowed to make such wills, disposing of their wages or other personal estate, as they might have done before the Statute of Wills. Gen. Stat. Vermont, c. 49, § 9, pp. 377, 378. In Massachusetts, there is no provision in their Statute of Wills for any others but soldiers and seamen to make nuncupative wills. Gen. Stat. c. 92, § 9, p. 477. So that now this kind of will, as before stated, is practically restricted to the cases of soldiers and seamen in actual service. The preceding two cases give what we regard as a very full and just exposition of the law. We may hereafter discuss some points not clearly defined in the cases selected by us. The following case comes from a very able, careful, and learned judge, whose memory is deservedly held in the highest esteem by all who knew him. We could give nothing, from any recent case, upon which we could more implicitly rely : — 3. Gould V. Safford's Estate, 39 Vermont Reports, 498. 1866. The declaration, made by a soldier, in order to constitute a testamentary dis- position in the form of a nuncupative will, must have been made animo testandi, or for the purpose of having the very words uttered by him at the time, con- stitute his will. The testimony of one witness is all that the law requires to establish the nun- cupative will of a soldier in the Probate Court, either of first instance or upon appeal, provided the testimony is satisfactory to the court. Statement of the facts in the case, which the court held to constitute a good military testament. A soldier who falls sick upon the march, and is, of necessity, allowed to fall out and wait for returning strength, but who dies soon after he is carried into hos- pital, may properly be regarded as in actual military service, or, as the civil law expresses it, in expeditione. The facts sufficiently appear in the opinion of the court by — Kellogg, J. The question in this case is whether the declara- tions and requests of the deceased, Joseph P. SafFord, to the wit- TO WHAT EXTENT ALLOWED. 695 ness, Frank A. Olmstead, in respect to the disposition of his estate after his decease, should have effect as a valid testamentary disposi- tion of his personal estate, on the facts fOund by the County Court ? The ground upon which it is claimed that these declarations and requests were effectual as a nuncupative will is that, at the time when the same were made, the deceased was " a soldier in actual military service," within the meaning of the statute. It is settled by the findings of the County Court that these declarations and requests were made by the deceased animo testandi, or with the intention of disposing of his property by will, and while he was in extremis, and conscious of the near approach of death ; and we think that these findings were fully justified by the evidence de- tailed in the bill of exceptions. It also appears that the deceased died within two or three days after making these declarations and requests, and no question is made but that he was of full age, as well as of sound mind, at the time of making them. If he was not then " a soldier in actual military service," it is conceded that these declarations and requests would fall -within the operation of the general provisions of the statute in respect to nuncupative wills (Comp. Stat. p. 327, § 8; G. S. p. 377, § 8), and could not be established as a valid testamentary disposition of his personal estate. It is unnecessary to consider whether the validity of a nuncupa- tive will made by " a soldier in actual military service " is affected by the fact that it was made when the soldier could not be regarded as being in extremis, because it appears that the deceased, at the time of making the alleged testamentary disposition of his prop- erty wliich is now in controversy, was actually in extremis ; but it is a necessary preliminary to the consideration of the principal question in tlie case, that it should be determined whether such a will can be established by the testimony of only one witness. The appellants, who contest the validity of the alleged will in this case, claim that, as military testaments were derived from the Roman or civil law, they should be established by the same amount of proot which was required by the rules of the civil law. Under the rules of the civil law, a controverted fact must be established by the tes- timony of at least two witnesses ; but, under the rules of the com- mon law, the testimony of a single witness, where there is no ground for* suspecting either his ability or his integrity, is a sufficient legal ground for belief, even in criminal cases. 1 Starkie's Ev. 485 ; 3 696 NUNCUPATIVE WILLS. Black. Comm. 370. The trial of this case was in a court of common law, and we have not been able to find any case in which any other rules of proof than those of the common law have been recognized or held as applicable in such courts. The substance of the last testamentary request, declaration, or act of the deceased was the particular fact which was necessary to be judicially established on the trial ; and we think that it was sufficient to establish this fact by the same amount of proof which would be required to establish any other fact material to the probate of a will, such as the death of a testator, or that his residence was within the jurisdiction of the Probate Court at the time of his death. For the proof of a fact of that character, the testimony of a single witness, if uncon- tradicted, would clearly be sufficient. The rule of the civil law was merely a rule of proof, and did not relate to the essence of the act ; and, by the analogy of practice in courts of common law, a testamentary disposition of property, such as the one now in con- troversy, may be established in a court regulated and controlled by the rules of the common law, upon the testimony of one witness only. Eedfield on the Law of Wills, p. 194; Ex parte Thompson, 4 Brad. Surr. Rep. (N. Y.) 154. At common law, previous to the Statute of Frauds (29 Car. II. c. 3), a parol will, even of lands devisable, was goqd, and a written will might be revoked by parol. Rolfe, Widow v. Hampden, Knight, 1 Dyer's Rep. 53 J, pi. 13 ; Brooke v. Warde, 3 id. 310 J, pi. 81. Nuncupative wills were not forbidden by the Statute of Frauds, but they were placed by it under such restrictions as practically abol- ished them, and the courts have enforced these restrictions by uni- formly holding that the provisions of the statute must be strictly complied with to entitle any such will to probate. Such wills are now tolerated or established only upon the clearest proof of the observance of every statute requisite. But the Statute of Frauds provided (§ 23) that, notwithstanding that act, " any soldier being in actual military service, or any mariner or seaman being at sea, might dispose of his movables, wages, and personal estate as he or they might have done before the making of the act." The provi- sions of the Statute of Frauds were first adopted as a part of the statute law of this State in the year 1797, and from that time to the present day, the provisions of section twenty-three of the Stat- ute of Frauds have formed a part of our statute law. Acts of 1797 in laws of Vermont, Tolman's Comp., vol. i. p. 121, § 5 ; Acts of TO WHAT EXTENT ALLOWED. 697 1821, p. 38, c. 3, § 19 ; Slade's Comp. Laws, p. 837, § 19 ; Comp. Stat. p. 328, § 9 ; G. S. p. 377, § 9. The omission of the word " military," in the Act of 1821, did not affect tlie meaning of the statute, and this word was again inserted in the statute in the re- vision of tlie statutes in the year 1839. No statute law was ever in force in this State by which the testamentary privilege of " a soldier in actual military service," as that privilege existed before the Statute of Frauds became a law in the year 1677, was restricted, or limited, or in any manner interfered with ; and, before tliat stat- ute was passed, a will of personal estate, made by word of mouth only, would have been as operative as a will executed in writing in the most formal manner. 4 Kent's Comm. 516. The civil law was very indulgent in respect to the wills of soldiers ; and if a soldier wrote any thing in bloody letters on his shield, or in the dust of the field with his sword, it was held a good military testament. 1 Black. Comm. 417. No particular formalities were necessary to the validity of such a testamentary disposition of property ; and we are informed by Swinburne, whose treatise on Wills was published before the Statute of Frauds was enacted, that only those solemni- ties were necessary which are Juris gentium; that no precise form of words was required ; and that it was not material whether the testator spoke properly or improperly, if his meaning appeared ; and that soldiers are clearly acquitted from the observation of the solemnities of the civil law in the making of their testaments. Swinburne on Wills, pt. 1, § 14 ; pt. 4, § 26. It is well said in the opinion of the Surrogate in the case of Ux parte Thompson, ubi supra, that " the very essence of the pyivilege consists in the absence of all ceremonies as legal requisites, or, as Merlin states the proposition, " the form was properly to have no form." Tried by these rules, there can be no doubt that the declarations and re- quests of the deceased to the witness Olmstead were sufficient to make a good military testament, and ought to be established as a valid testamentary disposition of his estate, if, at the time of the alleged nuncupation, he was " a soldier in actual military service," within the meaning of the statute ; and tliis brings us to the con- sideration of the remaining question in tlie case. The words " in actual military service,'' used in section twenty- three of the Statute of Frauds, and in the Revised Wills Act of 1 Vict. c. 26, § 11, received a full consideration in tlie case of Drummond v. Parish, 3 Curt. 622 ; 7 Eng. Eccl. Rep. 496, s. c, in 698 NUNCUPATIVE WILLS. which it was held that these words referred to, and were intended to designate a service on an expedition, and that the privilege, as it respects the British soldier, was limited and confined to those sol- diers only who are on that particular service. We are entirely satisfied with this interpretation of the statute ; but what shall be considered as an expedition is, in some measure, a question of fact depending on the circumstances of the particular case. The de- ceased was a soldier belonging to a company and regiment which formed a part of the " Army of the Potomac " in the recent war of the rebellion, and his company and regiment were unquestionably " in actual military service," in the sense in which those words were interpreted in the case of Drummond v. Parish, on the 13th of September, 1862, when he made the declarations and requests which are relied on as being of a testamentary character in this case. He had been with his company and regiment through the battles of the peninsular campaign, and, in the latter part of the previous month of August, had been transferred, with the entire " Army of the Potomac," to the vicinity of Washington. The rebel forces, inspired by their successes on the Chickahominy and at Cedar Mountain, which were then recent, were threatening an in- vasion of Maryland and Pennsylvania ; and the second battle of Bull Run, and the battle of Chantilly at the close of August and the beginning of September, had resulted disastrously to the Union forces. In the first week of September, the safety of the national capital was seriously endangered by the presence of a victorious enemy, who soon after crossed into Maryland, and directly threat- ened both Washington g,nd Baltimore. Wasliington was in fact a beleaguered city, and its entire vicinity was a tented field, and the whole " Army of the Potomac " was engaged in constant movement to cover these important cities and repel the invasion of the enemy. The rebel forces which were engaged in this invasion were decisively defeated in the battles of South Mountain and Crampton's Gap, on the 14th of September, and at Antietam on the 16th and 17th of September, and were driven back into Virginia. The company and regiment to which the deceased belonged was a part of the force which was kept in daily movement to meet the enemy and repel the invasion. While the regiment was on the march to find and engage the enemy, the deceased and the witness, Olmstead, who had been left behind on picket duty, rejoined it at Tenally- town, a village situated in the District of Columbia, a few miles TO WHAT EXTENT ALLOWED. 699 from Washington. The deceased was then sick and very weak, and he and Olmstead, who was also sick, were ordered by their captain, with the^ approval of the regimental surgeon, " to fall out, and come on when they got rested." On the next day, both he and Olmstead, being unable to go on, reported to another army surgeon, by whom they were sent in an ambulance to the army medical director at Washington. By this medical director they were sent to a hospital for soldiers, called Harewood Hospital, situated in the District of Columbia, about two miles from Washington. This hos- pital had then been recently established, and was without barracks or other shelter except tents, and its arrangements and conveniences were of the most temporary character. It was in fact nothing more than a field hospital at that time. After arriving at the hospital, the deceased and Olmstead were put into a hospital tent, in which were eight persons, some of whom were sick and some wounded ; but they were then so weak that they could render no assistance in putting up the tent, and were not even able to help themselves. After they were put into this tent, they were examined by a physi- cian in attendance, who found the deceased in the last stage of pul- monary disease, and told him, among other things, that he had not long to live ; and, " that if he had any requests to make, or wished to do any thing to dispose of his property, he had better do it im- mediately." This was on the 13th of September. The deceased, after he was so informed by the physician, and on the same day, made the declarations and requests to the witness Olmstead, which are proposed to be established as a testamentary disposition of his personal estate, in the presence of the person occupying the tent with him. It is apparent that, at that time, all facilities for making a formal will were as much if not more inaccessible to him in the hospital than when he was on the march with his regiment. When he was ordered by his captain at Tenallytown " to fall out, and come on when he got rested," he was in no sense relieved from military duty or command, but was subject at any moment to be called upon to rejoin his- company. He could not be considered as absent on a furlough ; for he had no leave of absence from military service, and he remained behind in obedience to an order. The entire army to which he belonged was at that time " on an expedition ; " and, in our judgment, he was as much on that expedition while in the hos- pital tent at Harewood Hospital, as when he was in his own tent with his company and regiment at Tenallytown. He was then in 700 GIFTS MORTIS CAUSA. the presence of actual war, and was surrounded by its perils ; and, althougli he was in a hospital, he was as mucli in the line of mili- tary service, if he was there in obedience to an order from proper authority, as he would have been if he had been left behind on piclcet duty. In tlie opinion delivered in the case of Drummond v. Parish, uhi supra, it is stated that it appears from the preface to the life of Sir Leoline Jenliins, the eminent civilian, who was said to have been associated with Sir Matthew Hale and Lord Keeper Guil- ford in the preparation of the Statute of Frauds, that he claimed the merit of having in that statute secured to the soldiers of the English army tlie full benefit of the testamentary privilege of the Roman soldier. If we regard the nature and object of this priv- ilege, and the situation of the deceased, at the time he made the declarations and requests to the witness Olmstead, in respect to the disposition of his estate after his decease, we can come to no other conclusion than that, in the sense and meaning of the statute, the deceased was at that time " a soldier in actual military service," and that there was no error in the finding of the County Court to this effect. The judgment of tlie County Court in favor of this alleged nun- cupative will of the deceased, as a valid testamentary disposition of his personal estate, is accordingly affirmed. VII. Gifts Mortis Causa. Gifts mortis causa are so nearly the same as nuncupative wills that we deem this a proper place to give a few cases upon the former subject, in connection with the latter. Tiie only essential difference between the two is, that, in gifts mortis causa, a delivery of the property by the donor to the donee, or to some agent or trustee for him, is indispensable to the validity of the gift, while that is not essential in the case of nuncupative wills. Gifts mortis causa are really as much of a testamentary disposition as any other ; and as they have been placed under no statutory restrictions, as is the case in regard to nuncupative wills, they seem to have come very much more into use, as the others have grown into disuse, so that gifts mortis causa seem to be filling the place once occupied HOW DEFINED. 701 by nuncupations. It will therefore afford more practical assistance to the profession, for us to illustrate this subject, to some extent, in connection with the other, than to occupy more space in regard to nuncupative ^ills. 1. Meach v. Meach, 24 Vermont Beports, 591. 1852. Real estate cannot pass as a donatio mortis causa. A deed of lands executed to the wife by the husband, at the point of death, for the purpose of making a disposition of his estate, to become operative after his death, cannot be sup- ported as a deed, nor as a will, not having three witnesses, as required by the statute in case of wills ; nor as a settlement of property upon the wife, made during coverture. A donatio mortis causa is valid, even where it embraces all the testator's personal estate, of large amount and value. It is no ground of objection to the validity of a gift mortis causa, that it is made by the husband directly to the wife, without the intervention of a trustee. These gifts must be made during the last sickness of the donor, and when he does not expect to recover. Such gifts are revocable during the life of the donor, and are entirely avoided by his recovery from the sickness or his surviving the donee. There must be an actual or constructive delivery of the subject of the gift by the donor, or his agent, during the life of the donor, to the donee, or his agent or trustee. Where a gift mortis causa is made in writing, it would seem not essential to its validity that the writing should, in terms, embrace every requisite to the per- fection of the gift. And if that were to be held essential, a court of equity might perfect the instrument, by the aid of oral proof of the facts and circum- stances attending the transaction, if such was clearly shown to have been the intent of the donor, and the requisite facts to have existed. After the decease of the donor, his personal representative is regarded as stand- ing in the light of a trustee for the donee, so far as any possessory rights, or any right of action, in the subject of the gift, is concerned. A bond and mortgage, or any other chose in action, whether negotiable or not, may constitute the subject-matter of a good gift mortis causa, and pass by delivery to the donee, without any formal assignment by the donor ; and the delivery of a formal written assignment of the contract, as the symbol of the delivery of the gift, may be sufficient to perfect the gift, even without the de- livery of the contract or instrument itself. And the delivery of a deed of the thing given will be sufficient to perfect the gift without more, it would seem, whether the gift be of things in possession or in action. A deed of all the donor's property, and all he should be possessed of at his decease, should be construed as becoming operative only in the event of his decease. 702 GIFTS MORTIS CAUSA. Extended comments in the note to this case by the judge delivering the opinion, in regard to the proper office of gifts mortis causa, and how far they may be regarded as improperly trenching upon the objects and purposes of the Statute of Wills. The facts sufficiently appear in the opinion of the court by — Rbdpield, C. J. This is a bill in equity, appealed into this court from the decree of the Chancellor. The facts in this case are not very fully shown ; but sufficient appears, perhaps, to enable us to determine the case understandingly. On the 13th day of May, 1847, Avery Meach, being desperately sick of consumption,-executed, in common form, a deed of all his real estate to his wife, the orator.; the value being about ten thou- sand dollars. On the same day, and at the same time, he executed a deed of all his personal property to his wife also, consisting of stock upon his farm, and ehoses in action to a considerable amount. The deeds were recorded in the town-clerk's office on the 31st day of May, 1847. The grantor continued hopelessly sick until the 23d of June, 1847, when he died. The deceased left no child, and no father or mother ; his nearest heirs being of the degree of brothers. The orator continued in quiet possession of the property until August, 1847, when adminstration was taken out, and the possession of the property demanded of her, which she declined to surrender. It was arranged that she should retain the possession of the property until this suit could be instituted and the title determined. The debts due from ithe estate are between three and four hundred dollars. The grantor had adopted a female child, who is now dependent upon the orator in some degree. It is first important to inquire what the purpose and intentions of Avery Meach were, in executing these conveyances, and then how far that purpose can- be carried into effect, consistently with the established principles of law. It has been claitned, on the part of the orator, that this may be fairly regarded as a post-nuptial settlement, for the support and maintenance of the wife, not only during the coverture, but also in the event of the husband's death, and so be vipheld as a gift inter vivos. But it seems to us that the transaction is incapable of being, fairly, viewed in that light. It had no reference to any settlement upon the wife, for her separate maintenance during the continuance of the relation subsisting between the parties. And marriage HOW DEFINED. 703 settlements, whether post-nuptial or ante-nuptial, have a chief ref- erence to the independent support of the wife and her dependants, whether children or others. A marriage settlement, even a post- nuptial settlement, out of the separate property of the husband, which it is perfectly competent for him to make valid against his heirs, and even subsequent creditors if he chooses, and which have often been upheld by courts of equity, even when made directly between husband and wife, without the intervention of trustees (2 Story's Eq. Juris, p. 817, and the numerous cases cited in note 2), would certainly be a very gross misnomer, if, hj post-nuptial, we were to understand an arrangement not made after marriage, which is its common import, but one which was only to go into effect, and- have operation, after the nuptial relation should have been for ever extinguished by the natural death of the husband. It is not claimed that the terms can be extended to any such transactions ; but it is believed that the present case is incapable of being fairly viewed in any other light. Here is a man in tlie last stages of consumption, within a few weeks of his death, and doubtless fully conscious of the impossibility of much longer maintaining any hold upon property, who makes a sweeping dis- position, in the present tense, of all his earthly possessions. Now it is claimed that this may be treated as a rational (and, to be maintained in a court of equity, it must be also a reasonable) dis- position of property inter vivos between husband and wife, in order to secure a suitable provision, or portion, or maintenance, or settle- ment upon the wife. Men that have property, and acquire it, as this man did, by long- continued industry and scrupulous, economy, do not ordinarily, it may be said, part with it at once, and without reluctance, even into the hands of tlie most tried friend. This is such a reversal of the relations hitherto subsisting between the grantor and the grantee, that nothing but the certainty and the nearness of death would have induced the change. It is in vain to affect to convince our- selves that any less motive could have formed the prevailing con- sideration for the transaction. And could we for a moment entertain the belief that this was intended as a bona fide settlement upon the wife, viewed as a mere transaction inter vivos, it would be impossible for a court of equity to maintain it, on the ground of its unreasonableness. We can entertain no doubt that, had the grantor recovered his health, and 704 GIFTS MORTIS CAUSA. the grantee, by her friends, claimed to hold the property against him as a gift, a court of equity would iiave decreed a complete res- titution, upon the ground that the contract, as a present operative contract, was made under a material misapprehension of the impor- tant facts ; the real consideration for the contract having, in fact, altogetlier failed. As is said in Justinian's Institutes, upon tlie subject of gifts mortis causa, mora causa donandi magis est quam mortis causa donatio. Death is rather the cause or consideration of the gift, than the mere occasion of its being made. And that view applies with great force to the present transaction. It had exclusive reference to a period beyond the life of the donor, and could never have been intended to have any operation in any other event. It was, in fact, a testamentary disposition of the property. And when a court of equity is applied to for the purpose of carry- ing a contract into specific effect, it ought not to be expected to do it in any other sense than that in which it was understood between the parties. Refinements, evasions, forced and false glosses, have always a bad sound in the mouth of a court of equity. If the contract cannot stand upon its own foundation, it ought not to be expected of a court of equity to decree a specific performance. And hence, while a court of equity recognizes a settlement of property by the husband upon the wife, even out of his own estate, and altogether aside of any property received by the husband from the wife, and often without the intervention of trustees, and originating wholly after the marriage, as perfectly valid, and to be upheld, and its execution aided by the court, no case can be found where any such settlement of property upon the wife as the present, regarded as a mere settlement or separate portion, has ever received the counte- nance of a court of equity. And in Beard v. Beard, 3 Atkyns' R. 72, where one attempted to make a very similar settlement upon the wife, in order to avoid a will which he had made in a drunken passion, at a tavern, by which he had given all his property to a brother. Lord Hardwicke says, " A man liere has done two very unreasonable acts ; if it should happen that one trips up the heels of the other, it is a very fortunate thing to set every thing right again." But he held the conveyance to the wife void, as un- reasonable, saying, " Neither will this court suffer the wife to have the whole of the husband's estate while he is living, for it is not in the nature of a provision, whicli is all the wife is entitled to." And this is the settled law of the Court of Chancery at the" present day. WILL NOT PASS REAL ESTATE. 705 Viewed, then, as a disposition of the donor's property to take effect at his death, the important inquiry remains, Can it be carried into specific effect in a court of equity ? There is, no doubt, always a disposition in courts of equity to uphold these informal testamentary gifts, so far as they are under- standingly made, and are perfectly reasonable and considerate, wliich is eminently true of the present case, considered, as it was intended, as a disposition of the donor's property, to become oper- ative at his death only. But a court of equity could scarcely be expected to reform a man's last will and testament, even if it were certain they could thereby, in the particular case, come more pre- cisely at his real intention than is expressed by the scrivener who drew the document, which was formally autlienticated. Much less could a court of eqiiity be allowed to create a last will for one, from deeds and other writings informally executed by him, and which he was at the moment informed and believed, up to the time of his death, would effect the purpose expressed therein. This would be a sweeping, wholesale repeal of all the statute requisites in regard to wills. And I confess that, during the argument of this case at the bar, which was made exceedingly interesting on all hands, I could not disabuse my mind of the impression that stripping the bill of all circumlocution, in its full scope, it was a petition to the Court of Chancery to create, out of these deeds, a last will and testament for Avery Meach. Peeling from the first a ready incli- nation to listen to the object of the prayer of the bill, my mind was nevertheless continually haunted with the sense of absurdity at tlie very singular course it seemed necessary to take in order to effect it, i.e., to make both the will and probate of the will of the donor. And in the examination of the case, with a sincere will- ingness to escape from that conclusion, my first impressions have been confirmed, at least so far as the real estate is con- cerned. A gift of real estate cannot be sustained as a donatio mortis causa, for that only extends to the personalty. We have, then, nothing remaining, so far as that is concerned, but the naked deed from husband to wife. This, it is admitted, cannot operate at law ; and when the court of equity is applied to for a decree of specific performance, and to compel thb execution of the' contract by a competent trustee, e.g., the administrator, they are met on the threshold by the obvious fact that this was understood by the parties to be neither more nor less than a testamentary disposition 45 706 GIFTS MORTIS CAUSA. of the donor's property. And if it is not regarded in this light, it is incapable of being sustained as a disposition of property inter vivos upon the ground of its unreasonableness. We can only say that we deem it impossible to give the deed of real estate the effect intended by the parties, without virtually dispensing with the essen- tial requisites of the Statute of Wills. This view of the subject is not peculiar to this court. In a late case in the English Chancery, before Vice-Chancellor Knight Bruce, so late as June, 1851, Moore v. Darton, 7 Bng. Law & Equity R. 134, s. c. 4 De G. & Sm. 517, a doubt is suggested whether the late English wills act, which is not more stringent than our own, " has not precluded all donations " of personal property mortis causa. But that learned judge did ultimately come to the conclusion that such was not the case. There can be very little doubt that a case of the character of the present, including both real and personal property, and extending to all a man's earthly possessions, would have been regarded by that court as altogether repugnant to the wills act ; certainly so far as the real estate is concerned. In the late case of Headly v. Kirby, decided by the Supreme Court of Pennsylvania, in May, 1852, 1 American Law Register, 25, s. c. 18 Penn. St. 326, it was expressly held that " a gift of all the donor's property in prospect of death is not a donatio mortis causa. It is not valid, unless executed as a written or as a nuncupative will." The case seems to have been very elaborately argued by the most competent counsel, and is supported by a somewhat ingenious argument from the bench, by Mr. Justice Lowrie; and the editors of the Register evidently incline to support the decision as altogether unanswerable. As the property in that case was all personal, and what was done might have been regarded as suifi- cient to constitute a gift mortis causa, it may be somewhat question- able how far a donatio mortis causa is to be altogether invalidated, by reason of its embracing the major part, or the whole of one's property, if it be in other respects unobjectionable. Neither the EngUsh nor American cases have attempted any such criterion before, and it would seem, at first blush, rather difficult of applica- tion. But if these cases show no more, they may be regarded as evidencing a disposition on the part of courts in both coun- tries, not to extend these informal testamentary dispositions of property, in manifest abuse and disregard of tlie salutary enact- ment in regard to wills. WHAT REQUISITE TO CONSTITUTE. 707 It only remains to inquire how far the deed of the personal property, in this case, can be maintained as a donatio mortis causa. 1. It seems never to have been regarded as any objection to a gift mortis causa, that it was made by the husband directly to the wife. The elementary books all so treat it. 2 Kent's Coram. (7th ed.) 556 (445) ; id. 178. The civil law was clearly so (Inst. 2, 7, 3 ; Cooper's Justinian, 102, 103), where it will fully appear that not only gifts mortis causa between husband and wife were sanc- tioned, but even between them inter vivos, as donationes propter nuptias. And numerous decided cases in the Englisli chancery fully establish the point that such gifts are good between husband and wife. Lawson v. Lawson, 1 P. Williams' R. 441 ; Miller v. Miller, 8 id. 356 ; Jones v. Selby, Free, in Ch. 300.- The latter case is that of a housekeeper, to be sure, but the delivery was by giving up the key of a trunk, and was held sufficient, notwith- standing the donor held the custody of the trunk and received the interest on the government security, which was tlie subject of con- troversy. But the case failed upon another ground. 2. This case combines, we believe, all the essential facts requisite to constitute a good donatio mortis causa by tlie common law, and many of them strikingly identical with the very words used by the civil-law writers in defining these gifts, from which the thing was transplanted into the English law. " Mortis causa donatio est, quae propter mortis fit suspicionem, cum quis ita donat, ut siquid humanitus ei contiglsset, haberet is, qui accipit ; sin autem super- vixisset is, qui donavit, reciperet ; vel si eum donationis poeni- tuisset, aut prior deceserit is, cui donatum sit. Et in summa, mortis causa donatio est, cum magis se quis velit habere, quam eum, cui donat: magisque eum, cui donat, quam heredem suum." That was the very object and intention of this gift ; and the trans- action answers well enough the requisites of the English chancery law. It was made during the last sickness, in the prospect of certain and speedy dissolution, to take effect fully after death only. It was but a rational and reasonable gift under the circumstances, and was intended to become inoperative in case of the recovery of the donor from that sickness, or his surviving the donee, or chang- ing his intention. All these incidents are not indeed fully set forth in the instrument of donation, and we do not find that is essential to the validity of such a gift. If that should even prove to be so, to a greater extent than appears in this deed, which has not been 708 GIFTS MORTIS CAUSA. discussed at the bar, we entertain no doubt a court of equity will lend its aid to fully eflfect the purpose of the donor by supplying any formal defect in the instrument by [means of oral proof of the facts and circumstances attending the transaction, if such were clearly shown to have been tlie purpose and intent of the donor], against the personal representative, who, in these gifts, is regarded as a trustee for the donee [as to all possessory rights or rights of action in the subject-matter of the gift]. Says Mr. Justice Story (1 Bq. Jur. p. 673), " the doctrine no longer prevails, that where the delivery will not execute a complete gift, inter vivos, it cannot create a donatio mortis causa, because it would not prevent the property from vesting in the executor." On the contrary, the doctrine now established by the highest authority is, that courts of equity do not consider the interest as completely vested in the donee, but treat the delivery of the instru- ment as creating a trust for the donee, to be enforced in equity. Duffield V. Blwes, 1 Bligh's E. n. s. 497, 530, 684 ; same case affirmed in the House of Lords, by the name of Duffield v. Hicks, 1 Dow & Clark, 1, reversing the decree of Vice-Chancellor Leach, 1 Sim. & Stu. 239. In this case it was finally established, in Eng- land, that a bond and mortgage passed by mere delivery, witliout any written assignment, as a good donatio mortis causa. And it seems now to be well settled that any chose in action, whether negotiable or not, whether simple contract or specialty, if it be the contract or promise of some other than the donor, and do not constitute any obligation upon the donor, may, by mere delivery, constitute a good gift mortis causa. And if there is no formal delivery, but an assignment under seal, and perhaps only in writing on a separate paper, this will, by being delivered, consti- tute a good delivery of the thing, and create a trust, in favor of the donee, against the personal representative. We have noticed this in the extract from Story's Equity Jurisprudence. Lord Chan- cellor Loughborough in discussing this subject in Tate v. Hilbert, 2 Vesey, Jr. 120, says : " It is not necessary to discuss, in this case, whether delivery is necessary in all cases. Perhaps it is not difficult to conceive that it might be by deed or writing." ' He further intimates that there is no objection to a formal deed, as constituting a sufficient perfecting of the gift to create the trust in favor of the donee. And upon principle, it would seein, there could be no objection to creating the gift by deed, without any WHAT REQUISITE TO CONSTITUTE. 709 formal, manual tradition of the thing; which, in many cases, would be difficult, and in others, like the present, consisting, in part, of a large herd' of cows, altogether idle and absurd. And the deed imports conclusively a sufficient consideration ; is an estoppel upon the donor and his personal representatives, and, after delivery and public registration, is a sufficient setting apart of the property to the use and control of the donee, and far less liable to perversion or abuse, than any mere parol gift, with the most ceremonious delivery. In the case of transfer of property by deed, nothing remains to perfect the gift. It does not remain inchoate, or incomplete, or in any sense revocable, after the delivery of the deed. Chancellof Kent says (2 Coram. 559, 7th ed., in note), " The requisites of a valid donatio mortis causa are well collected in a learned note to Walter v, Hodge, 2 Swanst. 106, where it is stated, and proved, that it requires delivery of the property, or the documentary evidence of it." This has reference, perhaps, to choses in action primarily ; but it is difficult to see why the deed of a thing being delivered is not as much a delivery of the thing, as the delivery of a bond or note is a delivery of the debt. In principle it clearly is so. This seems to be a full recog- nition of this mode of perfecting the gift, both by the learned com- mentator and the annotator of Swanston. And if any question could be entertained of the sufficiency of the deed itself, after delivery and formal registry, to perfect the gift, we do not perceive but there was, in fact, all the actual delivery of this property of which it was susceptible, as between husband and wife, whose possession is of necessity, in some sense, in fact, and always in law, identical. If one had been required to devise the best mode of perfecting a gift of this kind between husband and wife, it could not, perhaps, under the circumstances, have been done better, or more in accordance with legal principles, than this was, altogether accidentally we must suppose, done. For the thing seems to have been got up, in the main, very inartistically ; arid the actual 'delivery is all that could have been made without involving the parties in acts more or less absurd and ridiculous. In examining the case, it occurred to me that some might object to this deed as a gift mortis causa, inasmuch as it does not, in terms, very explicitly provide that the gift should only take effect after the donor's death. In a mere oral gift this is often implied from the attending circumstances, as is very obvious in tlie present 710 GIFTS MORTIS CAUSA. case. But the gift being by deed, we are, in a measure, confined to its terms, construed with reference to the attending circum- stances. And as this deed professes in terms to convey not only all the donor's property at the date, but all of which lie should be possessed at his decease, it is fair, we think, to give the words that signification, that the donee's full right under the deed should not become absolute and perfect, except in the event of the donor's death. But if this were doubtful, there is no doubt a court of equity would lend its aid to perfect the deed in this particular. It is said in Harris v. Olark, 2 Barbour's S. C. R. 94, 98, by Grridley, J., " That in gifts inter vivos, a court of equity will not compel the donor to complete his gift, or an ex'ecutor to complete the gift of his testator ; whereas, in the case of gifts mortis causfx, the donor may successfully invoke the aid of the Court of Chancery for that purpose." In Tollett v. Tollett, 2 P. Wms. 489, the defective execution of a power by will, when it should have been by deed, was supplied in equity in favor of the wife. And the defective execution of a power is always supplied in courts of equity, when that is necessary to perfect a gift inter vivos, even if that is the only instance in which that court does interfere to perfect a gift inter vivos. But it is every day's practice for such courts to lend their aid to perfect gifts mortis causa. But this, we conceive, is not necessary in the present case. We think, therefore, that the deed of the personal property, with the attending circumstances, did constitute a good gift mortis causa, and that tlie orator must hold it. And as the taxable costs are small, and the suit is an amicable one, and neither party fully prevails, no costs should be allowed. Note read hy the Judge at the Time of delivering the Opinion, and really forming Part of the Opinion. I have not deemed it important to go into any exposition of the history of the law in regard to gifts mortis causa, or indeed into any extended discussion of its^ policy or present state. For, notwithstanding the efforts which seem to have been made to limit its operation, even as far back as the time of Justinian, who required all such gifts to be made in the presence of five witnesses, and also sub- jected them to the operation of the lex Falcidice, by which one was prohibited from disposing of more than three-fourths of his estate to the prejudice of his heir ; still the thing maintains its hold upon the jurisprudence of most of the European States, and is evidently a good deal extending its operation in the American States. WHAT REQUISITE TO CONSTITUTE. 711 One cannot but feel that it was never properly intended to apply to a general disposition of a large estate to the utter subversion of the Statute of Wills. And still, when we attempt to limit its operation, we encounter embarrassments not readily disposed of. If one may remit a debt of £600, about $2,600, by the simple act of delivering the receipt for it to a third person, a servant attending the death-bed, with a general expression of desire, in the briefest words, that the debt should be cancelled, which was the case of Moore v. Darton, 7 Eng. L. & Eq. R. 134, 6 De G. & Sm. 517 ; and which was sustained without difficulty by a distin- guished English Vice-Chancellor, we can scarcely be expected to say that twice that amount, therefore, is not a good donation mortis causa. And although, in practice with us, this mode of final disposition of property has oftener been confined to some favorite articles of personal attire, or ornament perhaps, like watches and jewels, yet an examination of the cases will show a wonderful variety in the character and extent of property disposed of in this mode, often including all one possesses, consisting of the largest.extent and variety of property, both in pos- session and in action ; and thus, in fact, amounting to a nuncupative will. And still I find no case, except the late case in Pennsylvania, where any attempt has been made to limit its operation, on account of the comparative or absolute extent of the property disposed of. And the more I have reflected upon the subject and compared the cases, with a view to evolve some rational and practi- cable principle of limitation to the extent of its operation, the more I have felt constrained to declare that it cannot be done by any powers of abstraction or generalization, which my short sight is able to command. If the servant, whose whole estate consists of a few hundred dollars, balance of earnings, in the hands of his employer, and five pieces of property, in posses- sion, is to be allowed, in his last sickness, to dispose of it to five diiFerent per- sons by mere words, and by committing the entire evidence of debt to a fellow- servant, which seems now to come within all the best considered cases upon that subject, it would seem invidious to hold, that when the property amounts to thousands, composing the principal estate of a substantial householder, it could not, therefore, be conveyed in this mode. And if the man of great worldly pos- sessions, who has executed his will in the most reverent formality, may, when death presses him sore, modify that disposition, which alone the written law of the land recognizes, by taking from his secret drawer securities far debt to the amount of thousands of dollars, and making an irrevocable disposition of them alter death, by the brief words, " I give," and the simple act of delivery to the wife, which, in law, is a delivery to himself, a mere change from one hand to the other, it would certainly not be easy to say that one whose whole property did not amount to one tithe of that sum, or if it did exceed it by hundreds of dollars, could not do the same. And yet it will be noticed that the last case supposed is the well considered and constantly recognized case of Miller v. Miller, 3 P. Wms. R. 356. It ought, perhaps, here to be said, that the present case is decided neither upon the sufficiency of the deed, nor of the delivery of the property, such as it was, which is not very fully shown in the case, but which we feel justified in treating as being such as was natural, under the circumstances, where the hus- band had become so incapable of longer managing or controlling his property and business, that it fell exclusively under the control of the wife, even before 712 GIFTS MORTIS CAUSA. his death. It is upon neither of these grounds alone that this case is decided, but upon both, not intending to go further, in settling the law upon this perplex- ing subject, than the imperious necessities of the case demand. Some other views of this case undoubtedly might be taken, but most of them more or less remote from the actual merits of the case. As a gift inter vivos, I am not-aware that the wife is regarded as possessed of any peculiar equity beyond her legal rights, more than any other donee. If the property had been the result of her own earnings exclusively, or of accumulations by her for her own use, out of an allowance made her by her husband, or especially if it had been the result of money which was hers at the marriage, or by inheritance subsequently, no doubt a court of equity, making her equity the basis of its action, might extend relief in many cases, where otherwise it would not. But there is nothing of that kind in this case. And treating it as a mere gift inter vivos, a court of equity will never interfere to make it operative, except in the single case of the defective execution of powers, as we have seen, which, in practice, are but little known among us. Equity has oftener, by far, interfei-ed to carry into effect the apparent purpose of the donor, in regard to his bounty, where the gift, although in form a gift inter vivos, was in fact a testamentary disposition among his heirs. This has often been done in regard to donations mortis causa, as we have shown, and in one instance certainly, in this State, in the case of real estate. Thompson ti. Welch, Ben. Co. Sup. Ct. 1849 (not yet reported). • But that was to do equity and justice among the donees, according to the in- tention of the donor, and when the title at law confessedly passed by the deed of gift. And we are aware that deeds of land in this State, in repeated instances, which were in fact testamentary dispositions of property, and delivered as escrows, to become operative only in the event of the death of the grantor, have nevertheless been sustained and held valid, both at law and in equity. But that is upon the principle that the deeds were valid in themselves, and required no aid of a court of equity. But a deed cannot be delivered to the grantee to be- come operative upon the death of the grantor. In that case it must take effect presently, or not at all The grantee cannot hold a deed as an escrow. This opinion was prepared with all the care and study which the importance and novelty q|' the case, at the time, seemed to demand ; and we are not aware that the numerous decisions since that time, both here and in England, have essentially modified the doctrines there stated. In one or two instances we have ventured to extend the definitions, in the original opinions, by brief brackets. In other respects, the opinion appears here as it was originally delivered ; and it will be seen that it covers most of the points of law connected with the subject. We need scarcely name the distinction, now firmly established, between the effect of the donor giving his own note or bond, and that of a third person, be- longing to him, as a gift mortis causa. In the former case the gift is so incom- plete during the life of the donor, that it cannot be maintained after his death. Chase V. Redding, 13 Gray, 418 ; Craig v. Craig, 3 Barb. Ch. 76, and numerous other cases, cited 3 Eedf. Wills, § 42, pi. (10), n. 48. But where the donor, after executing his own note or other contract to the donee, as a gift mortis causa, subsequently makes his will directing the executor to pay the note or other con- tract, or referring to it as a valid claim upon his estate, this will make a valid WHAT REQUISITE TO CONSTITUTE. 713 legacy to that amount. Longstaff i>. Rennieon, 1 Drewry, 28 ; Loring v. Suranor, 23 Pick. 98; Wilbar v. Smith, 5 Allen, 194; 1 Kedf. Wills, § 21, pi. 19, n. 33 et seq., and cases cited p. 264 et seq. The following case, as we have before had occasion to say of other cases, comes from a source entitled to the liighest respect ; far beyond what could justly be demanded by courts of last resort, upon this particular subject, which very few good lawyers have leisure to examine with any such thoroughness as did the author of this .opinion, whose professional life was devoted witli great assi- duity and earnestness to the thorough comprehension of the true principles upon which the law of wills and of all topics pertaining to the settlement of estates is founded. 2. Merchant v. Merchant, 2 Bradford's Surrogate Reports, 432. 1853, A gift made during the donor's last illness, from which he does not expect to recover, is, presumptively, a gift mortis causa. Such gifts are revocable at the will of the donor ; and if he resume the possession of the gift, by reclaiming it from the person with whom it had been intrusted by the donee, with intent to recall the gift, although without the knowledge of such donee at the time, it will amount to a revocation of the gift ; and if the donee subsequently resume the possession of the subject-matter of the gift without the consent of the donor, or after his decease, and retain such possession, claiming it as his property, by virtue of the gift, he will be com- pelled to surrender the possession to the personal representative of the donor, or, if he be himself such representative, to account for it as belonging to the estate. The civil law, from which this species of gift is incorporated into the English law, annexed three conditions to such gifts. They become inoperative, 1. Upon the recovery of the donor ; 2. His repentance of the gift ; 3. The death of the donee before that of the donor. These qualifications of such gifts have all been maintained in the English law. The facts appear in the opinion of the court by — Bradford, Surrogate. On the final accounting of the executor, William H. Merchant, the legatees seek to charge him with three thousand dollars, the amount of three Erie Railroad income bonds, which they allege were the property of the deceased. To prove this, the claimants produced the inventory ; but, the 714 GIFTS MORTIS CAUSA. entry thereon showing that the executor claimed the bonds as a gift from the testator, the proof was insufficient. Mr. Dodge then testified that the executor, after the testator's death, called at his office and stated that he had taken the bonds in question out of the box containing the securities of the estate, on the morning after the decease of his father, the executor alleging as a reason that he claimed them as his own, as a gift from his parent. It was then proved on the part of the executor, by the evidence of his coexecutor, Mr. Reading, that two of the legatees had stated that the testator gave to his son William the bonds in question, some short time previous to the making of his last will, — within a month before ; that it was a full and free gift, and William had handed the bonds to his mother ; that subsequently and after the testator made his last will, his wife took the boiids, conversed with him about the will as it then stood, and, holding the bonds in her hand, said, " Now that the will gives each child alike, shall I hand over to each child a thousand-dollar bond ? " The testator said, " No, put them back in my tin box." It also appears that, the day before the testator's death, he directed one of his daughters to bring the box, open it, and see if the bonds were there. She opened it and showed him the bonds ; and he said it was all right, and told her to put them back in the box, keep the key, and at his decease deliver it to Mr. Reading, one of his executors ; that she kept the key till after lier father's death, when she gave the key, at her mother's request, to her brother William, the other executor. It is certain that the bonds in question once belonged to the tes- tator, and they were entered by him on a schedule of his assets. The testator having made a will by which his son had not been placed on an equal footing with his daughters, and having subse- quently become reconciled to his son, made the gift of these bonds, when his will remained in that condition. He afterwards revoked that will and executed another, in which his children were treated alike, except that the daughters were given the use of his dwelling- house and furniture in common with their mother. After the new will had been made, Mrs. Merchant brought the bonds to the tes- tator, and the conversations and circumstances occurred which I have before stated. 1. Was the gift to the son a donation inter vivos or mortis causa? It is proved that the testator was at the time in his last sickness, and that during the whole course of his illness he did uot expect HOW REVOKED. 715 to recover. In such a case, the presumption of law is that the gift was intended as a donatio mortis causa. 1 Roper on Leg. 22. 2. It having been shown that after the gift the testator resumed possession, it is urged on one side that the gift was revoked, and on the other, that possession having been obtained by the donor without the consent or privity of the donee, the gift was not legally revoked. The last point involves the proposition that the donor cannot revoke the gift without the consent of the donee. I would remark, in the first place, that if this be so, it is a soli- tary exception to dispositions of property made in view of death, by the voluntary bounty of the donor. It is true that a will does not revoke a donatio mortis causa ; but the reason is that the will does not speak till the testator's death, — till the very moment the donation by its terms has become absolute, — when of course it is too late to revoke it. On the donor's death, the donee's title becomes absolute, and therefore irrevocable by a will, which from its nature is inoperative during the donor's lifetime, the only period during which the donation could be revoked. It is. insisted, however, that, inasmuch as the entire dominion of the donor over the property is transferred to the donee, no right of revocation exists. But this rule, as I understand it, does not mean tliat the donor reserves no right of revocation ; but only that he parts with the control and possession of the property (Williams on Ex. 654) ; that there is not a partial but absolute delivery and change of possession. If such an absolute delivery is inconsistent witii a power of revocation by simple reclamation, it is just as in- consistent with a revocation in case of the donor's recovery. Such an argument would destroy the peculiar character of this class of donations, and transform them into pure irrevocable gifts inter vivos. The trutli is, that the whole of this doctrine of revocation is a rule of law. The law declares tliat a donation mortis causa is rev- ocable in case the donor recover ; and that, too, notwithstanding the gift was in express terms absolute, and the delivery was abso- lute. I do not see in any case that the power of revocation is inconsistent with absolute dominion in the donee, existing under a condition annexed by the law to the gift, that the donor may re- sume the property. An attorney in fact, for the time being, has full authority and absolute dominion within the scope of his power ; 716 gifts' mortis causa. and yet the power may be revoked at any instant. In the sense contended for by the counsel of the executor, a donee has not abso- lute dominion over the subject of the gift ; though his possession for the time is absolute, his title does not become perfect till the donor's death. Before that period, he cannot dispose of tlie property. If that event should not happen, the donor may resume his gift. It is conceded on all hands that if the donor recover the gift will be defeated. This is a condition the law implies ; and if the law likewise implies that the gift may be reclaimed at the pleasure of the donor, the latter condition is no more incongruous with the possession and dominion of the donee than the former. It is admitted tliat the gift may be revoked in the donor's life- time, by resumption of possession ; but if that means that the sub- ject of the gift must come back into tiie possession of the donor by the consent of the donee, it amounts only to tiie simple truism, that both parties can by mutual agreement annul the transaction. But if by resumption of possession a reclamation of possession is in- tended, then the gift can be revoked at the option of the donor. Tliis seems to be tlie view taken in Bunn v. Markliam, 7 Taunton, 224, wliere Gibbs, C. J., says, " It is in tlie power of the donor at any time to revoke the donation before his death." In Ward v. Turner, 2 Vesey, Sen. 433, Lord Hardwicke does not declare that an actual resumption of possession is necessary to constitute a valid revocation ; but, on the contrary, he cites the Commentary of Vinius to the effect that the donor, where tlie gift was defeated by " recovery or revocation,^' had his action against the donee. Ibid, p. 439. Suppose the donee dies before the donor, does the gift stand ? In Ihe case of a will, the prior decease of the legatee causes the legacy to lapse. This was the rule of the civil law in respect to donations mortis cauaa ; and in the same breath this was declared, the power of the donor to revoke was likewise expressed. The terms or conditions on which tiie donor can recover the subject of the gift are thus stated in the Institutes : " Sin autem supervixis- set is qui doiiavit, reciperet ; vel si eum doiiationis psenituisset, aut prior decesserit is cui donatum sit." Inst. lib. 2, tit. 7, § 1. Again, in the Digest, it is laid down : " Mortis causa donatio, etiam dum pendet an convalescere possit donator, revocari potest." Digest, 1. 39, tit. 6, § 16, item § 30. Tlie three conditions annexed to the gift by the civil law, which HOW EEVOKED. 717 on happening defeat the donation, are : 1st. The recovery of the donor ; 2d. His repentance of the gift ; 3d. The death of the donee before the donor's decease. These are separate and independent conditions. Ayliffe says, the gift " may be revoked by the donor's repenting thereof." Parergon, 331 ; Bracton, lib. 2, c. 26, § 1. In Jones v. Selby, Prec. Ch. 300, the Chancellor said : " You agree that a donatio causa mortis is a gift in prcesenti, to take effect in futuro after the party's death, as a will; and that it is revocable during his life, as a will is." Chancellor Kent speaks of these gifts as " conditional and revocable, and of a testamentary charac- ter." 2 Comm. 445. In Wells v. Tucker, 3 Binney, 370, Justice Tilghman says : " It is contended on the part of the plaintiff that a gift of this kind passes the property immediately, and is not subject to revocation by the donor. Without absolutely committing myself, I incline to the opinion that in this, as in severalother particulars, it partakes of the nature of a legacy, and is revocable." In the same case Justice Yeates describes the donation as " subject to countermand and revocation." In Nicholas v. Adams, 2 Wharton, 22, Justice Gibson states accurately the three modes of defeasance acknowledged by the civil law. His language is, that it is " defeasi- ble by reclamation, the contingency of survivorship, or deliverance from the peril." I find nothing against the doctrine, unless it be the language of the Vice-Chancellor, in Reddel v. Dobree, 10 Simons, 244, who, speaking of an alleged donation, characterized it as a gift which " was always liable during the lifetime of the testator to be recalled by him ; " and " therefore the very essence of a donatio mortis causa " was wanting. The gift in that case was of money that might happen to be in a certain box at the testator's death, and on condition that up to the time of his death he should retain " the complete dominion over whatever might be placed in the box." The opinion of the Vice-Chancellor is, substantially, that the res- ervation of this dominion is inconsistent with the essence of a donatio mortis causa. If no more than that was intended, the doc- trine is but another form of stating that there must be a complete delivery. If it was designed to declare tliat when there had been a complete delivery, the donor could not revoke the gift, such an opinion was not called for by the case in hand, and is not agreeable with the authorities. There are several cases besides that of Red- del V. Dobree, which might be supposed to imply that the donor had 718 GIFTS MOKTIS CAUSA. no right to revoke (4 Dru. & War. 159, 285 ; 2 Coll. 356 ; 8 Mee. & W. 401) ; but I think they proceed on the ground that there must be an absolute delivery, a change of possession and dominion, so as to vest the full possessory title in the donee, subject only to such rules as the lav? applies to this class of gifts. Tliat a donatio mor- tis causa cannot be revoked at the will of the donor, I find nowhere decided, or distinctly asserted ; while the rule of the civil law, that it could be revoked if the donor repented, even while it was uncer- tain whether or not he would recover, is clearly laid down in the Digest, and has been admitted to be the rule at common law, by a number of distinguished judges, although I am not aware the point has expressly arisen as the subject of distinct decision. Applying this rule to the facts in evidence, I am of opinion that the testator conceived this gift to be revoked. After making the donation, he made a change in his will, and substantial alterations as to the disposition of his property, in favor of the donee. When that act was accomplished, his wife brought these bonds to him, and asked wliether she should distribute them among his children. He said, " No," and directed them to be placed in the depository where he kept his valuable papers. That direction was not only a resump- tion of the possession, but an indication of a change in his views in respect to the disposition of the property. His subsequent con- duct, in calling for the box, inquiring whether the bonds were there, and directing his daughter to lock the box, and give the key not to his son, but to the other executor, after his death, confirms the idea of revocation, and shows he intended the bonds to come into the possession of liis executor, after his decease, as a part of his estate. I think, therefore, tliat tiie revocation has been sustained". The jurisdiction of the surrogate to try this question has been questioned by the counsel of the donee. The surrogate has juris- diction to try every question necessary to tlie settlement of the accounts of the executor. It is competent for the legatees, on the accounting of the executor, to produce evidence to charge him with more assets tlian he acknowledges in his accounts to have received. Tliey may prove the testator had assets which the executor should have collected, or which he has received and not brought into his accounts. In the present case, the legatees assumed the last posi- tion. They sought to charge the executor with the amount of these bonds, and showed the bonds had belonged to the testator in his lifetime, and that the executor had admitted they were in the pos- session of the testator at the time of his death. Had th^ case JURISDICTION OF SURROGATE. 719 Stopped there, it would have been my duty to have charged the executor with the amount of the bonds. But he sets up a gift by the testator ; and in order to decide whether he is liable or not for the bonds, the question of gift must be determined. The executor himself raised this point, to exonerate himself from liability ; and it is necessary to decide it in order to settle his accounts, and make a final decree for the distribution of the estate. If an executor can retain assets on the plea of a gift causa mortis, and then successfully impeach the surrogate's jurisdiction to inquire into the validity of this plea, the power of this court in respect to the settlement of accounts and the adjustment of estates is at an end. I am very clear that this objection is not tenable, and must there- fore decree distribution, in accordance with the conclusion to which I have arrived, respecting the revocation of the donation by the testator before his decease. It may be proper to make brief reference to some few of the later decisions upon this important topic. In Moore v. Moore, 22 Weekly Reporter, 729, Vice- Chancellor Hall held that scrip certificates of i-ailway srock could not be made the subject of a donatio mortis causa, by the mere delivery of the certificates, following. Ward v. Turner, 2 Ves. Sen. 431, where Lord Hardwicke decided that South Sea stock did 'not pass under a delivery of the receipts, although there was strong evidence of an intent to give it mortis causa. His Lordship, the Vice-Chancellor, at the same time admitted that some of the modern cases had carried the law upon this point much further than the old ones. But it was further held in the case of Moore v. Moore, by the learned Vice-Chancellor, that where the husband, a few days before his death, gave a deposit note, secur- ing money at his bankers, to his wife, saying, "Here, missis, this is for you," it made a good gift mortis causa. • And it has been held that a savings-bank pass- book may be the symbol of the delivery of the money entered upon it, as a gift mortis causa, when such is the intention of the donor. Tillinghast v. Wheaton, 8 Khode Island, 636. See also Camp's Appeal, 36 Conn. 88, where it is held such a gift is valid inter vivos. But the gift and delivery of a check upon a bank payable to bearer was held not sufficient to pass the money as a gift mortis causa. Rhodes v. Childs, 64 Penn. St. 18. And the gift of the money in a savings bank, which the donee had deposited for the donor, as Bis agent, and still held the pass- book, no act of delivery of the book being done, was. held not sufficient to pass the money as a donatio mortis causa. French v. Raymond, 39 Vt. 623. This last decision seems to us more in accordance withthe former rules upon the sub- ject than many of the other cases referred to in this note. But it is obvious the courts are disposed, more and more, to relax the rules of i-estriction upon this kind of gift. Baker v. Williams, 34 Ind. 647. The declarations of the donor, made after the gift, to strangers to it, are not competent evidence to prove it. Rockwood v. Wiggin, 16 Gray, 402. But if made to the donee, such declarations will be competent evidence. Dean v. Dean, 43 Vt. 337. PART YL SELECTION OF LATE CASES ILLUSTRAT- ING THE DOCTRINES OF THE PRECEDING CHAPTERS. PART Yl. SELECTION' OP LA.TE CASEs' ILLUSTRATING THE DOCTRINES OP THE PORMER CHAPTERS. I. Burden op Proof ; Test'amentary Capacity ; Undue Influence. . Thompson v. Kyner, 65 Pennsylvania State Reports, 368. 1870. The law presumes testamentary capacity until the contrary is shown. The practice of asking the subscribing witnesses to a will, whether the testator appeared of sound and disposing mind and memory, at the time he executed his will, is form merely, for in case of death, absence, or incapacity of the witnesses to testify, proof of their handwriting satisfies the requirement of proof of execution. Testamentary capacity implies that the testator has sufficient mind and memory to comprehend the transaction of making his will; i.e., the nature and extent of his property and the claims of all interested in the distribution of it. Undue influence must be such as to destroy the free agency of the testator at the time of making his will. The opinion of the court by — Thompson, C. J. Testamentary capacity is always presumed to exist until the contrary is established. An abnormal condition of mind is never presumed wlien a testator makes his will, unless a previous aberration be shown of such a nature as may admit of a presumption of recurring unsoundness at any time. 4 Wash. C. C. Rep. 262 ; 8 Shepley, 461 ; 5 Johns. 144 ; 1 Pet. C. C. Rep. 166. It is true, the witnesses to a will, when produced for pro- bate, are asked whether they regarded the testator of sound and disposing mind and memory ; but this is form merely, for in case 724 TESTAMENTARY CAPACITY. of death, absence, or incapacity of the witnesses to testify, proof of their handwriting satisfies the requirement of proof of execution. What constitutes^ the want of a sound disposing mind and memory is incapable of a definition suited to all cases. Every case is, to a great extent, to be tested by its own facts, circum- stances, and surroundings. We can do but little more than gener- alize in regard to the subject. As the will before us is contested on the grounds of want of capacity in the testator to make a will, and also undue influence in executing it if he had capacity, we may as well here refer to some autliorities on these points, which show the opinions of courts and writers in similar cases, and which are regarded as tests in such cases since their announcement. On the subject of testamentary capacity, 1 Redfield on Wills, p. 124, says : " The result of the best considered cases upon the sub- ject seems to put the question of understanding requisite to the valid execution of a will upon the basis of knowing and compre- hending the transaction ; or, in popular phrase, that the testator should, at the time of executing the will, know and understand what he is about." " Old age, failure of memory, or habitual drunkenness, will not Qper se) constitute incapacity, to execute a will." 1 Green Ch. Rep. 11 ; 5 Johns. Ch. 158. And in 2 Green, 581, it is said, " the power of making a valid will is not impaired by the approach of old age." In Converse v. Converse, 21 Vt. 168, it is held that, " if the testator was at the time capable of understand- ing the nature of the business and the elements of the will, that is, the nature and extent of his property, and the persons to whom he meant to convey it, and the mode of distribution, it is suffi- cient." Tliis is our rule, as stated in McMasters v. Blair, 5 Casey, 298. " To understand in detail," say this court, " all that he is about, is quite sufficient." In Daniel v. Daniel, 3 Wright, 191, the substance of this rule is stated in the court below, but more definitely expressed by this court. " A sound and disposing mind and memory," say the court, " is one in which the testator is shown to have had, at the making and executing his will, a full and in- telligent consciousness of the nature and effect of the act he is engaged in ; a knowledge of the property he possessed ; an under- standing of the disposition he wished to make of it by the will, and of the persons and objects he desired to participate in his bounty. It is not necessary he should collect all these in one UNDUE INFLUENCE. 725 review. If he understands in detail all he is about,, and chooges with understanding and reason between one disposition and an- other, it is sufficient." This is but an expression of what was said in Storms v. Vancleve, 4 W. C. C. Rep. 262, where the court, in regard to the testamentary capacity in tliat case, puts to the jury the inquiry, " To sum up the whole in the short, simple, and intel- ligible form, was his mind and memory sufficiently sound to enable him to know and to understand the business in whicli he was en- gaged at the time he executed his will ? " These citations, to which many more might be added, contain, in a generalized form, a rational rule on this subject, which is entirely capable of application by a court and jury. It is not meant in any of them tliat the mind may not be weakened by old age, or sickness, or other causes. That may be the case, and no alienation or abnormal condition exist. Weakness alone will not invalidate a will if mind and memory exist sufficient to understand the subject in hand, and to direct intelligently the dispositions desired to be made of property. The test of all this is to be of the time when the will is made, including some latitude of proof be- fore the execution, and immediately, as contradistinguislied from remotely , after it. Tiie most usual attack on the will of an aged testator, and it is made here, is undtie influence, which is, of course, a concession of capacity, although weak. In a recent case, this court has given its view of what constitutes the requisites to overturn a will on this ground, and I will content myself with referring to it alone. In Eckert v. Flowry, 7 Wright, 4:6, Strong, J., in speaking on the subject, said : 't It (undue influence) may be either through threats or fraud ; but however exercised, it must, in order to avoid a will, destroy the free agency of the testator at the time when tliB instrument is made." In tlie language of Woodward, J., ).a McMahon v. Ryan, 8 Harris, 329, " it must be a present con- straint, operating on the mind of the testator in the very act of making the testament." Tlie learned judge, proceeding to the facts of the case, said : " Unless, therefore, there was some evidence tending legitimately to prove that some fraud liad-been practised upon tiie testatrix at that time (tlie 21st of June, the date of the will), or that some misrepresentation had then been made, or that some physical or moral coercion had been employed, sucii as to destroy her free agency, the court erred in submitting to the jury 726 DECLARATIONS OP THE TESTATOR. the question, whether undue influence had been exerted." . . . " Neither moral nor physical constraint is to be inferred from mental weakness alone. That undue influence, which suffices to destroy an alleged will, is distinct from weakness, and has no necessary connection witli it." All this is fully supported by the best authorities, and is to be regarded as a true exposition of what it treats. As to the assignments of error, then : 1st, the first is upon an exception taken to the exclusion of a portiqn of the offer contained in the first bill of exceptions. That portion referred to alleged declarations of tlie defendant, without limitation as to time, place, or the circumstances of making them. The court rejected all but such as related to the sanity or mental capacity of the testator at or before the time when the alleged will was made, or within a short period thereafter. This was right on every principle. Such declarations are of slight weight at all events ; not sufficient to impeach a will on the ground either of want of capacity or of undue influence, or materially to aid in it. Tiiey must be shown to have been made when tlie subject of them is a transaction of a present or recent nature, showing that the mind of tiie declarant is actually in contemplation of what it has been referring to. The testimony offered referred to alleged settlements and transac- tions about tlie testator's farm, or the rente, issues, and profits thereof, and conversations of the parties relative thereto sub- sequent to the year 1855, the year in which the will was made, and the admissions and declarations of the defendant in regard to his sanity and mental capacity. This much of the offer was ob- jected to, and the objection sustained, excepting so far as it related to a time prior to tlie execution of the will, or to the time of its execution, or within a short period thereafter. Tliis was a just and proper discrimination. The mental capacity of the tes- tator was to be judged of by its condition at the time he performed the testamentary act. " Nothing else in the case," said Woodward, J., in Stevenson v. Stevenson, 9 Casey, 472, " was worthy the con- sideration of the jury." Tlie offer, liowever, was unlimited both as to the time before and tlie time after the execution of the will. It would have been error to have admitted the offer as proposed, either for the purpose of impeaching capacity, or showing undue influence. Both grounds upon which this will was attempted to be assailed required the testimony to refer to the time of its exe- UNDUE INFLUENCE. 727 cution. If the evidence tended to support either, some latitude in regard to the condition indicated by the proof might be properly- allowed as corroborative of that condition. But the offer in this case showed neither incapacity nor undue influence at the time. It was not at all inconsistent with testamentary capacity or entire independence. The preponderance of testimony in this case was, that the testator went alone to his lawyer, and got him to draw his will. He did not go there under compulsion or instruction from any- body as to liow his will was to be drawn, or who were to be the recip- ients of his bounty. At least there is no testimony to tliis effect. The tlieory of the plaintiff's case rests on a presumption from a pre- sumption, which is not allowable; namely, that the testator, being an old man, must be presumed to have been weak, and, therefore, it is to be presumed that the defendant, who was taking charge of his farm, and was an active-minded man, coerced his will. Weakness alone proves neither want of capacity nor undue influence. Hun- dreds of cases show that mere weakness does not incapacitate the making of a will, and it must not be implied from such a circum- stance alone that a devisee has been guilty of a wrong and fraud in procuring a devise of property which it might be supposed he would not have been likely to have obtained, except by coercion of his will. Such a thing would be a fraud, not only upon the tes- tator, but upon his heirs, equally entitled to liis beneficence as was the intermeddling procurer of the devise to himself, and it is not to be presumed, but is to be established by competent and clear evidence. The argument of the able and industrious counsel for the plaintifi" in error on this point, I think, was hardly ingenuous in one particular. It assumed, as proved, the pre-existence of some sort of dementia on the part of the testator prior to making his will, and that the proposed testinlony, including the defendant's declarations, went to disprove a lucid interval when the will was made. There was no evidence whatever of previous dementia, and, consequently, no .place for any such argument. It would be a most extreme use of the admissibility of inference from facts to allow it to be inferred that, because an old man, worn out by time and toil, yields up to the management of a son that which he can no longer, from physical inability, manage himself, that this pru- dent and wise result is to bo ascribed to insanity or dementia. There were no other grounds than these, that I can see, for infer- ring lunacy ; and the necessity of proving a lucid interval was not, therefore, in the case. 728 CHARGE OP THE JUDGE TO JURY. But it is further argued that the testimony offered would have shown that the state and condition of the testator's mind was un- sound from weakness and decaying intellect after the making of his will, and therefore no presumption was to be made in its favor by subsequent acquiescence in it. I admit that proof to rebut a material presumption may be given. This has often been decided, and, as in other matters of proof, tlie order in which it may be given is subject to the choice of the party offering it, and to the discretion of the court as to the time of receiving it. But the pre- sumption to be rebutted must always exist or arise out of some state of facts in the case. For instance, in order to give room for such a presumption as acquiescence by the testator in a will once made would afford, it should appear tliat there was something tending to show undue influence. That not being in the case, the presumption was of no consequence or importance, and the offer to rebut it was foreign to the question raised. Wiiat is here said is applicable to the second bill of exceptions also. This offer was to sliow the testator's condition of mind until his deatli, — that he was weak and imbecile. It was overruled on objection by defend- ant, and tlie court charged the jury, in answer to his fifteenth point, that, inasmuch as he had objected to the testimony showing his condition offered by the plaintiffs, he should not have the benefit of the presumption of continued acquiescence, unless he affirmatively proved his continued competency, wlien the otlier side miglit rebut. The defendant did not accede to this, and the case stood alone on the proof of his capacity, and the proof on the sub- ject of undue influence at the time of making tlie will. Tlie plain- tiffs were, tlierefore, not injured in the rejection of testimony to rebut a presumption which was not allowed to be insisted on. For all these reasons, the assignments of error, based on the bills of exception as to the rejection of testimony, are unsustained. It is not possible, with a due regard to otlier duties pressing upon us, to answer in detail the positions taken by the learned counsel for the plaintiff in error. I shall notice them cursorily only. Til© strong expression of opinion of the learned judge com- plained of, after recapitulating the testimony in support of the testamentary capacity of the testator, is the subject of exception. It was but an opinion ; it did not bind the jury, for all the facts referred to were submitted to the jury for their consideration, to CHARGE OP THE JUDGE TO JURY. 729 form their own judgment of in the general charge. The expres- sions of opinion are very short of the cases cited to prove it error, such as Cadbury v. Nolen, 5 Barr, 320 ; Keeler v. Vantuyle, 6 Barr, 250 ; Strohl v. Levan, 3 Wright, 177. I hold the opinions expressed are justified on the principle suggested in Graff v. The Pittsburg and Steubenville Railroad Company, 7 Casey, 489. A court could hardly have permitted a verdict to have stood against the preponderating evidence in the case, over what, by all the rules suggested, was proper testimony in the case of a will attacked for want of testamentary capacity, almost none of it applied to the time of making a will. But aside from tins', the court only ex- pressed its opinion, and did not in any way bind the jury to follow it. There was no error in this. Another complaint is, that the learned judge said that it needed much less capacity to make a valid will " than is sufficient, in most cases, to transact ordinary business," certainly, than was required to make a simple will like the one in hand, " where the testator gives his wife what the law gives her, $400 to each his children, excepting one, and to him the remainder." This point was, at best, an abstraction in its bearing on the case, but in general it was entirely true. There was no error, therefore, in this. As to the point in the argument, taking exception to wliat the learned judge said, in relation to the testimony, detailing what Mr. Eoss, deceased, who drew the will, said on the evening of the day he drew it, little need be said. I must say, however, tiiat I am not disposed to concede the propriety of the admission of what the deceased subscribing witness said on tlie occasion. It was ad- mitted, and the plaintiffs have nothing to complain of on that score. I do not think the court would have been justified at all in charging the jury that the evidence of what he said " was of grave importance in estimating the actual fitness of Mr. Kyner to then dispose of his estate." Ross represented him, according to the testimony, as " excited and confused " at the time. He did not say he was imbecile, or any way incompetent to make a valid tes- tament. He was " excited and confused." How long this con- tinued, whether it was momentary or continuing, or whether it amounted to inability to declare intelligently liis wishes, is not in- timated, — is left in the dark and entirely to conjecture. It did not, in our opinion, in the least impeach the testimony which the suggestion of the witnesses imported ; namely, the presence of tes- 730 UNDUE INFLUENCE. tamentary capacity. Nor did the superadded declaration, that he would hold the will in his own hands, add any weight to the dec- laration. A great many wills might be sot aside if such remarks of a deceased subscribing witness, not amounting even to an intima- tion of a belief of incapacity, were allowed to outweigh the effect of attestation by the witness. We have examined the elaborate argu- ments presented to convince us of error in the court on the trial below, and the answer to it, and considered all the testimony, and we see nothing in any of the complaints made that causes a doubt of the accuracy of the court. II. Undue Influence. 1. Lewis V. Mason, 109 Massachusetts Reports, 169. 1872. As tending to show that the son of the testator had the power to control him, the fact, that on one occasion, within one or two years before the execution of the will, when the testator was talking loud, the son told him to " shut up and stop his noise,'' and he obeyed, which was called out on cross-examination of one of the witnesses of the proponents of the will, is competent evidence upon the issue whether undue influence was exercised by the son in procuring the will. Upon the issue whether the will was obtained by the undue influence of some of the testator's children, the statement of one of these to another child, that the latter should not continue to reside in the testator's house any longer, and that they had got the testator just where they wanted him, and the statement of another child to the same import, made not long before the execution of the will, is competent evidence, as tending to show a combination or conspiracy among some of the children to keep control of the testator, and to exclude others from being near him. And the conduct and declarations of the testator up to the time of his death, manifesting tenderness and affection towards those children, virtually disin- herited by the will, are competent evidence to show the state of his feelings towards them. It is competent evidence, coming from a physician, but not an expert in mental diseases, who had been the family physician of the testator many years before the execution of the will, and who last saw him four years before that time, that he then " appeared as if in the last stages of second childhood," as tend- ing to show want of testamentary capacity. Where the parties agree to admit, upon the trial, that one of the subscribing witnesses would testify in a certain agreed manner, if he were present, COMMENTS ON THE TESTIMONY. 731 and that this shall /be treated as testimony in the case, this gives the party against whom the testimony is thus received the same right to prove contra- dictory statements made by the witness, with a view to impeach his credit, as if he had testified in court to the facts agreed as his testimony. The fact that the ijperson charged with procuring the will, by undue influence, had induced the testator to dispose of his property by sundry conveyances, arid that the testator, when informed of it afterwards, said he did not know of it, was held admissible, as tending to prove undue influence. The opinion of the court was delivered by — Ames, J. We do not think that any of these exceptions should be sustained. The fact testified to by the physician, Wakefield, was brought out upon cross-examination, and was admissible as having a ten- dency to show that, on the occasion referred to, Charles H. Lewis had both the power and the inclination to exert, by means of angry and imperious language, acontrolUng authority over the testator. The weight and importance of such testimony would be for the jury to consider, and might be very trivial if only one instance of the kind were proved. Its competency admits, in our opi^nion, of no doubt. The proceedings upon the petition that the testator should be put under guardianship, as an insane person and incapable of tak- ing care of himself, raised no question except as to his sanity. Upon the issue on that point, the verdict has been in favor of the appellants, and they have therefore not been prejudiced by the rejection of the judgment of the court upon that petition. The proceedings were competent for the purposes for which they were admitted, and have become immaterial and unnecessary for any other. , The testimony as to the language addressed by Charles to his brother Natlianiel was admissible, for the reason that it had some tendency to show a purpose on the part of the former to keep the testator under his surpervision and control, and to exclude other members of the family from any opportunity to interfere. It was at least proper for the jury to consider. So also the fact testified to by the daughter Mary Ann, had a tendency to show what was the testator's state of mind towards her, and that his affection for her continued unimpaired to the last. It is true that he might, nevertheless, have reasons for giving her by his last will a smaller 732 UNDUE INFLUENCE. share of the property than he bestowed upon others of his family. The improbability, however, that he would do so, if left to the ex- ercise of his own free and unbiassed judgment, was an argument which the appellee had a right to urge, and to substantiate by all competent evidence. With regard to the testimony of Dr. French, it appears that he had been the testator's family physician, although he had not visited him as such since 1860, and had seen very little of him since 1866. He described the testator's apparent physical condition, and added that "he appeared as if in the last stages of second childhood." We think that, with his professional knowledge of the testator's constitution and former condition, and competent as we must assume tliat lie was to appreciate the appearances of decay and loss of faculties implied in liis description, the last answer which he gave was admissible under the rule given in Hastings v. Rider, 99 Mass. 622. Tlie written instrument, signed by the testator and deposited with the appellee, setting fortli the terms upon which Charles and his wife lived with the testator, was admissible as showing the rela- tions which the latter understood to subsist between himself and them, in regard to their joint occupancy of the dwelling-house. The appellants, we think, have no ground of exception to this ruling. The agreement as to what tlie attesting witness Tufts would testify if present, in regard to the execution of the codicil and the sanity of the testator, gave the same right to the appellee to con- tradict that witness, by proof of conflicting statements on his part at other times, as if the witness had been present and had testified. Such proof was not introduced for tlie purpose of obtaining that witness's opinion as to the eifect of tlie instrument, or the conduct of the appellants, but to contradict his testimony. The evidence- offered for the purpose of impeaching the testimony of Almira Lewis stands upon the same ground. The other facts, namely, that Charles had disposed of the testa- tor's property by mortgage, &c., which he had induced the testator to sign, and which the testator had afterwards declared that he did not remember or understand, and tliat he had transferred property at different times to Charles, were proper for consideration upon the question of undue influence. Tiieir weight and effect were of course to be passed upon by the jury. STATEMENT OP TESTIMONY. 733 2. Lynch y. Clements, 24 Mio Jersey Equity Beports, 431. 1874. Undue influence must be such as to overcome to some extent the free and uncon- strained action of the mind of the testator. Declarations of the testator, made long after the execution of the will, are not evidence of such influence. The provisions of the will being unequal and unjust, will not alone prove such influence, but may require explanation, and, in default thereof, will add great force to other evidence in that direction. It is not easy to define undue influence in any way, to meet all cases. It must depend upon the facts and circumstances of each case. i The opinion of the court was delivered by — DoDDS, Vice-Chancellor. The object of this suit by James Lynch is to recover from his brother and two sisters the bulk of his father's estate, which, as residuary legatee, he claims under the will ; and the defence is that the will was procured by undue influence on his part, and that he is therefore not entitled to any relief. The testator, Bernard Lynch, was for many years a resident of Paterson, in this State, where he died on the twenty-fifth day of November, 1861. His will was signed on the 13th of the previous September, and proved in the surrogate's office of Passaic, on the 16th of tlie following December. At his death he was seised of a farm in Paterson, of sixty-eight acres, which he had owned and occupied for twenty-one years, and from wliich, by his labor, he had derived a support. He was advanced in years when he died, and left surviving him his widow, Margaret, and four children, James, Elizabeth, Bernard, and Margaret. Margaret was then sixteen years of age, and Elizabeth considerably older. Both of them had lived at home, working with their parents, and were doing so at their father's death. Bernard, a young man, had enlisted in the war, and James, the oldest of the children, had left home, unwilling to work, when about sixteen years old, and had subsequently, for fifteen years, or thereabouts, led a profligate and disreputable life in the city of New York. He had assumed the name of James Collins, followed no legitimate business, but was a gambler, keeping at one time a gambling-house in Broad- way, and at another a low house and drinking place in Water Street. He made occasional visits at his father's, in Paterson, while his father was alive, and his father visited liim in New York. 734 UNDUE INFLUENCE. He lent his father money, at different times, and at his death held a mortgage for $3,000 on the farm. The will gave $1,000 to Elizabeth, $500 to Margaret, and |1 to Bernard ; the residue, both real and personal, to the widow for life, and after her death, to James. The widow and James and one John O'Neil were the executors, and were empowered by the widow's consent to turn the farm into money. It was sold in 1866 for $21,000, out of which the mortgage on it for $3,000 was paid, $14,000 of the price secured by a mortgage, and $4,000 paid in cash. The widow then purchased two lots in Paterson, and built on them a house, out of the estate means in her hands, and lived- in it with her three children till she died, in March, 1872. Before her death James had got from her $8,000 of the principal, $4,000 at one time and $4,000 at another, and urged her to let him have more, which she refused. The two suras, $1,000 each, he spent in gambling and betting. In July, following her death, he filed his bill in this suit to get what was left. The real estate being vested in the widow individually, descended by law to the four children as tenants in common, but the three children, defendants, are in possession of it, and whatever of the personalty remains, is also in their hands. Tlie complainant asks tliat they be decreed to convey to him the real estate, and to account for and pay over the moneys or personal effects derived from the father's estate, which, as representing" the mother, or otherwise, they may have. That tlie will makes a grossly unequal distribution of the prop- erty among the four children, giving most of it to one so unworthy, must cause instant and strong disapproval, but it is hardly needful to say that the want of wisdom and justice thereby evinced is not sufficient by itself to make the will invalid, or to prevent this court from giving aid to carry out its directions. The testator had a clear legal right to give all his property to James, to tlie exclusion of his three other children, entirely, without regard to their respective characters or needs, and against natural affection and duty. Tlie only inquiry in the case is, was the instrument by which his property was so disposed of his will? Was it the product of his own free and personal volition, or were his free agency and volition in the execution of the instrument, or in respect to any of its directions, overborne by the domination of James ? If the former, the complainant is entitled to take the UNDUE INFLUENCE. 735 whole of the remaining estate, though only to squander it in folly and vice ; but if the latter, his suit will be denied, not by reason of the contents of the instrument, but on the ground that it was not, in law or in fact, the testator's will. It is not suggested that there was any want of testamentary capacity. The evidence is, that the testator had it, and was not so affected by old age or disease, though to some extent affected by both, as to expose his will, on this ground alone, to successful dispute. It is impossible to define or describe with precision and exact- ness what is undue influence, what the quality and extent of the power of one mind over another must be to make it undue in the sense of the law, when exerted in the making of a will. Like tlie question of insanity, it is to some degree open and vague, and must be decided by the application of sound principles and good sense to the facts of each given case. In Trumbull v. Gibbons, 2 Zab. 136, it was said by Chief Justice Green : " All influence on the part of the devisee, in procuring a devise in his favor, is not undue influence. The influence of affection, of kind offices, even of persuasion, does not invalidate a will ; otherwise the very motive to the testator's benevolence would make void the gift. The influ- ence which the law denominates as undue influence over the testator, must be such "as to destroy his free agency, and amounts to moral or physical coercion ; it must be proved, moreover, that the act done was the result of such coercion ; there must be a control exercised over the mind of the testator, or an importunity practised which he could not resist, or to which he yielded for the sake of peace." The rule was expressed as follows in Turner v. Cheesman, 2 McOarter, 265 : " The influence exercised over a testator which the law regards as undue or illegal, must be such as to destroy his free agency, but no matter how little the influence, if the free agency is destroyed, it vitiates the act which is the result o^it." In Jarman on Wills (2d Amer. ed.), vol. i. p. 36, it ia said: " The influence which would subdue and control a mind natiirally weak, or one which had become impaired by age, sickness, intem- perance, or any other cause, might have no effect to overcome or mislead a mind naturally strong and unimpaired. But in any case the influence that will vitiate a will must be such as in some degree to destroy the free agency of the testator, and constrain him to do what is against his will, but what he is unable to refuse or too weak to resist." 736 UNDUE INFLUENCE. The general rules applicable to the subject are thus stated in Redf. on Wills, vol. i. pp. 510, 514 : " In regard to undue influ- ence, the cases are almost infinite in number and variety. It is not possible to reduce them into any systematic classification. Where the party to be benefited by the will has a controlling agency in procuring its formal execution, it is universally regarded as a very suspicious circumstance, and one requiring the fullest explanation. So where a will is unreasonable in its provisions and inconsistent with the duties of the testator, with reference to his property and family, this will of itself impose upon those claim- ing under the instrument the necessity of giving some reasonable explanation of the unnatural character of the will. While undue influence embraces fraud, fraud by no means embraces every species of undue influence ; since it is quite supposable that one may really exercise a degree of influence over the testator in pro- ducing the testamentary act, which upon every just ground is fairly entitled to be considered extreme and unreasonable, either in character or degree, without its being really fraudulent. All such influence is unquestionably, in a general sense, to be regarded as undue ; but it must be left to the sound discretion of the triers whether it really had proceeded to the extent of virtually over- coming free agency, and so reached that point which the law denom- inates as undue in the sense of avoiding the will." The foregoing are the principles applicable to the present inquiry, and sufficiently show what I have before said, that the question, what influence is undue, must, from the nature of it, be decided in each case very much on the special facts and surroundings which that case presents. The conclusion I have reached, after listening to the witnesses in -tiiis case, and giving to their testimony the most careful atten- tion I have been able to bestow, is that the complainant exercised an infl«pnce in the procurement of the will now in question, which in thejjproper legal sense was undue, and which must prevent him from maintaining tliis suit. He testified for himself. His two sisters, on the other side, testified against him. Their statements and his, in regard to material points, are in flat contradiction. But they are corroborated and supported by the testimony of their maternal uncle, John W. Collins, a resident of Brooklyn, who was called by the defendants, and whose careful, not to say reluctant, statements, and the intelligence and apparent conscientiousness COMMENTS ON THE .TESTIMONY. 737 with which they wei-e made, entitled him strongly to credit. The complainant testified that he never b\it once had a conversation with his father about making a will, and that was nearly a year before he died. He fixes, however, the date of the conversation he refers to by a circumstance which proves that it musfc have hap- pened but a few weeks prior to his death. He says it occurred in New York, when returning with his father from a visit to his brother Bernard, then with his regiment on an island in the Bast river, and that it was after the battle of Bull Eun. He says that Bernard had had a bad spree, and that his father told him, on returning from the visit, that that fellow should never have a dollar of his money; that his father then said to him, "How would you draw up a will if you were going to draw one ? " and that he answered, " if I were you, I would give all to ray mother during her life, and after her death to suit himself." He asserts this to have been the only time he talked with his father about making a will. The evidence shows that it was not, and the conversation itself, as he gives it^ is quite consistent with the belief that the old man, who is also shown to have been accustomed to visit not unfrequently his son's place in New York, was accustomed also to ask for and defer to his will. His sister Elizabeth testified that tlie funeral of a deceased sister occurred at her father's house on the 4th of September, 1861, that James was present at it, and that he came again' nine days afterward, on the day the will was made, and went out alone with her father, who afterwards sent for Mr. Tuttle, instructed him how to draw the will, and signed it that evening. Tlie testimony of JohnW. Collins was that he attended the funeral on the fourth, that he saw James Lynch there, and heard a conversation that day, after the funeral, between James and his father, about a will : that James suggested the amounts which should be left to the children, or some of them ; that he suggested $1,000 for Elizabeth, and |500 for Margaret; and he thinks also, but is not positive, that James suggested one dollar for Bernard. The latter was not present at the funeral, being absent in the army. Collins further testified that it was said that Eliza- beth was getting advanced in years, and that |1,000 wouldn't be too little for her ; that Margaret was younger, and in all proba- bility would marry ; if she got a worthy man, |500 would be suffi- cient ; and if he should prove unworthy, |500 would be too much for him : that this was about the substance of what was said. As 47 738 UNDaB INFLUENCE. before remarked, the testimony of Collins was not that of a willing witness against James, but only that which his oath extorted, and I give full credence to his statements. He further testified tliat the old man went down to New York that night with James, and stayed with him, as he understood ; that he parted with them on the corner of Chambers Street and West Broadway ; that James kept, at that time, a place in Water Street for the resort of low characters ; that witness never visited the place but once, when he went to see James at his mother's request; that he had heard of his father's going there, and staying all night frequently. The conversation between Elizabeth and her father, not long before he died, about the contents of the will and the reasons why he gave James so much of his property, was testified to by her, and, if admissible as evidence, would exhibit the influence which he said induced him to do so. I am of opinion that these declarations of the testator, shortly after the will was made, cannot be regarded as evidence. They were objected to by the counsel of the com- plainant, and must be excluded from the case. Boylan v. Meeker, 4 Butcher, 274 ; Redf. on Wills, vol. i. p. 553. Conversations between James and his sisters were also testified to by the latter, in which he spoke of the agency he had had in the making of the will ; and if the declarations he is sworn to have made to them and their mother, after their father's decease, were in fact made, in form or effect as tliey give them, would be deci- sive and overwhelming against him. He denied that he made them ; but in weighing the evidence, and testing it by the ordinary rules to wliich testimony must be subjected, I cannot believe that their account of the conversations referred to is false in the sub- stance of them, though their literal accuracy may not unreason- ably be questioned. They occurred several years ago, and must be taken with the caution and allowance which the lapse of time should give rise to. In respect to the interests they severally have in the result of the suit, the two sisters are entitled to credit, as much at least as the brother, and upon all other grounds they must be admitted to be entitled to very much more. They testi- fied that, in the winter of 1871, when the five years for which the mortgage for the purchase-money of the farm was given, was about to run out and the principal fall due, James came over to his mother's, at Paterson, and urged her to let him have the money, when paid, to invest for her, at a high rate of interest, promising, UNDUE INFLUENCE. 739 they think, fifty per cent ; that, when she refused, he swore at her, and said he had done wrong in having the will made so as to give her the power to use the money, for she didn't know how to use it. Both the sisters testified to the particulars of this conversa- tion, and I am satisfied that their story is substantially true. Another conversation occurred at their mother's house in 1868 or 1869. James had come over to get his mother to let him have money. Elizabeth remonstrated with him, and told him it was shameful for him to come up to take money from their liiother after having deprived her of |4,000 ; that she had barely enough to live on now ; that she didn't blame him so much as her father, but if her father hadn't made the will as it was, he couldn't come there for money. James said his father had made the will as he told him to make it ; he told Elizabeth that, if the will had to be made over again, she would get but |100, instead of |1,000. Both the sisters give this conversation, at which both were present. They differ in the details ; but their stories are not in conflict, and are consistent with the known facts of the case, and by no means improbable in themselves. Two other conversations were sworn to by Elizabeth, as occurring between James and herself, in both of which the same recognition of his control over the making of the will distinctly appeared. All the facts and circumstances of this case justify and necessi- tate the inference that in making this will the old man acted under the control and dictation of James. He was afi'aid of his power as the holder of the mortgage on his farm. He was enfeebled by age and disease. He knew his son to be a hard and bad man, and made the will as he directed him to make it, in the vain hope, as may well be inferred from the evidence, that he might treat the family with leniency, and possibly take care of the younger brother, whom he directed his father to disinherit. It was asserted, on the part of the defendants, that the will was made on the faith of the promise by James that he would abandon his evil life, and come back to live upon the farm when the old man should be dead. This assertion is not sustained by the proofs. 'James swore that his father asked him to come back, but that he told him he would not. The conversation in regard to it occurred, according to his testimony, about three weeks before his father's death. He was lying in his room; and, having called James in, asked him if he would not come back when he was dead. He told his father, he 740 UNDUE INFLUENCE. says, that he would not live a year on the farm to have it. I think this was the truth. There was no reason why he should say other- wise. He thought his purpose accomplished, and spoke to the old man without fear, sympathy, or affection, giving the answer that was true to his heart. He knew that no conditions were essential to the making of the will, and that no promises of con- cession were necessary then. His ascendency over the old man was the ascendency of a selfish, resolute son over a feeble and timid father. It was an interference with the exercise of free- agency on the part of the latter, and, so far as the provisions of the will are in favor of the complainant, will bar his right to the aid of this court in enforcing them. I shall advise that the bill of complaint be dismissed, with costs. 3. In the Matter of the Will of Jackman, 26 Wisconsin Reports, 104 1870. To constitute undue influence in the procurement of a will, it must, virtually, destroy the free agency of the testator ; it must be purposely exerted towards the procurement of an unjust will, and it must have been successful to some extent. The burden of proof, in such cases, rests upon the proponents of the will. The facts sufficiently appear in the opinion of the court by — Cole, J. It is conceded that the will was executed in conformity to the statute, — that Mr. Jackman was of a sound, disposing mind and memory when he made it, and had full knowledge of all its provisions. Tlie evidence upon these points is so clear, positive, and overwhelming as to remove all doubt or controversy. The only ground, then, for impeaching the will, is that it was pro(iured by undue influence. The burden of sliftwing that undue influence, within the meaning of the law, was exercised over the testator when he executed the will, is upon the contestant. It cannot be presumed from conjecture or suspicion, without reasonable and satisfactory proof of facts wliich establish the contrivance and undue influence. An experienced judge, as well as confessedly a learned and discriminating text-writer upoa wills, states the following prop- ositions as the result of adjudged cases, as to what influence must be exerted over the testator to avoid the will : — UNDUE INFLUENCE. 741 1. That it must be such an influence as to destroy the freedom of the testator's will, and thus render his act obviously more the offspring of the will of others than of his own. 2. It must be an influence specially directed towards the object of procuring a will in favor of particular parties. 3. If any degree of free agency or capacity remained in the tes- tator, so that, when left to himself, he was capable of making a valid will, then the influence which so controls him as to render his making a will of no effect, must be such as was intended to mislead him to the extent of making a will essentially contrary to his duty ; and it must have proved successful, to some extent cer- tainly. 1 Eedfleld on Wills, 524. These rules are cited with approbation by Davies, J., in deliver- ing the opinion of the Court of Appeals in Gardiner v. Gardiner, 34 N. Y. 155-161. " The amount of undue influence which will be sufficient to in- validate a will, must, of course, vary with the strength or weakness of the mind of the testator. Tiie influence which would subdue and control a mind naturally weak, or one which had become im- paired by age, sickness, disease, intemperance, or any other cause, might have no effect to overcome or mislead a mind naturally strong and unimpaired ; but, in any case, the influence that will vitiate a will must be such as in some degree to destroy the free agency of the testator, and constrain him to do what is against his will, but what he is unable to refuse, or too weak to resist." 1 Jar- man on Wills, 36. " But . . . the influence to vitiate an act must amount to force and coercion, destroying free agency : it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a testamentary act. Further, there must be proof that the act was obtained by this coer- cion, by importunity which cpuld not be resisted ; that it was done merely for the sake of peace, so that the motive was tantamount to force and fear." Id. p. 39. " A testator should enjoy full liberty and freedom in the making of his will, and possess the power to withstand all contradiction and control. That degree, therefore, of importunity or undue influence which deprives a testator of his free agency, which is such as he is too weak to resist, and will ren- der the instrument not his free and unconstrained act, is sufficient to invalidate it." Buchanan, 0. J., in Davis v. Calvert, 5 G. & J. 270, 302. " Undue influence, legally speaking, must be such as in 742 UNDUE INFLUENCE. some measure destroys the free agency of the testator ; it must be sufficient to prevent the exercise of that discretion, which the law- requires in relation to every testamentary disposition. It is not enough that the testator is dissuaded, by solicitations or argument, from disposing of his property as he had previously intended: he may yield to the persuasions of affection or attachment, and allow their sway to be exerted over his mind ; and in neither of these cases would the law regard the influence as undue. To amount to this, it must be equivalent to moral coercion : it must constrain its subject to do what is against his will ; but which, from fear, the desire of peace, or some other feeling, he is unable to resist ; and, when this is so, the act which is the result of that influence is vitiated." Gilbert v. Gilbert, 22 Ala. 529-532, by aoldthivaite, J, This language is quoted and approved in Taylor v. Kelly, 31 Ala. 69-70. These are but a very few of the many authorities which might be quoted as to what constitutes undue influence within the meaning of the law. " In regard to undue influence," says Judge Redfield, " which is a species of fraud, the cases are almost infinite in number and variety" (1 Redfield on Wills, c. 10, § 38, p. 514) ; and the correctness of this remark will certainly be confirmed by a reference to the cases cited by the learned author in the notes to section thirty-eight. But it is, probably, unnecessary to cite further authorities as to the degree of influence which the law condemns as being " undue " and " improper," and which, when found to have been exerted, will invalidate a will. It is sufficient to observe that they generally agree in saying that the influence must be such as in some degree to destroy the free agency of the testator, and constrain him to do what is really against his will, so as to virtually render the testamen- tary act the will of another rather than his own. But the influence of a wife or child, if exerted in a fair and reasonable manner, is not unlawful ; and, in order to be " undue," " it must be exerted mala fide to produce a result which the party, as a reasonable person, was bound to know was unreasonable and unjust ; and it must have the effect of producing illusion or confusion in the mind of the testator, so as either to overcome his free agency or power of judging upon the true relations between himself and those who miglit be supposed to have just claims upon his bounty." 1 Red- field on Wills, p. 527 ; Small v. Small, 4 Greenl. 220 ; Dean v. Negley, 41 Pa. St. 312 ; Woodward v. James, 3 Strobh. Law, 652. EFFECT OP THE CHARACTER OP THE WILL. 743 Now, keeping in mind these definitions as to what amounts in law to undue influence, we will proceed to consider the question, whether the evidence is sufficient to warrant the finding of the jury upon the fourth issue. It is claimed in argument, that Timothy Jackman was induced to make this will by the control- ling influence of his wife, Marcia M. Jackman, and that really he was not a free agent when he made it, the will being her act rather than the act of himself. The counsel for the contestant relies upon a number of facts and circumstances disclosed in the proofs, in support of this position, the more material of which only will be noticed. In the first place, let us consider the argument founded upon the provisions of the will itself. It appears that the testator had been twice married ; that by his first wife he had six children, four of whom arrived at maturity and survived liim ; and that he had three children by his second wife, who survived him. After his second marriage, in New York, and some twenty-five years before his death, Timothy Jackman removed witli his family to Janesville, where he afterwards resided. At this time he had but $3,000, in- cluding the $1,000 he received from liis wife. He engaged largely in various kinds of business at Janesville, — farming, milling, mer- chandising, aud banking, — and had accumulated, at the time of his death, an estate valued from $140,000 to $150,000. The great bulk of this property he bequeatlied to his wife. He did not discriminate in his will very greatly between the children by his first and second wife : he gave no one of them over $5,000, and the entire amount bequeathed them was not more than about a seventh part of his estate. Now it is said that this disposition of tlie testator's prop- erty was unjust and unnatural, inconsistent with the parental duties, and with the claims which the children, especially those by the first wife, had upon him. It is certainly true that the will is not such a one as we might have supposed the testator would make. The mind is unconsciously inclined against the will, because it does not give Nathaniel, Hiram, and Mrs-. Lappin auch a portion of the testator's estate as they would seem to have the right to expect. The claims of these children upon their father's bounty were strong and real ; they labored faithfully for their father until majority, and even after that period; and it was doubtless by the united efforts of all members of the family who were of age to work that Mr. Jackman first began rapidly to acquire his fortune ; and it does 744 UNDUE INFLUENCE. not appear that he ever made sufficient advances to all of them to compensate for the years of toil they spent in his service. He re- membered them in his will, but he only gave Hiram and Mrs. Lap- pin $1,000 each. This is surely not as liberal a provision as they might reasonably have expected from his property. But still we must not forget tiiat the law recognizes the right, in every person of proper age, to dispose of his property by will as he may think best. This principle is at the very foundation of our law and polity. The testator " may do what he will with his own ; and if there be no defect of testamentary capacity, and no undue influ- ence or fraud, the law gives effect to his will, though its provisions are unreasonable and unjust." Porter, J., in Clapp v. PuUerton, 197. The law has certainly not intrusted the courts with the power of making a will for Timothy Jackman, or any other per- son. They cannot, therefore, set his will aside on account of any real or apparent inequality in its provisions, unless upon some legal ground. Nor can we infer that Mrs. Jackman exerted such an influence over her husband, either by her importunity, mental superiority, domestic tyranny, or force of character, as to deprive him of his freedom of will, and thus render his testamentary act more the offspring of her will than his own, merely because he gave her the great bulk of his property. We must have some distinct and satis- factory proof that she exerted over him an influence which the law condemns as unlawfnl and improper, in order to avoid the will. It is consequently not enough to destroy the will to show that it was very advantageous to Mrs. Jackman, and greatly in her favor. For all this might have arisen from the fact that the testator entertained a high personal regard and aflTection for his wife, and attached a great value to her services and advice, because " she had always been," as he declared to several witnesses, "a good wife, and had always done her part" in 'the accumulation of his property and the care of his domestic affairs. Indeed, there is really no proof anywhere in the case that Mrs. Jackman ever obtained over her husband an influence which was unreasonable and excessive, and which he could not at all times efiectually resist. It is true the witnesses state that Mrs. Jack- man was a " woman of very strong mind, strong purpose, pretty tenacious of her opinion, very resolute and determined ; " yet it does not appear that she was able so to control Mr. Jackman as to CHANGE OP TESTAMENTARY INTENTIONS. 745 make him do what he did not wish, or could carry any point with him where she ought not to prevail. And the authorities agree that " lawful influence, such as that arising from legitimate family and social relations, must be allowed to produce its natural results, even in influencing last wills. However great the influence thus generated may be, it has no taint of unlawfulness in it ; and there can be no presumption of its actual unlawful exercise merely from the facts that it is known to have existed, and that it has manifestly operated on the testator's mind as a reason for his testamentary dispositions." Dean v. Negley ; Small v. Small. Another point relied on to show that Mrs. Jackman exerted an unlawful influence over her husband, is the fact that for several years prior to the time of making the will, the testator had fre- quently discussed with his neighbors and friends the propriety of making a will, and had uniformly declared that he would never make one. It certainly appears, by the most ample proof, that the testator said, in these discussions, that he should know no difference when " he got through with his property ; " " that tiie law might decide the matter ; " " that the law would dispose of his property better than he could himself ; " " that he was opposed to the policy of making wills ; " " that his property might go to his heirs accord- ing to law ; " and other like expressions. This was before he was taken sick in June, 1866. After that he changed his mind upon the subject, and made two wills. What produced tliis change in his views in regard to the propriety of making a will, the evidence does not disclose, and it would be idle to speculate upon the sub- ject. Perhaps it was the suggestions of his intimate friend, Eogers, who advised him to make a will and to settle up all his matters, and put them in shape, so that they would explain themselves with- out difficulty ; perhaps it was a consideration of the habits of John and Frederick, and an apprehension that if they should inherit their share of his property, they would squander it in vice and dis- sipation ; perhaps it was the consciousness that an incurable disease was fastened upon him, which would sooner or later produce death. It is not an unfrequent occurrence that the views of men, in a sit- uation so solemn, undergo a great change upon the most important subjects, without the influence of any one. But whether it was the operation of any or all of these considerations upon his mind, or the promptings of the esteemed affection he seems to have enter- tained for his wife, that caused him to make a will, we can never 746 UNDUE INFLUENCE. know. Certain it is that his views in regard to the policy of making a will underwent a change, and there is no warrant for assuming that this change was produced by the undue influence or overrul- • ing importunity of his wife. In the spring or summer of 1866, the testator was taken sick with diabetes; at this time he was about sixty-five years of age; he had up to that time generally enjoyed fine health and great vigor of constitution ; he always possessed a great "flow of animal spirits, was cheerful and genial in his disposition, and was a man of strong purposes and decided force of character, not likely to be controlled or tyrannized over by any one. When he became sick of diabetes, his cheerfulness in a great measure left him ; he there- after had less vigor of intellect, was considerably enfeebled in body and mind by the disease,; and for some weeks after the first attack he was pretty much confined to his house, and was unable to attend to business. His health, however, improved some during the latter part of the summer of 1866, and he was again able to be about town attending to and managing his estate, though he never became the active, strong, business man he had once been. I conclude that his health must have been much more firm in the year 1867 than it had been during the previous summer. In June, 1868, he went east with his wife to visit relations and friends, doubtless hoping that the trip might do him good ; but finally died of his original dis- ease at his brother's, in Vermont, in August, 1868. During all his sickness, it is conceded that his wife was constant and unwearied in her care and attentions to him. Now, it is claimed by the counsel for the contestant that, while Mr. Jackman was tlius confined to his house by sickness, enfee- bled in mind and body by disease, he was so subject to the con- stant control and influence of his wife, and the influence of other members of his family, relatives of hers and wholly in her inter- est, as that his free agency was finally overcome, and he was induced to make the first will, by which he gave her nearly six- sevenths of his estate, upon condition that she did not again marry, and that she paid John f 100 annually during his natural life ; and then he was induced by this- same controlling influence, which he was unable to resist, to change that will, and make the one pro- pounded for probate, in which these conditions are omitted. But it seems to me to be a sufficient answer to this argument to say, that it is impossible to find in all the testimony any reasonable and satis- COMMENTS ON THE TESTIMONY. 747 factory proof upon which to base the conclusion that Mrs. Jackman, or any person, at this time acquired such a dominion over Mr. Jackman as to destroy his free agency and his disposing power of mind. Mr. Bates, the friend and legal adviser of Mr. Jackman, states fully- the circumstances under which both these wills were made. He drew them both, and received his directions for drawing the first will from'Mr. Jackman himself, at his house. After the exe- cution of that will by the testator, at Bates' office, Mr. Jackman informed him that he wanted to change the will in one or two par- ticulars. In that conversation, Mr. Bates says that he suggested to Mr. Jackman that, by giving the property to his wife, contingent upon her not marrying again, he tied it up so that Mrs. Jackman could not dispose of any portion of it if she should want to sell it. To this suggestion Mr. Jackman replied, that upon reflection he did not care whether that condition was in the will or not ; and directed Bates to draw a new will, leaving out that condition, and also the one about paying the f 100 annuity to John ; because he believed the farm was sufficient, witli ordinary industry, to support John, and that the latter had better not have this annuity. Now, I see no reason for discrediting this clear and positive testimony of Mr. Bates. If it is to be believed, it satisfactorily shows that Mr. Jackman was not unlawfully influenced by any one to make these wills, and that they expressed the wishes of tlie testator. It is true, all the medical testimony taken on the trial tends to prove that diabetes generally occasions great suffering to the patient ; that it prostrates in an unusual degree the body and mind of the suf- ferer, " and renders him an easy prey to the influences of those about him." But we shall look in vain, through this case, for any satis- factory evidence that this disease did actually so prostrate and over- come Mr. Jackman that he was incapable of asserting his own will, but became so weak in his mind, and so facile in his purposes, as to " yield to the suggestions, opinions, and entreaties of others," and bestow his estate upon those he did not wish should enjoy it. For, though it is undeniably true that Mr. Jackman, after he was attacked by diabetes, never was the same cheerful, determined, resolute, and active man he had been, yet he was not an imbecile, — a man under the control and dominion of any one. He maintained his personal independence, his individual cliaracter. He continued, to the day of his death, President of the Rock County National 748 UNDUE INFLUENCE. Bank ; he " managed with great prudence and economy his owii private fortune, so that it was constantly accumulating on his hands." Not a witness pretends that he ever saw him when he was not in the possession of his intellectual powers, did not understand all that was said to him, and did not fully comprehend the relation of things. It does not appear that he ever uttered a foolish expres- sion, or was guilty of any extravagant conduct. His mind was clear upon all business matters. Crosby, the cashier of the bank, says that, though weak physically, yet he " never saw any thing but what his mind was clear." Folio 702. This witness added, that on one occasion after the testator's sickness, he consulted Jackman, then at the bank, about some business matter, and saw that he (Jackman) was rather inclined not to give his opinion about it. He told Crosby that he would " rather let him fix it up to suit himself." Still, it appears that after this Jackman was consulted about the business transactions of the bank. He was consulted about several loans of magnitude made by the bank in 1867 ; and all along the witnesses generally agree that his mind was clear, and his mental faculties not perceptibly impaired. His partner, Shubael W. Smith, a shrewd, careful, experienced business man, had suffi- cient confidence in his capacity and judgment to permit him to make sale of the mill which tliey owned together. The mill was sold in Jaimary, 1867, for flO,000. Mr. Alden, the purchaser, says that Mr. Jackman was the one who told him there were some reser- vations in regard to the right of way connected with the property ; that Jacliman explained what these conditions were, and transacted most of the business. And this witness also says, that he saw Mr. Jackman frequently after his attack of diabetes, and that he could see no difference in his mind between what he was after and before this sickness ; Jackman, he says, " always had a way and will of his own ; " and to the same effect is the great weight of testimony. Now of a man whose mind was so clear, whose intellectual powers were so vigorous, who always seemed to have " a way and will of his own," we are asked to hold, almost upon suspicion and con- jecture, certainly without any satisfactory proof to sustain the pre- sumption, that Mrs. Jackman, during three or four months' care in sickness, obtained such a degree of command and influence over him as to actually destroy his free agency in so important a matter as disposing of his property by a last will. I think we have no right to so hold upon the evidence. COMMENTS ON THE TESTIMONY. 749 Further, some declarations of the testator, made after the exe- cution of the will, are relied on to show that it was procured by undue influence. These declarations are : That the testator said on one occasion to the witness, Wooliscroft, that he " had made a will for the sake of peace, but he intended to tear it up or destroy it." Again, that he said to Patten, when Hiram was negotiating for the Matteson mill, that he would aid Hiram in making his pay- ments when they became due ; that he would have it put in his will, so that Hiram would have the means to make these payments ; adding, " My will never was as I wanted it." No rule of evidence is better settled than this, that all such verbal admissions and declarations are to be received with great caution. Tliey are enti- tled to no vei'y great weight, on account of the extreme liability of the witness misunderstanding the declaration, or the party himself making the declaration not clearly expressing his own meaning. 1 Greenl. Bv. § 200. But I have this furtlier remark to make about these declarations : If Mr. Jackman made the will for the sake of peace, and intended to destroy it, why did he not carry out that intention ? The will was in the possession of his friend, Mr. Bates ; and Mr. Jackman had but to step to Bates' office, procure his will, and destroy it, if he wished to do so. And if he was dissatisfied with his will, as his declaration to Patten would indicate, why did he not change it ? He was among his neighbors and friends ; he was attending to important business matters at this time. It is idle to say that Mr. Jackman had not sufficient understanding and ability to change or revoke his will at this time, if it was " not as he wanted it." Why did-he not go to the office of any one of the hon- orable legal gentleman connected with this case, to say nothing of other lawyers living in Janesville, and have a will drawn which would make such a disposition of his property as he wished ? This was in the spring of 1867 that this declaration was made, according to Patten's testimony ; and he did not leave home for the east until twelve or fourteen months afterwards. And during all that time he was about the city, attending to his duties as president of the bank, managing with prudence and success his own important busi- ness matters ; and yet he took no step to change the provisions of the will, which never was as he wanted it. Assume for the moment that the testator made that will in the first instance through con- straint, for the purpose of securing domestic peace and quiet, and in obedience to the controlling and excessive importunity of a self- 750 UNDUE INFLUENCE. willed and tyrannical woman. Yet nothing is more manifest than the fact that, after his health improved, and he was about attending to business, he had ample time and abundant opportunity to revoke or change his will. He had sufficient knowledge and experience to know that he had but to step into the office of any honorable lawyer in his city and have this done, and that the matter would be treated as confidential and strictly professional by his legal adviser. Why did he not do this, if his will did not dispose of his property accord- ing to his wishes ? No satisfactory explanation of his conduct has been given why he did not, after he was relieved from the alleged dominion of his wife, change or destroy the will, if it was really true that the will was not as he wanted it. Moreover, there were declarations of the testator adduced in sup- port of the will. Brace testifies that the last time he saw him, when about starting for the east, he remarked to him that " we should never see him again." " Well," said the testator, " my property is all fixed." Storey says that he said to him, the day before he left, in reply to a suggestion that it was barely possible that he might not come back, " My business is all arranged satisfactorily, even if I should not come back." In the conversation, too, that he had with Conrad about the will, it is evident the testator knew he had made a most liberal provision for his wife, and that his reason for bestowing upon her such a large portion of his estate, was because " she had been a good wife, and had done' her part in accumulating the property." But not to dwell farther upon the declarations of the testator, I will say that the only legitimate inference, which I think can be drawn from them and his conduct is, tliat he made the will understandingly and advisedly, and was satisfied with the disposition of his property made by it. There are some other matters in this case which are relied on, by the counsel for the contestant, to show that Mr. Jackman's mind had become greatly impaired by his sickness, and that he made the will in consequence of constraint and unlawful influence exercised over him by his wife. I shall not, however, notice tiiem, because they are really entitled to no consideration. Nor is it necessary to further allude to the evidence adduced in support of the validity of the will. This opinioii already far exceeds the limits intended ; and I therefore close it by saying that the conclusion which a majority of the court has reached upon the whole case is, that the finding INSANITY AND INSANE DELUSIONS. 751 of the jury upon the fourth issue is so clearly unsupported by the evidence, that it ought not to stand. We almost feel like quoting, as an appropriate final remark upon the case, the close of the opinion in Farr v. Thompson, supra, " that to allow this yerdict to stand would be to let the jury run wild under the influence of prejudices and feeluigs which, however honorable and praiseworthy, must not be permitted to overthrow the rules of law or divert the current of justice." It is true, in this case, the object of the testator's bounty was a wife, an estima- ble woman, so far as we can determine her character from the evi- dence ; one with whom he seemed to have lived for more than twenty-five years in sympathy and true affection. III. Testamentary Capacity ; The Unequal Provisions of the Will ; Insane Delusion, its Character and the Evidence OF ITS Existence. Bitner v. Bitner, 65 Pennsylvania State Reports, 347. 1870. In this case are reviewed many of the questions we have already discussed, in a careful and thorough manner, at the jury trial, when the judge gave a very elaborate charge, every point of which was affirmed in banc. The points decided are stated in the head-notes with reference to the charge in the court below, all of which are not specifically dwelt upon in the opinion of affirmance. Testamentary capacity implies that the testator shall have mind enough to know and appreciate his relation to the natural objects of his bounty, and the char- acter and effect of the dispositions of his will. The unequal or unjust provisions of the will are proper to be considered in passing upon its validity, and will require clear proof of testamentary capacity and freedom of action. A sudden and marked change of character, disposition, and conduct is strong evidence of mental disorder. When the testator entertained the notion that his family should be governed in all respects as that practised by the Jewish patriarchs, and disinherits some members of h'.s immediate family, because he imagined or believed they did not so readily contorm to his views on that subject as others did, or as they 752 INSANITY AND INSANE DELUSIONS. should, it must be regarded as evincing such insane delusion as to avoid the will. If he entertained hatred toward his sons on this account, and therefore dis- inherited Ihem, it must be regarded as monomania of the form called moral insanity, provided it was the result of insane delusion, of which the jury must judge. Insane delusion may exhibit itself by want of just sense of affection and decency ; by hating, without cause, persons formerly much loved ; by delight in cruelty ; by taking offence at not receiving the respect and attention to which such de- lusion may persuade the person he is entitled. The opinion of the court was delivered by — Agnew, J. The only issue presented by the pleadings is whether the writing was the last will and testament of Christian Bitner. But this presented no issue of fact. It might not have been his last will, for various reasons of law and fact ; as want of due exe- cution, revocation, duress, insanity, &c. Such an issue withdraws the will from the exclusive jurisdiction of the register, or Register's Court, and commits it to the Common Pleas, which has no juris- diction except to try issues of fact only, sent to it for a trial by jury. The register's precept in this case sent two issues of fact to be tried ; to wit, the insanity of the testator and the undue influ- ence of tlie three sons. The defendants should have replied these matters to the plaintiffs' declaration, so as to raise the direct issues of fact sent to be tried. The Court of Common Pleas and the jury would then have had the issue directly in view. The plaintiffs asked the court to charge that there was no evi- dence of undue influence on part of the three sons, and the court affirmed their point. Tlie insanity of the testator was therefore the only question left to be decided by the jury. The unsoundness of mind which was set up to destroy the will was not total insanity, but a special form of it, which, while it left the mind of the tes- tator capable of many acts of apparent soundness, led him to form erroneous views of the character and conduct of his sons, Joseph, Henry, and Jacob, resulting in an insane delusion as to tliem, entering into the composition of his will. In order to understand the course of the trial, and solve the errors assigned, it is neces- sary to notice tlie allegations of fact constituting what has been termed the theory of the cause. It was asserted, and proof was given to show, that Christian Bitner had been insane at two periods of his life, beginning in 1838 and in 1848 ; and that this insanity EVIDENCE OP INSANE DELUSION. 753 had developed an unnatural and disturbed condition of mind which had changed his character, and affected his conduct to such an extent as to evidence a delusion of mind in relation to the three sons named, and produce a causeless antipathy towards them. If a mild, amiable, quiet, and modest man should become insane, and afterwards, though recovered so far as to transact his own busi- ness with apparent discretion and judgment, and in many things to appear to be in his right mind, yet should evidence a total revolution in his character, and become irritable, suspicious, and harsh towards his children, or some of them, become exceedingly vulgar and obscene in his conversations, outraging all sense of decency in the presence of his family and of strangers, and should exhibit the most foul desires and disgusting lechery towards his own daughters and other females, it would be difficult to ascribe such a revolution of character and such conduct otherwise than to the precedent insanity which had thus developed an unnatural, morbid, and unsound condition of mind. Such an unsoundness would not be inconsistent with an apparent right use of the facul- ties in many respects, and yet might strongly influence his conduct towards those against whom he exhibited, these new traits of char- acter. In an inquiry into an unsoundness of this kind, it is evident that the testimony ought not to be confined within a very narrow range, but that all those things which tended to show that the character of the man had changed since his attack of insanity should be received in evidence. Hence, in the case of one who had been mild, amiable, and modest, irritability, harshness, passion, . suspiciousness, vulgarity, obscenity, and openly avowed lechery would all tend to the same point in the proof that his insanity had left the mind in an unsound and unnatural condition. These remarks dispose of the first, third, and fourth bills of exception, which are not sustained. As to the second, it is only necessary to say that the testimony of Dr. Suesserott exhibits such an acquaint- ance with the testator, his habits, conduct, and conversations, for a long period of years, as to make his opinion competent to be given to the jury. The fifth error needs no comment : it was not error to reject the declarations of the testator of his own charities. Prom what has been said already as to the only issue in this cause, the questions of undue influence, revocation, and the eff'ect of set- ting aside the will were not before the jury, and therefore the 48 754 EVIDENCE OP INSANE DELUSION. answers to the first, second, and third points of the plaintiffs 'were immaterial. The fact that a man's will is unaccountably contrary to the common-sense of the country is not sufficient, ipso facto, to set it aside. The testator's will is the law of his property. But cer- tainly that which outrages common feeling, and displays a want of ordinary natural affection, is a fact to be considered along with other evidence on the question of unsoundness or delusion of mind. The assignments of error to the plaintiffs' fourth point and the defendants' fourth point are not sustained. We discover no such inconsistency in the answer to the plaintiffs' fifth point as could injure the plaintiffs. The second clause of the answers, to wit, " If Mr. Bitner was not the victim of any delusion," was evidently said by way of recalling the attention of the jury to the true question of fact before them. And if we should examine the answer critically, an intelligent consciousness of the nature and effect of an act is not plainly inconsistent with the existence of a delusion leading to and producing the act, so as to leave the jury in doubt of the meaning of the court. Christian Bitner might have been perfectly conscious of the nature of his testamentary provision, and aware that its effect was to disinherit the three sons, and yet laboring under a delusion of fact as to their conduct, which led him to consider and do the thing he contemplated, consciously and with intelligence. The answer to the sixth point of the plaintiffs is disposed of by what we have already said upon the questions of evidence. We discover no error in it. The plaintiffs' seventh and eighth points required the court to say, in case the facts were found as stated in the points, that the will was not void and must stand. But this the court could not do without narrowing the question of insanity to the precise state of the facts stated in the points. The field of the facts was broader, and embraced questions of actual unsoundness of mind, and per- verted feeUngs and affections, which may have shared in the production of the will, even though Christian Bitner might have had the grounds of fact influencing his testamentary disposition as stated in the points. We cannot say, therefore, that the court erred in the qualifications introduced into the answers, especially in view of the explicit and clear instructions contained in other parts of the charge. WILL MAT BE MAINTAINED IN PART. 755 As to the remaining assignments of error to the answers to the defendants' points, and to the general charge, we need say nothing more. Almost all the judge said appears to have been excepted to, perhaps with the view of bringing to our notice the entire spirit and scope of the charge. But although the mind of the judge appears to have inclined strongly to the belief that the testator was influenced by morbid feelings, and was unjust to his three sons, Joseph, Henry, and Jacob, we are not able to discover from the charge that the case was presented to the jury in such an unfair and one-sided manner as to mislead them. Very strong expressions of opinion on the facts are tolerated, — indeed some- times may be necessary ; even entire accuracy in the statement of facts may not be attained ; yet, when the case is left fully and clearly to the jury, under instructions not calculated to mislead, we are not in the habit of reversing. Finding no material error in the record, the judgment is affirmed. IV. Partial Insanity extending only to a Portion op the Will is no Ebason for avoiding the Whole. Unprofes- sional Witnesses may express Opinions after stating Pacts. Experts may give Opinions upon Hypothetical Cases or upon THE Pacts proved. Pidcock V. Potter, 68 Pennsylvania State Reports, 342. 1871. Unsoundness of mind may extend to some subjects, and not to others ; and where it has relation to only a part of the will, it is no ground of avoiding it wholly. Unprofessional witnesses, in this State, have always been allowed to express an opinion as to the sanity of the testator, after stating the facts of the case within their knowledge. Experts may give opinions upon a hypothetical case or upon the facts proved. The opinion of the court was delivered by — Eead, J. Insanity and its treatment have, of late years, been the subject of close and accurate scientific investigation, which has modified some of the doctrines laid down by eminent judges, 756 PARTIAL INSANITY. or, rather, their application to particular cases. Insanity is a disease which may be either general or partial, and the opinion of Lord Brougham in Waring v. Waring, in the Privy Council, July 17, 1848, in relation to partial insanity or monomania, and ap- proved *by Lord Penzance in Smith v. Tebbitt, 36 L. J. R. N. s. Probate Court, 97, August, 1867, has been shaken, if not overruled, by the Court of Queen's Bench, in Banks v. Goodfellow, 39 L. J. R. N. s. Q. B. 257 ; 5 L. R. Q. B. 54, on the 6th of July, 1870, Lord Chief Justice Cocklurn delivering the opinion of the court. The opinion is a very learned and elaborate one, citing the opinions of foreign text-writers, and also American decisions, and holding that partial unsoundness not affecting the general faculties, and not operating on the mind of a testator in regard to testamentary dis- position, is not sufficient to render a person incapable of disposing of his property by will ; and this seems to be the opinion of Dr. Ray, in his treatise on the Medical Jurisprudence of Insanity (5th ed.), 1871, §§ 302, 303. If unsoundness of mind is proved j to exist on the day that the will is made, or on the day the instructions are given, it is certainly permissible to trace the unsoundness both before and after that period, up to the very moment of the decease of the alleged testator. This necessarily opens a wide door to the admis- sion of evidence. Subscribing witnesses, of course, testify to the state of the testator's mind, and, in addition to the facts, give their opinion. The same is the case with medical men, who, as experts, may give their opinion upon hypothetical cases, or upon the facts proved. 1 Greenl. Ev. § 440. In Pennsylvania it has always been the rule that, after a non-professional witness has stated the facts upon which his opinion is founded, he is permitted to state his opinion as to the sanity or insanity of the testator. 1 Redf. on Wills, 141. From Rambler v. Tryon, 7 S. & R. 90, decided by Judge Duncan in 1821, and Wogan v. Small, 11 S. & R. 141, de- cided by Chief Justice Tilghman in 1824, to Titlow v. Titlow, 4 P. P. Smith, 216, in 1867, and Dickinson v. Dickinson, 11 id. 401, in 1869, our decisions have been uniform on this point. Ozias Potter had a wife and an adopted daughter, whom he had taken in 1861, when she was a little girl, and to both of whom he was affectionately attached. He had been in business with Mr. Wonderly, under the firm of Potter & Co., which appears to have existed in some shape or form up to the time of his death, on the 6th September, 1869. COMMENTS ON THE TESTIMONY. 757 His will was drawn by General Robert Fleming, and is dated the 27th of March, 1869. The instructions were given by the decedent to General Fleming on Good Friday, the 26th March, in the evening, in the bedroom, no other person being present. The will was drawn in General Fleming's office, and was executed the next evening, Mr. Weiss and the general being the witnesses. Neither the wife nor daughter ever knew of this will, the existence of which was known only to the witnesses. From the testimony of Dr. Richter, the attending physician, it is clear that he was entirely unfit to make a will ; in which he is supported by the direct and positive testimony of Mrs. Potter. In 1863, Mr. Potter had a severe attack of small-pox, which shook his constitution, and evidently impaired both mind and body, and changed his character. In 1867, he was afflicted with the heart disease, wlaich gradually increased, affected his brain, and finally terminated his life. About March, 1867, he made a will, the contents of which were proved by General Fleming, who drew it, Mr. Wonderly, and others. This will provided amply for his wife and daugliter, and was made with a full knowledge of the value of his property ; and this is the only will any one knew of, excepting the witnesses to that of the 27th March, 1869. He ceased transacting any business in August or September, 1868, and his condition is traced up till he went South, on the 27th January, 1869, accompanied by Mr. Wonderly to take care of him, and returned 9th February, 1869, not improved; and his disease with dropsy on the chest had a powerful effect upon the brain. His mind became filled with visionary speculations de- manding large capital, and the supposed ownership of property that did not belong to him. He often spoke of his will, describing its provisions as in that of 1867, and never in any way alluding to that of 27th March, 1869, as if he had entirely forgotten its exe- cution. The evidence of the medical witnesses, and of the others who knew Mr. Potter well, was very strong in proving that he was incompetent to make a will on the 27th March, 1869. Mr. Potter's property was a little over $30,000, and he ordered at least $2,000 to be expended in purchasing a suitable lot in a cemetery (having one already), and to erect thereon a suitable monument. He gives his wife their residence during her natural life, his household and kitchen furniture, and |1,500 during her natural life. If she claims her dower, these bequests to be null and void. Ee never 758 COMMENTS ON THE TESTIMONY. even names Us daughter Mia. To Bulina and Sarah Pidcock he gives a house and lot during their natural lives. To said Bulina and Sarah, each |400 per annum, during the natural life of each. For the purpose of paying these annuities, amounting to $2,300 per annum, and $400 per annum as a compensation to said trustee, he directs a sum to be paid him to be invested to produce those sums. The residue of his estate he gives to the city of Williams- port, for the benefit of their poor. Mr. Smith, the trustee, renounced the legacy to him, and the city of Williamsport treated theirs in a similar way. It was a cruel and unjust will, and the first and last provisions for the monument and the poor were perfectly absurd, in view of the small estate he died possessed of. The learned judge delivered a very clear and sensible charge to the jury. He affirmed the plaintiffs' 3d, 4th, 5th, and 7th points, and, as the plaintiffs must have known was his duty, he negatived the 1st point. The 2d and 6th points were properly answered Whatever, therefore, is assigned for error, either as to these points or as to the charge, is not sustained. These remarks dispose of the 12th and 13th errors assigned. The first ten errors assigned are disposed of by the remarks already made, and, as to the 11th error, the court were right in rejecting evidence of general reputation. I submitted the paper-books to Dr. Isaac Ray, who has favored me with a most careful analysis and review of the facts of this case, and thus closes it with these words : " In view of all these facts, I cannot avoid the conclusion that in March, 1869, Ozias Potter did not possess ' a sound and disposing memory.' " The following is the review of Dr. Ray, directed to be reported as a note to this case : — " If the testator labored under any form of mental disease, it was not that of delusion concerning his wife or daughter, nor that of mania marked by incoherence, irregularity, and excitement. The only kind of mental disturbance that can be alleged with any show of reason, is that which is the sequel or accompaniment of other bodily disease, and which is indicated rather by weakness of judgment, loss ' of memory, imperfect appreciation of our rela- tions to others, disregard of little proprieties, freaks and caprices, ANALYSIS OP THE SYMPTOMS. 759 vacillation and change, than by strange notions or disorderly be- havior. It must be admitted that the mental disturbance, if any such existed, was not very demonstrative in its character, and was obvious only to those who had intimate relations with him. " The question then is, whether the evidence showed any such mental disorder as would render the testator incompetent to make a will. And here it must be borne in mind that such mental dis- order is often exhibited in an unsteadiness and weakness of mind, obvious enough to the careful observer, but, from lack of any striking incident, not easily proved to others. Hence it is that those who have had the best opportunities of observing the patient are obliged, when required to give the reasons for their belief, to resort to particular incidents which made much less impression on themselves than those general habits of thinking and feeling of which they can convey but a very imperfect idea to others. How- ever, it is the former which furnishes the most available proof of mental disorder, and we are bound to inquire how far such proof is obtained from the evidence in this particular case. " His wife testifies that ' ever after he had the small-pox, in 1863, he was nervous and irritable, which condition increased until his death.' (35) " This fact shows that the health of the brain had been more or less impaired, and this effect was intensified by the subsequent disease of the heart. Wonderly, who had better opportunities of observing his mental traits than any one else out of his own family, says that he ' first noticed failing of mind in 1868,' and it appears that in consequence of this failing he ceased to do business in connection with the firm. James Smith, who also had good oppor- tunities of observing the testator, says he stated to him (Smith) that he gave up charge of business ' because he did not feel well enough to attend to it.' (43) Smith also says that from 1866 the testator spoke of a ' pressure on his head,' and ' it felt so bad that his memory was affected.' Webster, who worked for him, and saw him every day, says he observed a ' marked change in his mind ' ever since 1867 : ' he did not seem to be the same man he was ; he had different views of things ; his mind seemed to be bewildered after he came back from South.' Henry Smith says, in regard to some business transaction, ' that he would not have understood clearly what he was doing, unless his bookkeeper had told him it was all right.' ' In March, 1867,' he proceeds, ' I would not have 760 COMMENTS ON THE CASE. made a contract with Potter. I considered him incapable of doing any big amount of business.' (57) " This evidence, coming from such parties, renders it quite cer- tain that his mind had lost its original vigor and grasp, under the influence of bodily infirmities ; but it is very far from showing that sort of deficiency which necessarily implies testamentary incompe- tence. Still it may, in consequence of that disturbance of the affective powers which often accompanies this intellectual condi- tion. Patients of this description are often governed by frealis and caprices, whereby they are led to undo what they have already done in their wisest moments. A new idea enters their head, and, for a time, it masters them completely. One of the results of this state of things is a disposition to alter their wills. Some old men, whose minds have been weakened by age and infirmity, have a passion for making wills, which indicate not so much a sensible disposition of their property as the occurrence of a temporary caprice or irritation. If discreetly managed by their advisers, the humor passes away, and the old will remains unaltered. From the testimony of General Fleming, it would seem that the testator was one of this description of persons. He says, ' He had exe- cuted other wills prior to this time.' ' As soon as he wrote a new one,' this witness says, ' I destroyed the old one.' (72) This fre- quency of making wills, under such circumstances, must greatly discredit his testamentary capacity. " But, at the very least, the mental impairment in question fur- nishes a foundation on which more demonstrative proofs of testa- mentary incapacity may be laid. The testimony exhibits a few such, and in Ihis connection they are not without much signifi- cance. Wonderly says that, when about closing their business (1868), they mutually agreed to buy no more lumber, notwithstand- ing which Potter bought one million laths without consulting him, and paid more than the market price. Whether this proceeded from a lapse of memory or intentional violation of his agreement, it was equally indicative of mental disorder. He once imagined that some lumber was rotting, and requested Baird to take it away (54), apparently as a gift. Wonderly says the lumber was sound, properly piled and covered, and was sold for $6,000 or 17,000. (55) This was some two or three months subsequent to the date of the will, but it unquestionably was the result of an habitual condition that began long before. It was one of those fancies incident to STATE OP THE MIND. 761 that state of mind, and which, witb a little more permanence, might be properly called a delusion. A certain heedlessness of values and of financial proprieties, if I may so speak, very charac- teristic of insanity, was evinced in his offer to Nicholas to give him a check for $100,000, in furtherance of an absurd speculation he had proposed. (51) The foundery property he declared to be worth $200,000. (46) With the same disregard of actual reali- ties, he offered to give Webster a farm, (47) and the same kind of extravagant gifts he offered to other witnesses. Even after the will was made, he continued to speak of his bequests to his wife and child as they were in a former will ; and, though frequently alluding to his provisions for them, he never spoke of the will last made. To avoid the conclusion that he had entirely forgotten it, and thus given a proof of mental unsoundness, it was alleged that this was purposely done in order to prevent remark and dispute. This certainly is possible, but not very probable. If the whole trans- action had passed out of his mind, it would have been no more strange than his forgetfulness of his arrangement witli Wonderly. " These particular incidents render it quite certain that his mind was not only weak, — deprived of its normal degree of power, — but that it had often actually wandered from the track, and became unsound as well as weak. Still, for all that, he may have made a proper will. The question next to be considered is, whether the present is a proper will, entirely free from all influence of mental disease. If it made a disposition^ of his property very different from that of any former will, and such a disposition as in some important respects would seem unjust and capricious ; if it betrayed forgetfulness of certain well-known facts, then it may be fairly inferred that the disorder otherwise manifested, both before and after, had affected his testamentary provisions. . " By the will of 1867 he gave his wife an annuity of $2,700 and the homestead absolutely, and to the daughter $1,000 abso- lutely. By the last will the wife's annuity is reduced to $1,500, with only a life-interest in the homestead, and the daughter is not once mentioned nor alluded to. Tims the latter was entirely dependent on tlie widow ; and if she had died immediately after the testator, the daughter would have been turned adrift without a penny. No adequate cause for this change is assigned. It does not appear that he lost his affection for his wife and daughter, or that they were otherwise provided for. Although professing a desire that the 762 CHARACTER OP THE WILL. daughter should be educated in the usual accomplishments of young women, and always saying that they would be amply pro- vided for, he does not seem to have apprehended that the bequest to his wife was altogether inadequate for their maintenance and the daughter's education. The impropriety of this provision is rendered still more glaring when considered in connection with the bequests to the two plaintiffs. These two women had nursed him during liis last illness, and somewhat during the year or two previous. Some testamentary acknowledgment of these services would have been quite proper ; but the actual bequest of an annuity of 1400 to each, with a house and lot, is so out of proportion to the provision made for the wife and child as to raise a suspicion of mental unsoundness. Of course, a sane man may do what he pleases with his own, — neglect those near and dear to him, and bestow his fortune on strangers ; but this liberty is not allowed to one who has given indications of mental unsoundness. In his case, every provision must be closely scrutinized, and every sign of partiality or injustice will be necessarily viewed with strong sus- picion. The bequest to Smith of $400 per annum is of a kind to excite the same feeling ; for Smith was not related to him, and had no claims upon his bounty. To gratify a mere caprice, at the expense of his wife and daughter, can hardly be offered as a proof of a sound and disposing mind. Another provision of the will betrays a lapse of memory scarcely compatible with the idea of testamentary capacity. He directs his executors to buy a suitable lot in a cemetery, and erect on it a monument with corresponding fixtures and improvements. But it seems he had already obtained a lot in a cemetery, (32) had made improvements on it, (37) and suggested others, and even after the date of the will had visited it, and indicated the spot where he wished to be buried. (47) " It is impossible to escape the conclusion, either that while preparing his will he was oblivious of the fact that he already owned a burial-place, or that while visiting this place during the summer of 1869 he had utterly forgotten this provision of his will. Both suppositions are fatal to his testamentary capacity, and ren- der it highly probable that, while making his will, the fact that he had an adopted daughter did not occur to him. This failure of memory would not have been more strange than the former actually was. The bequest of the bulk of his property for the support of the town's poor looks far more like an inconsiderate freak than a CHARACTER OP THE WILL. 763 wise and benevolent attempt to improve their condition. For this pui'pose, some special appropriation of the funds should have been provided for, whereby some benefits or privileges would have been secured to them in addition to those furnished by the town. As it is, however, the poor are no better off than they were before. The only effect of his bounty is to relieve the town of Williamsport of some of its burdens. " In view of all of these facts, I cannot avoid the conclusion that in March, 1869, Ozias Potter did not possess ' a sound and disposing memory.' " INDEX. A. ACKNOWLEDGMENT, of will by testator, may be by acts as well as words, 619 et seq. or by declarations of others in the presence of the testator and witnesses, 634 et seq. same effect as signing, 656 et seq. oj" signature by witnesses, 638. (See Witness.) ADMISSIONS, hy legatee. (See Legatee.) AGE. (See Testamentaby Capacity.) AMBIGUITY, cSee Latent Ambiguity.) difference between, and false description, 675. APPEAL FROM PROBATE, tried same as in Probate Court, 5 el seq. when decree not reversed for admission of incompetent testimony, 105. ARGUMENT. (See Executor.) ATTESTATION, of will by witnesses, (See Subscribing Witnesses.) its character and importance, 139, 140. what amounts to, 656 et seq. (See Witness.) ATTESTATION CLAUSE, effect of, 651 et seq. not indispensable, ib. may be disproved, ib. is desirable, ib. effect of, ib. B. BENEFICL^Y, effect of his writing will, 170, 191. or giving the instructions, 465. control of, over enfeebled mind of testator, 466. where he keeps others from testator, 467. where his operations evince privacy, 468. note in regard to will procured by, 471 et seq. where his influence undue, 473 et seq., 480 d seq. 766 INDEX. BLIND, how may execute will, 37 et seq. will need not be read in hearing of witnesses, 38 et seq. proof required that testator understood will, 63. BURDEN OF PROOF, general subject discussed, 6, 8, 32, 53, 174, 206. contestants assume, in cases o mental defect, o, 28, 29, 63, 59. rule in Massachusetts, 5-13. when changes, 5 et seq., 32, 169, 287. where testator was under guardianship, 238. in regard to undue influence, 393 et seq., 412. the law presumes testamentary capacity, 723 et seq. . C. CHANGE OF CHARACTER, sudden, proof of insanity. (See Insanity.) CHARACTER, of will, effect of, 297 et seq., 326 et seq., 347, 627 et seq., 733 et seq., 751 et seq. (See Will.) change of, (See Insanity.) mportant in deciding nature of influence, 388, 412, 561 et seq. in connection with circumstances may be considered by triers, 420 et seq., 487. any competent testator may elect, 487 et seq. CHARGE TO JURY, not required to be in specific form, 27. (See Undue Influence.) as to mental capacity, 172 et seq. CHILDISHNESS, effect upon testamentary capacity, 184. CHOSE IN ACTION. (See Gifts Mortis Causa.) CIRCUMSTANCES, how far admissible in proof, 556, 574, 678 et seq. (See Oral Evidence.) CONTESTANTS. (See Burden of Proof; Cross-Examination.) COSTS, when awarded, 285, 286. COURTS, duty of, to protect feeble testator exposed to undue influence, 606 et seq. (See Undue Influence.) CROSS-EXAMINATION, right of contestants of will as to subscribing witnesses when first intro- duced, 31. of experts, 50. allowable to call attention to former statements, 67. extent of, 68. (See Experts; Witness.) INDEX. 767 D. DEAF AND DUMB, execution of wills by, 33 et seq., 277. must be cear proof of testator's comprehension, 34. proof must show testator was not deceived, 35. former state of law as to, 36 et seq. mode of communicating with, 348 et seq. DECEASED WITNESS, declarations of, 488 et seq. DECLARATIONS, (See Subscribing Witnesses.) of witness, when admissible, or not, 12, 13, 14, 17 et seq. of testator, when admissible, 67, 137, 174, 397 et seq. by one procuring will, 200. of testator not admissible to prove facts, 897 et seq. to what extent admissible matter of discretion, when, 398. after the execution of will, effect of, ib. tending to show ignorance of contents of will, 398 et seq. tending to show testamentary intentions, 486 et seq. note in regard to, 487. tending to show want of testamentary capacity, 488. but cannot contradict established facts, 488 et seq. not admissible to show intention, 674. to vninesses recognizing his will, 628 et seq. of testator not proof of undue influence, 635 et seq. how far admissible, 730 et seq., 733 et seq. DECREE, when not reversed for admission of incompetent evidence, 105. (See Appeal from Probate.) DEED. (See Gifts Mortis Causa.) DELIRIUM, produced by drunkenness. (See Drunkenness.) when produced by disease, 346 et seq. DELIVERY, essential to perfect gifts mortis causa, 701. DELUSION. (See Insane Delusion.) DEMENTIA. (See Senile Dementia.) DEPARTED SPIRITS. (See Spiritualism.) DEPENDENT RELATIONS, effect of, 617, in n. DESTRUCTION OF WILL, through undue influence, does not amount to revocation, 518 et seq. (See Undue Influence.) DRAFT. (See Will.) DRUNKENNESS, effect of, upon testamentary capacity, 206, 212, 311 et seq., 320 et seq., 325 etseq., 334, 337 et seq. 768 INDEX. E. ECCENTRICITY, not insanity, 271. (See Insanity.) EQUITY, how far it relieves against frauds upon those who would otherwise have become legatees, 607 et seq. grants such relief by compelling the actors to respond as trustees for those defrauded, ih. note discussing the question, 609. EQUIVOCATION, (See Latent Ambiguity.) definition of, 694 et seq. ESTATE. (See Real Estate.) EVIDENCE, (See Last Will; Spectral Testimony.) weight of, matter of fact, 22, 23. executor not bound to give, of sanity of testator, in the first instance, 53. mode of weighing, 59. extrinsic, not competent to alter will, 174. value of, comments upon, 181. to prove fraud or undue influence, 397 et seq. must be clear, 414. not expected to be direct, 469. direct, in conflict with circumstances, 470. EXECUTION OF WILL, (See Blind ; Deaf and Dumb.) how effected, 299, 301, 343. presumption from, ib. what required to constitute signing, 613 et seq., 619 et seq. acknowledgment sufiicient, ib., ib. name may be at beginning, ib. finality requisite, 614. comments on the testimony, 622 et seq. may be held final when testator fails to make signature by reason of failing strength, 624 et seq. EXECUTOR, (See Evidence.) entitled to open and close, 6 et seq. competent witness, 174. EXPERTS, (See Ckoss-Examination ; Opinions.) ordinary physicians, when, 8 et seq. testimony of, compared with that of ordinary physicians, 9 et seq. whether such or not may be made question of law, 11. form of giving testimony by, 40 et seq., 51, 62, 755. proper questions to be propounded to, 40 et seq., ib. who are, 40 et seq. effect of testimony of, 40 et seq. tests of reliability, ib. object of testimony of, 49 et seq. cross-examination of, 60. EXTRINSIC EVIDENCE, (See Evidence.) not competent to alter will, 174. admissible to aid in removing uncertainties in wills, whether latent or patent, 602 et seq. INDEX. 769 ''FALSA DEM0N8TRATI0 NON NOCET." (See Misdescription.) FAMILY PHYSICIANS. (See Experts; Opinions; Undue Influence.) FINALITY, in signing of will. (See Execution of Will.) FORGERY, • of will, cannot be proved by declarations of testator, 488 et sea FORMALITIES, in execution of will, must comply with statute at date of will, 655 et seq. FRAUD, (See Equity; Undue Influencb.) explainable by character of will, 297. vitiates all wills, 420 et seq. evidence of, 484 et seq. cannot be proved by declarations of testator, 488 et seq. how disproved, 506 et seq. G. GIFTS MORTIS CADSA, resemblance to nuncupative wills, 700. diiference from them, ib. growing more in use, ib. real estate cannot pass by, 701 et seq. may embrace all donor's personalty, ib. good from husband to wife, ib. must be made during last sickness, 26. revocable during life of donor, ib., 713 et seq, cease on his recovery, 701 et seq. or if the donor survive the donee, ib. require actual or constructive delivery, ib. made in writing, how viewed, ib. position of personal representative of donor, ib. bond and mortgage, or any chose in action, may pass by, ib.''' not essential it should be negotiable, ib. or that it be formally assigned, ib. will pass by delivery, ib. or by formal written assignment alone, ib. the assignment being delivered as a symbol, ib. delivery of deed of personalty would seem to be equivalent to delivery of thing, ib. deed of all donor's property, present and prospective, till death, means a gift to become absolute at death, ib. ' note upon some of above points, 710-713. gifts during last sickness presumptively, 713 et seq. incidents of, 713 et seq. 49 770 INDEX. GIFTS M0BTI8 CAUSA, — continued. resuming possession amounts to revocation of, ib. donee responsible for resuming possession thereafter, ib. qualifications of, ib. GUARDIAN, (See Undue Iniluence.) effect of ward giving legacy to, 515 et seq. GUARDIANSHIP, effect of, 200, 238, 515. (See Burden ov Proof.) H. HEREDITARY. (See Insanity ) HUSBAND AND WIFE. (See Gifts Mortis Causa.) IN EXTREMIS, will procured from one, 469, 480. (See Nuncupative Wills.) INFLUENCR, (See Undue Influence.) from spirits, the law condemns, 385 et seq. INSANE DELUSION, distinction between, and error or misjudgment, 105, 107, 109, 110, 206, 223, 225 etseq., 263, 278. INSANITY, (See Burden of Proof.) peculiar species tending to suicide, consistent with general capacity to transact ordinary business, 5 et seq. loss of memory as to names, &c., is not, 6. how far hereditary, 9 et seq., 11. where once shown to exist, presumed to continue, 29. partial, how affects testamentary capacity, 94, 97 et seq., 123, 206, 221. prejudice is not, 127. eccentricity not, 271. case illustrating, 215-218. entire change of character, evidence of, 238, 251, 751 et seq. difference between delusions and insane delusions, 385, 751 et seq. how disproved, 412, 520. indications of delusion, 752 et seq. INTENTION, evidence of, not admissible, 65fi. (See Oral Evidence.) discussed in note, 542-552. INTOXICATION. (See Drunkenness.) INDEX. 771 JUDGMENT. (See Mental Capacity; Testamentary Capacity.) JURY TRIALS, excellencies and defects of, 310. issue cannot be submitted where no evidence, 418 et seq. LAST SICKNESS. (See Gifts Mortis Causa.) LATENT AMBIGUITY, such as may be removed by proof of intention , 583 et seq. discussed and defined, 600 et seq. LAW, what influence it recognizes. (See Lawful Influence.) LAWFUL INFLUENCE, (See Undue Influence.) recognized, 299, 386 et seq., 410 et seq. LEGATEE, admissions by, will not defeat will, 200. admissible to show conspiracy or defeat legacy, ib. LOST WILL, mode of proof, 217. LUCID INTERVAL, how defined, 218, 243, 289, 347. when must be proved, 289. how proved, 29, 347 et seq., 355 et seq., 360 et seq. M. MEMORY, how affects testamentary capacity, 69. loss of, 184. (See Insanity.) MENTAL CAPACITY, (See Testamentary Capacity.) requisite to execute will, 168-218, 275, 287, 303, 307. must be sufficient to understand business, 159. sound disposing mind and memory, 169. must satisfy the conscience of court, ib. sufficient to recall facts, and judge of them, 171 ei seq., 199. discussed in note, 308-311, 317 et seq. MIND. (See Mi!5Jtal Capacity.) MISDESCRIPTION, either of legatee or subject-matter, extended note upon, 642-552. Jalsa demonslratio nan nocet, ib. case in New Hampshire, 547. false particulars may be rejected, 542, 556. how corrected, 675 et seq., 578 et seq. furthei; discussed, 602 et seq. 772 INDEX. MISTAKE (See Insane Delusion.) " MONEYS," construction of the word in a bequest, 527 et seq. may embrace bank-notes, ib. MONOMANIA. (See Insanity ; Partial Insanity.) MORTIS CAUSA. (See Gifts Mortis Causa.) N. NAME OF TESTATOR, may appear at beginning of will, 613 et seq., 624 et seq. (See Execution op Will.) NECROMANCY, (See Spiritualism.) its history, S86 et seq. NICKNAMES. (See Oral Evidence.) NON COMPOS MENTIS, defined, 262 et seq. NUNCUPATIVE WILLS, mode of executing same, and when allowed, 678 et seq. can only be made, ordinarily, in extremis, 679 et seq. in lingering illness can only be made at the last, ib. if testator recover, will becomes inoperative, ib. ; at common law, made only in last sickness, 688 et seq. but when made by soldiers and seamen not subject to foregoing require- ments, ib. practically limited to soldiers and seamen in service, 689 et seq. apply to all classes in the service, even menial servants, ib. no particular number of witnesses required, ib. note on same, 694. words must be intended as testamentary, 694 et seq. testimony of one witness sufficient, ib. facts constituting good will, ib. when one is in actual service, ib. o. ONUS PROBAND!. (See Burden op Proof.) OPINIONS, when unprofessional witnesses may give, 8 et seq., 63, 68, 89, 93, 105, 140 et seq., 194, 195, 262 et seq., 765 et seq. of subscribing witnesses, 7 et seq., 30, 31. of witnesses, to what point directed, 68. how far professional witnesses may express, 68. may be upon the very point before jury, ib. weight of, 110. comparative importance of, from professional witnesses or unprofessional, 223. weight of latter, 287, above, 293. ORAL EVIDENCE, (See Extrinsic Evidknck.) how far admissible in case of wills, 627 et seq. INDEX. 773 ORAL EVIDENCE, —coniinued only admissible in case of latent ambiguity or resulting trust, ib. note upon same, 538, 639. how far may aid construction, ib. may explain nickname, ib. sobriquets, ib. to put court in place of testator, 539. to correct misdescription, ib. to enable court to apply the words of will, 652. to enable court to reject false particulars, ib. to correct misdescription, 675, 678, 697 et seq. P. PARTIAL INSANITY, (See Insanity.) discussion of, 218 et seq., 247, 261, 266 et seq. extending to part of will, 765 et seq. PART OF WILL, how far capable of being maintained, 621 et seq. PATENT AMBIGUITY, (See Extrinsic Evidence; Oral Evidence.) how may be removed, 601 et seq. PERSONAL REPRESENTATIVE. (See Gifts Mortis Causa.) PHYSICIANS. (See Experts.) PRAYERS, for the departed. (See Purgatory.) PREJUDICE, not insanity. (See Insanity.) PRESUMPTIONS, in favor of sanity, 5, 8, 28, 198, 206, 207. of insanity when once established, 29. (See Burden of Proof; Insanity.) from execution of will, 299. how rebutted, 539. may overcome contrary testimony, 656 et seq. of testamentary capacity, 723 et seq. PRIVACY. (See Beneficiary.) PROBATE COURT. (See Appeal, &c.) PROCEDURE, refinements in, not useful, 64. PROFESSIONAL. (See Opinions.) PROOF, of execution by testator. ' what amounts to, 634 et seq. must comply with statute at the date of probate, 666 et seq. not requisite to have support of all witnesses, 668. publication of paper as will before witnesses, §59 et seq. acknowledgment of signature by testator sufficient, 660 et seq, witnesses need not attest in presence of each other, 661 et seq. publication not required by English decisions, 662 et seq. but Statute of Frauds did require it, 663 et seq. 774 INDEX. PROOF, — continued. want of recollection of witnesses no defect of proof, 664 et seq. what amounts to acknowledgment by testator, 666 et seq. how far court will presume omnia rite acta, 669 et seq. efifect of forgetfulness of witnesses, 670 et seq. summing up of testimony, 672 et seq. summary of evidence required, 673 et seq. question discussed in note, 676-678. PROPONENTS. (See Burden ov Pkoof.) PUBLICATION, of will, when necessary, and what amounts to, 622 et seq., 632 et seq., 6.52 et seq. PURGATORY, wills to secure escape from, 389 etseq. Q. QUESTIONS, to experts, 40 et seq. (See Experts.) strictness in regard to refinements in, 473 et seq. of witnesses to will as to testator's capacity, in first instance mere form, 723 et seq. R. REAL ESTATE, will not pass by gift mortis causa, 701. REASONABLENESS OF WILL, (See Will.) important to be considered in connection with testamentary capacity, 39, 287. RECOVERY, (See Gifts Mortis Causa.) RELATIONS, influential, effect of, upon testamentary freedom, 506 et seq. RELIGIOUS OPINIONS, effect on testamentary capacity, 362 et seq. REQUEST, o/ testator to witnesses, 627. (See Witness.) what amounts to, 628 et seq., 634 et seq. BES OESrJE, what amounts to, 12, 13. REVOCATION, not effected by destroying will through undue influence, 518. (See Destruction of Will.) what amounts to, 635 et seq. (See Gifts Mortis Causa.) INDEX. 775 s. SEAMAN. (See Nuncupative Wills.) SECRECY, effect of, (See Undue Influence.) as evidence of undue influence, 627 et seq. SENILE DEMENTIA, its efiFect on testamentary capacity, 258 et seq., 273, 286, 293, 299. no act of folly imputed, 259, 262 et seq. SIGNING BY TESTATOR, (See Will.) what requisite, 613. (See Execution of Will.) SOBRIQUETS. (See Oral Evidence.) SOLDIER. (See Nuncupative Wills.) SPECTRAL TESTIMONY, law will not accept, 388 et seq. SPIRITS. (See Undue Influence ; Spiritualism.) SPIRITUALISM (MODERN), its effect on testamentary capacity, 365, 367 et seq. note on same, 384 et seq. SUBSCRIBING WITNESSES, extent and effect of testimony, 5 et seq., 13. attestation of will by, effect of, 9 et seq. declarations by, when admissible, 12, 69. (See Declarations.) when executor must produce, 13, 14, 28. opinions of, how regarded, 30, 53, 69, 130, 139. duty of, 137, 138, 139. SUICIDE, ^ ^ no certain proof of insanity, 5 et seq., 206, 211. TESTAMENTARY CAPACITY, (See Drunkenness.) how affected by age, &c., 30, 32. (See Insanity; Lucid Intervals.) peculiar opinions will not defect, 52. what amounts to, 53, 69, 158 et seq., 198. how far consistent with mental weakness or infirmity, 182 et proof by unprofessional witnesses, 194. (See Opinions.) degree of mind requisite, 199, 201, 203, 206, 218, 413. (See Memory.) discussed and defined, 262 et seq. (See Senile Demeijtia.) 776 INDEX. TESTAMENTARY CAPACITY, —continued. how defined by statute in Maryland, 420 et seq. definition of, 473 et seq. law presumes, 723 et seq. how defined, ib., 751 et seq. TESTATOR, (See Blind; Deaf and Dumb; Declarations.) must be proof that he understood will, 63. TESTIMONY, (See Experts.) . improperly admitted, not cured by opposite party producing counter evi- dence, .^00. incompetent admission of. (See Appeal.) u. UNCERTAINTY, in wills, how far affected by extrinsic evidence. (See Extrinsic Evi- dence. UNDUE INFLUENCE, evidence of, or not, 13, 200, 205, 206, 293, 298, 299, 357. charge to jury in regard to, 13, 198. suggestions which are followed do not amount to, 26, 27. judge not required to charge in specific form as to, 27. fraud not implied in, 38 et seq. but other cases hold it is, 110. what is not, 110, 129, 130, 136, 25.1, 262, 279 et seq., 285, 287, 290 et seq., 307 et seq., 311. by party interested, 171, 234 et seq. by guardian, 200. how far that of wife is, 311 el seq., 317. how proved, 400, 414. burden of proof, 393. how disproved, 412. how defined, 414. must be present and operating at date of will, 417 et seq., 420 et seq. must substitute another's will in place of testator's, 418 et seq. must proceed from bad motive, ib. distinct from weakness of mind, ib. moderate intercession is not, 420 et seq. but may be carried to such extent, short of fraud, as to become undue, 420 et seq. testator must be left free to act, ib. note upon, 432 et seq. how will may be procured by, 473. what constitutes, 480 et seq. analysis and discussion of, 503, in note. not ordinarily presumed from relation of parties, 614, in note. etfect of testator being under guardianship, 615 et seq. INDEX. .777 UNDUEj INFLUENCE, — continued. as to part of will, effect of, 521. effect of, note upon, 621-524. how proved, 627 et seg. ground of presuming, ib. effect of secrecy as evidence, ib. effect of nature of will, ib. must destroy free agency, 723 et seq., 733 et seq., 740 et seq. testimony to prove, 730 et seq. declarations of testator, when admissible, ib. how far family physicians may testify, ib. (See Beneficiary; Evidence.) not easy of definition, 733 et seq. must be intended to procure unjust will, and must have succeeded to some extent, 740 et seq. UNNATURAL CHARACTER, of will, (See Character.) effect of, 501 et seq. UNPROFESSIONAL WITNESSES. (See Opinions.) W. WIFE, effect of her influence, (See Undue Influence.) may become undue, 601 et seq. comments upon influence of, 503, and note. WILL, (See Extrinsic Evidence.) draft of, when admissible, 13, 23-25. what amounts to signing by testator, 59. when former one superseded by later one, 170, 238. procured by guardian, 200. effect of its character, 206, 214 et seq., 258, 293. written or dictated by beneficiary, 170, 191. effect of unreasonableness in, 295, 297. where one is clearly unjust and procured by influence of another, cannot stand, 480 et seq. made in extremis, 481 et seq. made between intimate and dependent relations, 483 et seq. may be established in part, 506 et seq. statutory requisites indispensable, 651 et seq. WITNESS, (See Nuncupative Will8.) discussion of their duty, 7 et seq., 661 et seq. (See Opinions.) impeachment of, by contradiction. (See Declarations.) court have discretion as to cross-examination, 25. cross-examination, extent of, 25, 26. may be contradicted, 67. 60 778 INDEX. WITNESS, — continued. unprofessional, cannot be compelled or alloired to express opinion upon hypothetical cases, 94. (See Opinions.) executor competent, 174. need not all attest at same time, 619 et seq. request by testator to subscribe, 627 et seq. must make signature at time of attestation, 638 et seq. how far must know character of paper, 656 et seq.^ Cambridge: Press of John Wilson & Son. KF 755 A7 R31 c.l Author Redfield, Isaac Fletcher Vol. Title Copy Leadigg American cases and notes t$6fl tlie law 61' WULLSi aBBtading testamentary capacity Date Borrower's Name