Page thinks, suggests the true view, which he states to be, "that testamentary capacity and contractual capacity are so different in their nature that it is impossible to use one as a test for measuring the other, or to say that the existence of one either proves or disproves the other's existence conclusively."+

SUBJECT

GENERAL

Sec. 945. SAME RULE OF TESTAMENTARY CAPACITY.— The general rule or test of mental capacity is as follows: If the testator is able, without prompting, to summon before his mind, on the same occasion, and hold there for a reasonable time the nature of the business about which he is engaged, the persons who might naturally be the objects of his bounty and his relations to them, the kind and extent of the property to be disposed of, and the scope and effect of the disposition which he is about to make, he will be considered to have sufficient mental capacity to make a valid will.*

Page on Wills, Sec. 96; Turner's Appeal, 72 Conn. 305; Brown v. Mitchell, 88 Tex. 550. It is to be observed that where the State statute defines testamentary capacity by declaring it to be the ability to make a valid deed or contract, such statute puts an end to judicial construction of testamentary capacity. Connelly v. Beal, 77 Md. 116.

*66

"A man of sound mind and disposing memory is one who has a full and intelligent knowledge of the act he is engaged in, a full knowledge of the property he possesses, an intelligent perception and understanding of the disposition he de sires to make of it, and of the persons and objects he desires shall be the recipients of his bounty. It is not necessary that he should collect these in one review. If he understands in detail what he is about and chooses with understanding and

"Greater capacity than this the law does not demand; less than this is insufficient; and in each case it is a question of fact or of mixed law and fact whether the testator possesses the requisite capacity. While not necessary, it is perfectly proper to qualify such a rule by adding that an insane delusion directly affecting the will may destroy testamentary capacity."+

It is not necessary that the testator should know the number and the condition of his relatives, or that he should be able to give an intelligent reason for giving or withholding from any of them; nor that he should remember the names of absent relatives; nor that he should call to mind every item of his property, and its value; nor that he should know the precise legal effect of the provisions which he makes in the will.*

Under this general rule it has been held that a man may be capable of making a will, and yet be incapable of making a contract or deed. The reason being, that

reason between one disposition and another, it is sufficient for making a will.” Wilson v. Mitchell, 101 Pa. St. 495; Hoopes' Est., 174 Pa. St. 373; Rolles v. Kling, 150 Ind. 159; Cash v. Lust, 142 Mo. 630; Chaffey v. Ledwith, 56 N. J. Eq. 333; Entwistle v. Meikle, 180 Ill. 9; Peninsular Trust Co. v. Barker, 116 Mich. 333.

†Page on Wills, Sec. 97, citing Coleman v. Robertson, 17 Ala. 84; Burney v. Torrey, 100 Ala. 157; Tobin v. Jenkins, 29 Ark. 151, and other cases.

*Couch v. Gentry, 113 Mo. 248; Yoe v. McCord, 74 Ill. 33; Burney v. Torrey, 100 Ala. 157; O'Brien v. Spalding, 102 Ga. 90; Smith v. Smith, 48 N. J. Eq. 566; Hall v. Perry, 87 Me. 569; Thompson v. Kyner, 65 Pa. St. 368; Delafield v. Parrish, 25 N. Y. 9; Reichenback v. Rudach, 127 Pa. St. 564.

it takes more mind, more capacity, to bargain with someone else than simply to give away property. It has also been held that less capacity will suffice for making a will than for the transaction of ordinary business, and that a person who has the capacity to transact ordinary business has sufficient capacity to make a will. (Farmer v. Farmer, 129 Mo. 530; Orchardson v. Cofield, 171 Ill. 14.)

Sec. 946. SAME SUBJECT-KINDS OF MENTAL INCAPACITY, GENERAL STATEMENT.-Mere physical weakness, deformity, or disorder, is not alone enough to incapacitate. A man may make a valid will though he is blind, or deaf, or dumb, or exceedingly weak and feeble in body, or of great age, or very near his death. Though all of the facts are of importance, and to be considered where the question of "undue influence" is involved.* But none of the above facts are sufficient to invalidate a will if the testator has sufficient mental capacity as stated in the general rule given in the previous section (Sec. 945), that is, if he understands the nature and extent of his property, his relation to, and the proper objects of his bounty, and the nature of the act which he is about to perform.†

†Goods of Beale, 3 S. & T. 430; Potts v. House, 6 Ga. 324; Wilson v. Mitchell, 101 Pa. St. 495; Ayres v. Ayres, 43 N. J. Eq. 565; Bain v. Cline, 24 Oreg. 173. The rule at Common Law was that persons born deaf and dumb, or blind, were considered "non compotes" and without capacity to make a will. 2 Bl. Com. 497; Yong v. Sant, 1 Dyer 550.

*Page on Wills, Sec. 117; see also Sec. 951.

†Bevelot v. Lestrade, 153 Ill. 625; Hathorn v. King, 8 Mass. 371.

So mere weakness of memory, vacillation of purpose, eccentricities of the person, as vanity, selfishness, credulity, filthiness, belief in witchcraft or spiritualism, or mere miserliness, are not enough to invalidate the will of a person, these peculiarities and failings being common to all in a greater or less degree, and having of themselves no effect upon testamentary capacity.‡ But it is to be remembered that if these eccentricities are the result of insanity, or the symptoms of insanity, the rule will be different.

The fact that the will is unjust and foolish is not necessarily evidence of unsound mind in its maker, though these facts raise a presumption against mental capacity.

It is capacity to make the particular will in question that is required of the testator, and not capacity to make a will generally. So that if testamentary capacity, according to the general rule already given, exists at the time of making the will involved, it is sufficient. There are certain forms of mental unsoundness which quite generally are held to incapacitate a person from making a will, and though it is truly said that a complete discussion of these belong to the domain of psychology and medicine, we will discuss them briefly.

Sec. 947. SAME SUBJECT-KINDS OF MENTAL INCAPACITY, IDIOTS AND IMBECILES.—An idiot is a person who from birth has been

Bennett v. Hibbert, 88 Ia. 154; Austen v. Graham, 8 Moore P. C. 493; Farnum v. Boyd, 56 N. J. Eq. 766; Tallman's Will, 144 Pa. St. 286; Prentiss v. Bates, 88 Mich. 567.

deficient in intelligence, or, as stated by Blackstone, "who hath had no understanding from his nativity, and therefore is by law presumed never likely to attain any." (1 Bl. Com. 302.) Technically the term "idiot" includes only those who were born deficient, and thus differs from an "imbecile" who has become mentally deficient by reason of sickness, or disease.* Idiots have no testamentary capacity.†

But mere weakness of mind, whether natural, or caused by sickness or age, will not incapacitate a person from making a will if he has that degree of soundness of mind which has already been described.‡

Imbeciles, as regards their mental condition, are considered the same as idiots, and are without testamentary capacity.§

SUBJECT-KINDS

OF

Sec. 948. SAME MENTAL INCAPACITY, LUNATICS.-Under this topic of lunatics, or lunacy, we include all that class of persons whose minds once rational, have from accident, disease, or otherwise, become permanently disor

*Speedling v. Worth County, 68 Ia. 152; Delafield v. Parish, 25 N. Y. 9.

Hovey v. Chase, 52 Me. 304.

‡Bennett v. Bennett, 50 N. J. Eq. 439; Hoban v. Campua, 52 Mich. 346.

§Ayres v. Ayres, 43 N. J. Eq. 565; Hudson v. Hughan, 56 Kan. 152; Smith v. Smith, 75 Ga. 477. "Imbecility or idiocy. A condition in which the organs have never been sufficiently wellconformed to permit those affected to reason correctly."-Abbott's L. Dict., Insanity.