by the circumstance that the signature shall not follow or be immediately after the foot or end of the will, or by the circumstance that a blank space shall intervene between the concluding word of the will and the signature, or by the circumstance that the signature shall be placed among the words of the testimonium clause or of the clause of attestation, or shall follow or be after, or under the clause of attestation, either with or without a blank space intervening, or shall follow or be after, or under, or beside the names or one of the names of the subscribing witnesses, or by the circumstance that the signature shall be on a side, or page, or other portion of the paper or papers containing the will, whereon no clause or paragraph or disposing part of the will shall be written above the signature, or by the circumstance that there shall appear to be sufficient space on or at the bottom of the preceding side or page, or other portion of the same paper on which the will is written to contain the signature; and the enumeration of the above circumstances shall not restrict the generality of the above enactment; but no signature under the said act or this act shall be operative to give effect to any disposition or direction inserted after the signature shall be made. CHAPTER III. WHAT PROPERTY MAY BE DISPOSED OF BY WILL* * See Secs. 935-938, Vol. 7, Cyclopedia of Law, and cases there cited CHAPTER IV. WHO MAY MAKE A WILL.* Disabilities of Mind, or Incapacity from Unsound Mind -"Sound Mind" Explained.t CONVERSE v. CONVERSE. 21 Vt. 168. 1849. Appeal from a decree of the probate court, allowing the will of Hamblin Converse. Trial by jury, December Term, 1848. BENNETT, J., presiding. The court, at the trial, among other things not objected to, instructed the jury that the validity of the will in question must depend upon the fact, whether the testator had sufficient mental capacity to execute it at the time it was executed; and that, to give it effect, he must then have been of sound disposing mind; but that this did not in any way imply that the powers of the mind must not have been weakened or impaired by disease or old age; and in regard to the degree of capacity, which the jury must be satisfied the testator possessed at the time of making the will, the court told the jury, that it would not be sufficient that he might be able to comprehend and understand a question which might be propounded to him, and answer it in a rational manner; nor was it necessary that he should have such a capacity of mind as would justify his engaging in complex and intricate business; but that the jury must be satisfied, in order to justify them in establishing the will, that the testator, when he made it, 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 * See Secs. 939-956, Vol. 7, Cyclopedia of Law. the manner in which it was to be distributed between them; and that, if they found all this, it should be found that he had sufficient capacity to make the will in question, but otherwise not. The jury returned a verdict establishing the will. Exceptions. The opinion of the court, on appeal, was delivered by REDFIELD, 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 dispose 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. 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, understandingly, 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 consequently it is somewhat more difficult to see clearly the just bearing of all the relations presented than under the common circumstances of making a will, where one is free to act upon his own perceptions merely. But this is not always the case in making a will. One may be beset by an army of harpies in the shape of hungry expectants for property, altogether more perplexing than the ordinary circumstances attending a disposition of property by sale. But it may be safe, no doubt, to affirm that, in making any contract understandingly, one must have something more than mere passive memory remaining. 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 more 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 before done for them, relatively to each other, and the amount and condition of his property, with some other things perhaps. The capability of men in health to form correct judgment in such matters is no doubt very unequal, and, when there is no inherent incongruity in the will itself, and no just ground to suspect improper influence, juries are, and perhaps should be, very liberal in sustaining testamentary dispositions. But there must undoubtedly be some limit. When one is confessedly in a condition to be constantly liable to commit the most ludicrous mistakes in regard to the most simple and familiar subjects, he ought not to and cannot make a will. Judgment affirmed. BOUGHTON AND MARSTON v. KNIGHT ET AL. L. R. 3 P. & D. 64. English Court of Probate, 1873. The plaintiffs, Sir Charles Boughton and Mr. Marston, propounded the will of John Knight, of Henley Hall, Shropshire, dated the 27th of January, 1869. The deceased died on the 7th of September, 1872. The defendants, the sons of the deceased, pleaded that the deceased was not of sound mind, memory, and understanding on the 27th of January, 1869, the day the will bears date. Issue was joined on this plea. The property of the deceased consisted of the Henley Hall estate, the net rental value of which was £1,500 per annum, and personalty to the value of £62,000. By the will propounded Sir Charles Boughton and his sons were the devisees of the whole real estate; the testator's son, James Thomas, had a legacy of £8,000, his son Charles £7,000, and John a life interest in £10,000. The children of his deceased daughter. Henrietta Kent, were not mentioned in the will. The trial extended over fourteen days in March, 1872, before Sir J. HANNEN and a special jury. March 31. Sir J. HANNEN, in summing up, made the following among other observations on the subject of testamentary capacity: The sole question in this case which you have to de termine is, in the language of the record, whether Mr. John Knight, when he made his will on the 27th of January, 1869, was of sound mind, memory, and understanding. In one sense, the first phrase, sound mind, covers the whole subject; but emphasis is laid upon two particular functions of the mind, which must be sound in order to create a capacity for the making a will; there must be a memory to recall the several persons who may be fitting objects of the testator's bounty, and an understanding to comprehend their relationship to himself and their claim upon him. But for convenience the phrase "sound mind" may be adopted, and it is the one I shall make use of throughout my observations. Now you will naturally expect from me a definition, or at any rate an explanation of the legal meaning of the words "sound mind," and I will endeavor to give you such assistance as I am able, either from my own reflections on the subject, or by the aid of what has been said by other judges, whose duty it has been to consider this important question before me. I must commence, however, by telling you what these words do not mean. They do not mean a perfectly balanced mind. If so, which of us would be competent to make a will? Such a mind would be free from all influence of prejudice, passion, and pride. But the law does not say that a man is incapacitated from making a will if he proposes to make a disposition of his property moved by capricious, frivolous, mean or even bad motives. We do not sit here to correct injustice in that respect. Our duty is limited to this: to take care that that, and that only, which is the true expression of a man's real mind, shall have effect given to it as his will. In fact, this question of justice and fairness in the making of wills in a vast majority of cases depends upon such nice and fine distinctions that we cannot form, or even fancy that we can form, a just estimate of them. Accordingly, by the law of England, every one is left free to choose the person upon whom he will bestow his property after death, entirely unfettered in the selection he may think proper to make. He may disinherit, either wholly or partially, his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and we must give effect to his will, however much we may condemn the course he has pursued. In this respect the law of England dif |