of mental soundness is required for any one of these things,—responsibility for crime, capacity to marry, capacity to contract, capacity to give evidence as a witness,-I must tell you, without fear of contradiction, that the highest degree of all, if degrees there be, is required in order to constitute capacity to make a testamentary disposition. And you will easily see why. Because it involves a larger and wider survey of facts and things than any one of those matters to which I have drawn your attention. Now I would call your attention to a case which has been frequently adverted to during the course of this trial, the case of Banks v. Goodfellow which was decided in the Court of Queen's Bench, when I had the honour of being a member of it. I was a party to the judgment, but the language of it was that of the present Lord Chief Justice. As a party to it, I am bound by it in the sense in which I understand its words. There can be little room for misconception as to its meaning, but I will explain to you the scope and bearing of it. It was a case in which a man who had been subject before and after making his will to delusions, was not shown to be under the influence of those delusions at the time, or, on the other hand, to be so free from them, that if he had been asked questions about them, he would not have manifested that they existed in his mind. But he made a will, by which he left his property to his niece, who had lived with him for many years, and to whom he had always expressed an intention to leave his property, and to whom, in the ordinary sense of the word, it was his duty to leave the property, and of whom it was right he should take care on his death. It was left to the jury to say whether he made that will uninfluenced by the delusions he was shown to have had before and after; and the jury found that the will which I have described to you was made free from the influence of the delusions under which he suffered; and it was held that, under those circumstances, the jury finding the fact in that way, such finding could not be set aside. I will not trouble you by reading the whole judgment, which, however, would well repay the trouble of reading it, by laymen as well as by professional men, but I will pick out passages to show you how carefully guarded against misapprehension the decision is. I shall have occasion by-and-by to call your attention to instances in which I think it has been sought to apply it incorrectly in the

arguments which have been addressed to you. In one passage the Lord Chief Justice says: "No doubt when the fact that a testator has been subject to any insane delusion is established, a will should be regarded with great distrust, and every presumption should, in the first instance, be made against it. Where insane delusion has once been shown to have existed, it may be difficult to say whether the mental disorder may not possibly have extended beyond the particular form or instance in which it has manifested itself. It may be equally difficult to say how far the delusion may not have influenced the testator in the particular disposal of his property. And the presumption against a will made under such circumstances becomes additionally strong, where the will is, to use the term of the civilians, an inofficious one; that is to say, one in which natural affection and the claims of near relationship have been disregarded." In an earlier passage the Lord Chief Justice lays down with, I think I may say, singular accuracy, what is essential to the constitution of testamentary capacity: "It is essential to the exercise of such a power (of making a will) that a testator shall understand the nature of the act, and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect, and with a view to the latter object that no disorder of the mind shall poison the affections, pervert his sense of right, or prevent the exercise of his natural faculties, that no insane delusion shall influence his will in disposing of his property, and bring about a disposal of it which, if the mind had been sound, would not have been made. Here, then, we have the measure of the degree of mental power which should be insisted on. If the human instincts and affections, or the moral sense, become perverted by mental disease, if insane suspicion or aversion take the place of natural affection, if reason and judgment are lost, and the mind becomes a prey to insane delusions calculated to interfere with and disturb its functions, and to lead to a testamentary disposition, due only to their baneful influence, in such a case it is obvious that the condition of testamentary power fails, and that a will made under such circumstances ought not to stand." Gentlemen, I have no fear, when rightly understood, of that case being misapplied...

Now, gentlemen, these being the epochs of his life, let us direct our attention to the manifestations of character and condition of mind in him. I have already said, in my opening observations, that a very large allowance must be made for eccentricities. I do not say that they never in themselves can amount to evidence upon which a jury would be justified in coming to the conclusion that a man is of unsound mind, when coupled with what I will call, for convenience sake, an unnatural will, but, certainly, eccentricities must not be allowed to weigh heavily in the scale against the argument that a man is of sound mind. Really the forms and usages of society surround us like an atmosphere, and compress us all into a somewhat monotonous uniformity of mould, and if a man is relieved from this pressure, his individuality will expand into strange and sometimes fantastic shapes, but it must not be assumed he is on that account insane. Many of the acts of the deceased of this kind, which have been enumerated by counsel, cannot, I think, in themselves establish, and are very far from establishing, unsoundness of mind. They may suggest the idea, they may help to confirm the idea derived from other sources, that there was unsoundness in his mind; they may, so to speak, fill up the crevices of the argument, but they do not themselves constitute sound material on which a conclusion can be built as to the deceased's capacity. (His Lordship fully reviewed all the evidence which had been produced at the trial, and concluded:)

It is for you to say whether the accumulation of this evidence (for the defendants) has not this effect on your minds that it leads you to the conclusion that, whatever fluctuation there may have been in the condition of Mr. Knight's mind, for some years before he made this will he had been subject to delusions, especially in reference to the character, the intention, and the motives of his son's acts; and if you so find, then I must impress upon you that it becomes the duty of the plaintiffs to satisfy you that at the time the testator made the will he was free from those delusions, or free from their influence. The burthen of proof, as it is called, is upon those who assert that the testator was of a sound and disposing mind. In considering the question you cannot put aside the contents of, and

surrounding circumstances connected with, the will. Again, on considering whether or not the testator was free from delusions as to the characters of his several sons, when he passed them over in the disposition of his real estate, leaving them only limited sums of money out of his personalty, you must not disregard the fact that he selected in their place one who had no natural claims upon him, of whom he knew little, and to whom he was under no such obligations as are usually recognized as the foundation of such gifts. You must take that into your consideration in determining whether at the time the deceased made his will those prevailing delusions to which I have referred had passed away, or were utterly inoperative. Gentlemen, I have detained you at some length. I felt the importance of the case was such as to justify it, and I now leave you to discharge that responsible duty of which I reminded you at the outset of the observations I have addressed to you.

The jury found, that on the 27th of January, 1869, the date of the will propounded by the plaintiffs, the deceased, John Knight, was not of sound mind, memory and understanding. Will pronounced against.

WADDINGTON v. BUZBY.

45 N. J. Eq. 173, 16 Atl. Rep. 690. Court of Errors and Appeals of New Jersey, Feb. 1, 1889.

Appeal from prerogative court; McGill, Ordinary. 43 N. J. Eq. 154, 10 Atl. Rep. 862.

A written instrument alleged to be the last will and testament of Ruth W. Buzby was offered to the orphans' court of Salem county for probate, by George G. Waddington, executor therein named, and probate was refused on objections raised by Nathan W. Buzby. On appeal the order refusing probate was affirmed by the ordinary, and the proponent appealed to this court.

SOUDDER, J. A careful consideration of the facts in this case has changed my first impression, and led me to a different

result from that reached in the courts which have made the prior examinations of the questions presented. It appears, in my judgment, that sufficient weight has not been given to the extent of the right which the law gives to the owners of property to dispose of it by will, the moderate capacity required for the exercise of this right, and the aid they may invoke from others in giving order and legal form to their wishes without subjecting them to the charge of fraud and undue influence. At the date of this writing and its execution, April 20, 1882, Ruth W. Buzby was about 83 years old, and she died in 1886. She was feeble and forgetful to the extent that persons ordinarily are at such an advanced age, and she was nearly blind, so that she could not read, or did so with difficulty. But she could at that time go about the house, knew the members of the family, talked about her business affairs, remembered the amount of her property and where it was invested, objected to the reduction of the percentage of interest, took a part in the routine of the house and the payment of bills, and conversed with visitors whom she knew. She had been an intelligent woman, but not of very strong will, rather reticent than talkative, and became more silent and absent-minded as she grew old. She was injured by a fall, and failed in physical and mental strength from that time gradually until her death. The opinions of witnesses as to her mental capacity are of no weight unless sustained by facts on which such opinions are founded; and those who saw her seldom, or but once, and say she was silent, and appeared absent-minded, give little aid in determining this question. Lowe v. Williamson, 2 N. J. Eq. 82; Sloan v. Maxwell, 3 N. J. Eq. 581; Whitenack v. Stryker, 2 N. J. Eq. 8; Andress v. Weller, 3 N. J. Eq. 605; Stackhouse v. Horton, 15 N. J. Eq. 202; Pancoast v. Graham, Id. 294; Stevens v. Vancleve, 4 Wash. C. C. 262; Den. v. Vancleve, 5 N. J. Law, 589; Harrison v. Rowan, 3 Wash. C. C. 580; Turner v. Cheesman, 15 N. J. Eq. 243; Eddy's Case, 32 N. J. Eq. 701, 33 N. J. Eq. 574; Collins v. Osborn, 34 N. J. Eq. 511; and others that might be cited,-are cases in our state where persons who were aged, diseased, blind, and infirm have executed wills, and the rule of capacity by which they may be sustained has been enunciated.