Weakness of "It is not necessary," observed Lord Chief Baron Eyre, in Mountain v. Bennett (i), "to go so far as to make a man absolutely understanding. insane, so as to be an object for a commission of lunacy, in order to determine the question, whether he was of a sound and disposing mind, memory and understanding. A man perhaps may not be insane, and yet not equal to the important act of disposing of his property by will." So it was agreed by the judges in Combe's Case (k), that sane memory for the making a will is not at all times when *the party can speak yea or no," or had life in him, nor when he can answer to anything with sense but he ought to have judgment to discern, and to be of perfect memory. And it is said by Lord Coke, in the Marquis of Winchester's Case (4), that it is not sufficient 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 as to be able to make a disposition of his property with understanding and reason; and that is such a memory which the law calls sane and perfect memory (m). So it is laid down by Erskine, J., in delivering the opinion of the Judicial Committee of the Privy Council, in Harwood v. Baker (n), that in order to diate family or property, Van Alst v. Hunter, 5 Johns. Ch. 148; especially if such failure be merely such as incident to old age. Montague v. Allen, 78 Va. 592; Wilson v. Mitchell, 101 Pa. St. 495. So where, on a question of mental incapacity, the claim is only of incapacity such as arises by gradual decay of faculties from great age, it is proper to show, in order to prove sufficient capacity, that after the trial in question, and without regard to how long after, the person had sufficient capacity. Pinney's Will, 27 Minn. 280. But inability to transact ordinary business, arising from physical weakness, does not of itself incapacitate one from making a will, and, as a general proposition, if a testator is able to attend to the ordinary affairs of life, this will have great weight for the will on an attempt to defeat the will for lack of mental capacity. Brown v. Riggin, 94 I. 560; Meeker v. Meeker, 75 Id. 260; Brinkman v Rueggesick, 71 Mo. 553; Carpenter v. (i) 1 Cox, 356. (k) Moor 759. Vin. Abr. tit. Devise, A. 224. Burn, E. L. 49. (1) 6 Co. 23, a. 4 Burn, E. L. 49. (m) See further, Herbert v. Lowns, 1 Chanc. Rep. 24. Dyer, 27, a, in marg. Ball v. Mannin, 3 Bligh, N. S. 1. See also the judgment of Sir John Nicholl, in Marsh v. Tyrrell, 2 Hagg. 122, as to the rules by which the competency of the mind must be judged; and see further the judgment of the same learned judge in Ingram v. Wyatt, 1 Hagg. 401, where some valuable remarks on the subject of imbecility of mind will be found. For an instance, where weakness of mind and forgetfulness will not constitute incapacity, see Constable v. Tufnell, 4 Hagg. 465: affirmed on appeal, 3 Knapp, 122. 'n) 3 Moo. P. C. C. 282, 290. constitute a sound disposing mind the testator must not only be able to understand that he is by his will giving the whole of his property to the objects of his regard, but must also have capacity to comprehend the extent of his property and the nature of the claims of others whom, by his will, he is excluding from participation in that property (o).25 On the other hand it must be observed, that mere weakness of understanding is no objection to a man's disposing of his estate by will; for courts cannot measure the size of people's understandings and capacities; nor examine into the wisdom or prudence of men in disposing of their estates (p).26 "If a man," says Swinburn (q), “be of a mean understanding *(neither of the wise sort or the foolish), but indifferent as it were, betwixt a wise man and a fool, yea, though he rather incline to the foolish sort, so that for his dull capacity he might worthily be termed grossum caput, a dull pate, or a dunce, such a one is not prohibited from making his testament " 27(r). (0) See also Sefton v. Hopwood, 1 Fost. & F. 578. Swinfen v. Swinfen, 1 Fost. & F. 584. 25. The burden of proof that the mind of the testator was imbecile is on the party impeaching the will. 2 Greenl. Ev., 689. The attesting witnesses to a will are placed there by statute to be satisfied not only that the act done was performed by the testator, but that he was in a mental condition that qualified him to dispose of his property by will. For this reason such witnesses are not only allowed, but expected, to give their opinions as to the mental condition of the testator at the time the will in question was executed. Other witnesses are to state facts that tend to show the state of mind of the testator, but they will not be permitted to give their opinions, merely, of the mental capacity of the testator. 2 Greenl. Ev., 69. The subscribing witnesses to a will are those called by the testator for the express purpose of attesting after the death of the testator to the circumstances attending the execution of the will; their posi tion is, therefore, one of advantage before the court, which pays particular regard to the facts they state as having occurred, and even in their opinions as to the capacity of the testator. Clifton v. Clifton, 2 Dick. 237, 239; Cockrill v. Cox, 65 Tex. 669; Kerr v. Lunsford, 31 W. Va. 659. (p) Osmond v. Fitzroy, 3 P. Wms. 129. 26. The amount of mental capacity must be equal only to the subject with which it has to deal. Clifton v. Clifton, 2 Dick. 227, 241; Wade v. Holbrook, 2 Redf. 378, 387. And where the capacity is fluctuating and at times sinking into the imbecility of second childhood, yet where the weight of evidence is in favor of capacity when in ordinary health and free from excitement, the will may be sustained. Boylan v. Meeker, 2 McCart. 310. Mere forgetfulness alone will not disqualify one from making a will. Mairs v. Freeman, 3 Redf. 181, 208. See note 1, ante p. 11. (q) Pt. 2, s. 4, pl. 3. 27. In cases of this kind an important circumstance is, that the will is reason (r) See also Harrod v. Harrod, 1 Kay & J. 4. Persons drunk: habitual drunkenness. As to the last of the classes of non compotes mentioned by Lord Coke; "He that is overcome by drink," says Swinburn (8), "during the time of his drunkenness is compared to a madman (t), and, therefore, if he make his testament at that time, it is void in law; which is to be understood, when he is so excessively drunk, that he is utterly deprived of the use of reason and understanding; otherwise, albeit his understanding is obscured, and his memory troubled, yet he may make his testament, being in that case "(u). In a case where it appeared that the testator was a person not properly insane or deranged, but habitually addicted to the use of spirituous liquors, under the actual excitement of which he talked and acted in most respects like a madman, it was held that as the testator was not under the excitement of liquor, he was not to be considered as insane at the time of making his will; and the will itself was accordingly established (x), and the court pointed out the difference between the present case and one of actual insanity; inasmuch as insanity may often be latent, whereas there can scarcely be such a thing as latent ebriety; and consequently, in a case like the one under consideration, all which requires to be shown is, the absence of the excitement at the time of the act done; 28 or at least the absence of excitement in any such degree as would vitiate the act done (y). able and natural, showing strongly that the testator had sufficient capacity to understand thoroughly the business about which he was engaged. Pancoast v. Graham, 2 McCart. 274; Clifton v. Clifton, 2 Dick. 227, 240. (8) Pt. 2, s. 6. (t) See Gore v. Gibson, 13 M. & W. 623. (u) See also Godolph. Pt. 1, c. 8, s. 5. (x) Ayrey v. Hill, 2 Add. 206. See also Billinghurst v. Vickers, 1 Phillim. 191. Handley v. Stacey, 1 Fost. & F. 574. 28. Intoxication is temporary insanity, ceasing with the cause. All rules as to (y) 2 Add. 210. See also Wheeler v. Alderson, 3 Hagg. 602, 608. In the case of Rex v. Wright, 2 Burr. 1099, a rule was obtained to show cause why a criminal information could not be exhibited burden of proof are, therefore, changed in this class of cases. A person is not incapacitated from making a will because of habits of intoxication, not even though he may have suffered from mania a potu. No amount of evidence to establish such facts will shift the burden of proof. The proponent of the will has but to prove the will; if the contestant allege that the testator was incompetent, on the ground of drunkenness, the necessity is on him to prove that, at the time of the factum, the testator was suffering from delirium occasioned by drink. The reason of the rule is evident, and must commend itself at once. The duration against certain persons, for a misdemeanor in using artifices, in order to obtain a will from a woman addicted to, and almost destroyed by, liquor. *If a will be executed by a testator of sound mind at the time of execution, and be afterwards wholly or partially defaced by him, while of unsound mind, such will is to be nounced for as it existed in its integral state, that being compos. of delirium from this cause is but temporary, and when the force of the intoxicant has expended itself, reason returns and the patient is immediately competent to transact his ordinary business. Hence, the rule is, both at law and in equity, that the acts of such a party will not be invalidated, unless it be proved that he was so far deprived of his faculties as to be unable understandingly to perform the act, or to give a free consent, or to be unduly under the influence of others. But in one case it was held, contrary to the general rule, that, where the testator was, for some time prior to the execution of his will and until death, in general in a state of derangement produced by drink, but enjoying some intervals in which he was of disposing mind, in order to establish the will it ought to appear, by undoubted proof, that the will was made in one of those intervals. Cochran's Will, 1 Mon. 263. Habitual drunkenness will not, per se, constitute incapacity to make a valid will. Thompson v. Kyner, 65 Pa. St. 368; McLaughlin's Will, 2 Redf. 504; Kahlt. Schober, Stew. (N. J.) 461; Reichenbach v. Ruddach, 127 Pa. St. 564; Pierce v. Pierce, 38 Mich. 412; Estate of Johnson, 57 Cal. 529; Estate of Lang, 65 Id. 19. The testator may have habits of intemperance, and yet, in the eye of the law, possess that sound mind necessary to a disposition of his estate. Turner v. Cheeseman, 2 McCart. 243. But, where one is lunatic from the excessive use of ardent spirits, the question is, whether he had recovered that quantum of disposing mind which ought to give the writing effect. Pancoast v. Graham, Id. 294, 300. pro A will defaced by the testator while non And, where a testator was addicted periodically to excessive drinking but was not habitually intoxicated, it was held that this did not constitute incapacity. Harmony Lodge's Appeal, 127 Pa. St. 269. But proof that he was intoxicated at the time of the factum is competent, on an issue of undue influence, to show such influence. Estate of Cunningham, 52 Cal. 465. In Waters v. Cullen, 2 Bradf. 354, the will was set aside, on the ground of insanity, where the testatrix died of delirium tremens, to which she had been more or less subject for some time; while, in Stebbins v. Hart, 4 Dem. 501, the will was sustained, the testator being over eighty years of age and much addicted to intemperance, and there being some question as to whether the last illness, during which the will was made, was not the result of excessive drink; and, in Kahl v. Schober, ubi supra, the will was sustained, although the last illness of testator was the result of habits of drunkenness; and when a testator recovered from a severe attack of mania a potu and made his will, and the next day committed suicide, it was held that this was not sufficient ground to hold that he was incapacitated at the time of the factum, and the will was sustained. McElwee v. Ferguson, 43 Md. 479. Where the will was drafted by the testator himself, and its terms are reasonable, this will be strong evidence of a sound and disposing mind, although there be much evidence to prove that the testator was, and had long been, a man of very intemperate habits. McLaughlin's Will, 2 Redf. 504, 516. And, even though the testator be a habitual drunkard, subject Onus of showing sanity at the time of mutilation. ascertainable (z). Accordingly, where a testatrix having duly executed her will, subsequently became insane, and shortly before her death, it was discovered that the will had been mutilated by her; but it was proved to have been in her custody for a short time subsequent as well as prior to her insanity: it was held by Sir C. Cresswell that the onus of showing her to have been of sound mind when she mutilated it was on the party alleging the revocation (a). Insanity supervening between Before the Wills act when signature was not essential to the execution of a will questions used to arise as to mental incathe instructions pacity supervening between instructions for a will and its execution, and it was held that part of a will might Effect of, before be established and part held not entitled to probate if actual incapacity were shown at the time of the execu for a will and its execution. the Wills Act. tion of the latter part (b). Letters written It was decided by the House of Lords in the great case of Doe dem. Tatham v. Wright (c), that letters written to the testator, and not acted upon, or indorsed, or answered by him, are not evidence of his sanity. to testator not evidence of his sanity. SECTION II. PERSONS INCAPABLE FROM WANT OF LIBERTY OR FREE-WILL. Such persons as are intestable for want of liberty or freedom of will are, by the civil law, of various kinds, as *prisoners, captives, and the like (d). But the law of England does not make such persons absolutely intestable, but only leaves it to the discretion of the court to judge upon the consideration of their particular circumstances of duress, whether or no such persons could be supposed to have liberum animum testandi (e). If it can be demonstrated that actual force was used to compel the to the control of a commission, he will not necessarily be incapacitated from making a valid will. Lewis v. Jones, 50 Barb. 645. (z) Scruby v. Fordham, 1 Add. 74. In the Goods of Brand, 3 Hagg. 754. (a) Harris v. Berrall, 1 Sw. & Tr. 153. (b) Billinghurst v. Vickers, 1 Phil. 187; Wood v. Wood, Ib. 357. (c) 4 Bing. N. C. 489. See Rosc. Evid. 14th edition, 973. (d) Swinb. Pt. 2, s. 8; Godolph. Pt. 1, c. 9. (e) 2 Black. Comm. 497. |