grade of professional talent and knowledge. While they have been instructive to the Court, they cannot strictly be regarded as evidence in chief in the cause. Opinions, however respectable, and coming even from the most intelligent minds, are not the sources from which the judicial mind seeks enlightenment. The law, for wise purposes, has precluded it from relying on facts not communicated under the solemnity of an oath, and it is the duty of every tribunal called upon to pass on a question of fact, to confine its investigations to such facts as are verified in a legal manner. If it then fails in arriving at the truth, it will have done its whole duty, and the result must be attributed to the imperfections of our judicial system, and the inadequate tests which the mind is capable of applying to discover it. We have not, therefore, considered as evidence the mere opinions of these medical gentlemen, and we have accordingly examined their disquisitions in the same manner, and for the same object, that we would examine any medical treatises on the same subject. Their value consists mainly in the arguments and reasons they contain, as applicable to the facts developed in the present case, and we have so regarded them. They have been to us sources of great instruction, and are valuable contributions to the study of medical jurisprudence, and exhaust the medico-legal aspects of the intricate diseases of the brain arising from apoplexy, paralysis, and epilepsy.

Conclusion.

In the consideration of cases like the present, in reviewing the findings of the Surrogate on questions of fact as well as his conclusions of law, we regard the matter as res nova with us. It is true, we have not the living witnesses before us, but we have their testimony, taken with all the safeguards which the law affords, and we have all the facilities of arriving at the truth which the Court of Chancery, or the ecclesiastical courts, ever had. It certainly affords us gratification, then, on the careful examination of all the testimony in the case, aided by an extended discussion by able and learned counsel, and the mature consideration which has been given to the case, to have arrived at the same conclusion as that of the learned and intelligent Surrogate who heard it in the first instance, and whose decision was affirmed by the Supreme Court. In the examination of the peculiar features of the present controversy, we have also been assisted and gratified by the profound and elaborate preparation, as well as by the learned and interesting dscussions of the eminent counsel who have addressed the Court. It is one of those cases in reference to which Mr. Justice ERSKINE wisely and justly said, "that the protection of the law is in no cases more needed than it is in those

where the mind has been too much enfeebled to comprehend more objects than one, and most especially where that one object may be so forced upon the attention of the invalid as to shut out all others that might require consideration." These views lead to the establishment of the will of 1842, unaffected by, and in no wise impaired by the codicils of September, 1853, and June, 1854.

We are of the opinion that the judgments in each of the two aboveentitled causes should be affirmed, without cost to either party in the first, but with costs in the second cause.

DENIO, WRIGHT, ALLEN, and SMITH, Justices, concurred.

GOULD, J., concurred in the conclusions, but not in the opinion of the majority of the Court. He held that Mr. Parish was competent within the rule laid down in the case of Stewart vs. Lispenard (26 Wendell, 255).

That, while an idiot cannot make a valid will, yet one who has any mind at all, however low his grade of intellect, may do so; that the law does not distinguish between different degrees of intelligence, and that to deprive a man of testamentary capacity, he must be totally des titute of reason and understanding. This decision he considered to be binding on this Court. He held, however, that the mind of Mr. Parish was very much enfeebled, and that the codicils were void by reason of the fraud and undue influence of Mrs. Parish; that they were her codicils, and not his.

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SELDEN, Ch. J., concurred with the majority of the Court in overruling the case of Stewart vs. Lispenard, considering that no amount of authority can establish a rule which is self-contradictory." He dissented, however, from the conclusions of the Court as to the competency of Mr. Parish. He was impressed with the decided opinion of his capacity, testified by Dr. Taylor, Mr. Lord, Governor Bradish, Mr. Tileston, and the brothers of Mrs. Parish. "It is certainly very difficult to suppose that the four highly-cultivated and intelligent gentlemen first named could have had the interviews and intercourse they describe with a man who was substantially an idiot, and not be aware of the fact. I can myself frame no hypothesis upon which such a thing would seem to be at all probable. But if we assume that these gentlemen might all have been deceived, it is quite as possible to believe that the three brothers of Mrs. Parish could have been mistaken. That they should have had daily and almost hourly communication with Mr. Parish for six years, and not know whether he could understand the remarks addressed to him by themselves, is inconceivable. Intelligence, or the want of it is

manifested not by speech alone, but by gesture, air, manner, and countenance. An accidental concurrence of these might deceive for a time, but not for a series of years, or even days. That the Messrs. Delafield supposed that Mr. Parish had intelligence, is proven, if they are consid ered in the slightest degree honest, not merely by their own testimony in this case, but by their whole treatment of him as disclosed by the other evidence. They addressed him as they would have done before his attack, conversed with him, consulted him, told him the news of the day, &c., &c., and never discontinued this practice until the close of his life. That they could have pursued this course for six years, toward a man without understanding, and still suppose him intelligent, can never be believed. The positions on the other side attribute to Mrs. Parish not merely the wickedness, but the power of a demon."

SUTHERLAND, J., concurred with SELDEN, J.

For affirmance of the judgment of the Surrogate and Supreme Court, holding the codicils to be void, DENIO, DAVIES, WRIGHT, Allen, SMITH, and GOULD, Justices-6.

For reversal, SELDEN and SUTHERLAND, Justices-2.