Gardner v. Gardner. liable on that ground. At any rate, it was by no means straining a point to say, that, after a lapse of time, she ought to have collected the debt from a fund sufficient in itself; and probably, in a great measure, under her personal control. If the contrary of all this were true, why was that not shown by her? The presumption was not conclusive against her. I have thus far gone through with several branches of the argument submitted to us by the counsel of the appellant, because I did not know how far the members of the court would agree with me in respect to another branch of it, still ranging under the main point in the cause. On that I have felt myself constrained to agree with him; and should the court think with me in the view which I have taken of it, they will perceive that the appeal is well founded. Lastly. It was said that the testator, in his life time, forgave Mrs. Gardner the debt in question, by procuring and burning the bond which was taken as evidence of it. The only direct proof of this fact is derived from the deposition of Mrs. Milnor, the daughter of the appellant, and the stepdaughter of the testator, who, as I infer, was either a resident in the testator's family, or very often with them, from 1827 when she says the loan was made, to February or March, 1829, when she says the bond was destroyed. The testator died in July next ensuing. She says that he at first kept the bond himself, but when he got sick he gave it to Mr. Williams, with instructions that, if any thing happened to him, the testator, he, Mr. Williams, should destroy it. He afterwards told Mrs. Gardner to destroy it, if any thing happened, which she declined. He then sent for the bond, and himself committed it to the fire, telling Mrs. Gardner that the money was hers. I have not been able to read Mrs. Milnor's deposition without the impression that the chancellor appears to have entertained, viz. that the bond was in truth destroying by the testator, with the intent to forgive this debt: nor have the collateral facts, which are supposed to furnish marks of fabrication on the part of the witness had the effect to weaken my impression. The strongest of these facts is an alleged Gardner v. Gardner. want of recollection by the witness, of the person by whom the testator sent to Mr. Williams for the bond; as if she might fear contradiction from risking a disclosure of the name. But beside omitting to say that she even saw the messenger, she names Mr. Williams, who might have contradicted her in several important particulars, if she spoke untruly, and whose non-production by the legatees is entirely unaccounted for. That a family transaction of this kind should have been witnessed only by the family, is of all things the most natural; and it is not surprising that the only witnesses were the mother and daughter, whose offices were at that time important about the person of the testator. He had no children of his own, and was not on the best terms with his brother, to whose children he bequeathed a portion of his estate. He appears to have entertained sentiments of great kindness for the witness, to whose son he had conveyed a small tenement; and towards his wife, the appellant, to whom he bequeathed one half of his personal estate. His will had been made in 1825; and having, perhaps, lived in some measure upon her bounty; and at any rate been the cause of much trouble and mortification to her by his habits of intoxication, it is not strange that, in the interval of recollection which seems to have returned upon him, he should have thought the scanty provision in his will unequal to the demands upon his gratitude and his kindlier feelings. With a competency of her own, on which she might have separated from him, she had forborne to do so; and, by taking care of him, had given an earnest of disinterested affection sufficient to account for the destruction of the bond upon principles far other than those of undue influence. That he himself was childless, that his wife's daughter was a pensioner upon the bounty of her mother, and the family of his brother, the respondents, had been in some measure alienated, even if it were by his own fault, furnished perhaps an additional motive, which we have no right to question. Such a concourse of circumstances coming in aid of Mrs. Milnor's narrative, to my mind much more than counterbalances the criticisms founded on her relationship to the respondent, or interest in adding to her mothers's means of Gardner v. Gardner. kindness to herself. As the gift of the debt was in nature of a testamentary disposition, it is undoubtedly right that we should look to the motives which argue the fitness of the act, both as a test of its probability and sanity. The chancellor seems to have entertained great doubt of the testator's sanity, and assuming that the bond was destroyed with the intent imputed, he presumed that the wife or some one else had persuaded the testator to that act, he not being at the time of sound and disposing mind and memory, or being at least open to the assaults of undue influence. I entirely agree to adopt the test proposed by the chancellor; if the testator was unfit to make a codicil, he was equally unfit to forgive the debt. The proof on that subject is, that he was an intemperate man, and had been so from 1815 to 1829, some 14 or 15 years, though Mrs. Milnor says he was never out of his senses till 1825. His derangement at this time could not have amounted to any very serious disqualification: for in that year he made a very judicious will, in which all parties acquiesce. In the course of the ensuing four years his fits of drunkenness became more frequent, his intemperance had grown into a confirmed habit, and his constitution was found to be gradually giving way, notwithstanding the efforts of his friends to break the habit. He was twice confined in the lanatic asylum, which I understand to have been among the expedients resorted to for the purpose of checking his career of drunkenness. I read of no insanity among the proofs except what arose from the excessive use of ardent spirits. I lay no stress on his being removed from the office of guardian, because I think any master in chancery would report in favor of removing an intemperate man from such a place, though he were yet far short of insanity. That he had surrendered the management of his property and business to his wife, was evidence either of unusual discretion on his part, or of a salutary influence on hers. I cannot deny that, in the words of the chancellor, the testator was a broken down inebriate; nor that such a man might be entirely unqualified to make a will. Reason might have been dethroned, memory might have lost its seat, and the man have been Gardner v. Gardner. reduced to the condition of a mere driveller; but ordinarily this is not so. To whatever extent the constitution may be physically impaired by intemperance, the mind retains sufficient strength for the purpose of transacting common business, when not clouded by actual intoxication. Cases were cited at the bar, that if general insanity be established, it will be presumed to continue, unless a lucid interval at the time of the transaction in question be clearly shown; but does proof that a man is in the habit of often getting drunk, and has even been a drunkard for years, make out a case of general insanity within the rule? The greatest drunkard is frequently sober, perhaps every day; his habit is in a degree under the control of himself and his friends; and during the few months that this man spent in the lunatic asylum, the mad-house, as it has been called by way of emphasis, he was no doubt entirely sober and therefore sane. If his unfortunate indulgence in the use of ardent spirits had resulted in a settled derangement of mind, independent of the immediate influence of drink, (and if the proof comes short of this, a case of general insanity is not established,) why was nothing of that kind shown or attempted to be shown at the hearing? Why was not the family physician called? General sanity is the natural and ordinary condition of the mind, and is to be presumed till the contrary is established. But we are not left to presumption. Mrs. Milnor says that about a month before the bond was destroyed, she and her mother having received word that the testator was perfectly himself, went and brought him home from the asylum, whither he had been for the last time. He soon after told Williams to destroy the bond, and finally sent for it and destroyed it himself, being perfectly sane of mind; in the phrase of the witness, he was entirely himself; he was not very well; but only weak. I do not find a word of proof that after he returned home the last time, his mind was unsettled, or that he had even relapsed into his accustomed indulgence. His whole conduct in making the gift, as sworn to, bears strong marks of deliberation; and the transaction is, in its own character, an argument in favor of sanity. If there were in truth the power of malign influ Gardner v. Gardner. ence on the part of the wife, and a disposition to abuse the power, why was it not exerted in a total alteration of the will? Why suffer any part of the estate to pass to the respondents? They had stood in the will for half the personal estate, ever since 1825; the one half only having been bequeathed to the wife. The destruction of the bond was the addition of only $1000 more; for the will already carried one half of the bond to her. What more natural, I ask, than that, in a long turn of perfect sobriety, confined by bodily weakness with his family, he should review the four years which had elapsed since his will had been made, the care, the anxiety, the shame which his unfortunate appetite had in the meantime inflicted on his wife; and see the fitness of adding at least this meagre and disproportionate codicil? Is there the least difficulty in accounting for such an act; without raising the hypothesis of insanity, or of undue influence? In turning over the books with a view to the form of this gift, I was struck with its similarity, in several respects, to a case which came before Lord Hardwicke in 1740; Richards v. Syms, Barnardist, Ch. Rep. 90. There the defendant borrowed £3000 of the complainant's father, giving a bond and mortgage. The defendant's mother was uneasy on account of his contracting so heavy a mortgage debt; but the mortgagee told her in her son's presence, that she need not be uneasy, as it was in his power to be kind to her son. The bond and mortgage were kept for some time by a trustee; but the defendant procured them from him, and brought them in a box to the mortgagee's house, where the mother was, and requested him to take and keep them himself. Upon this, as it was sworn on the part of the defendant, the mortgagee put back the bond and mortgage with his hand; and said "take back your writings: I freely forgive you the debt." Turning to the mother, he said, "I always told you I would be kind to your son; now you see that I am as good as my word." But this evidence was contradicted on the part of the complainant, who was the mortgagee's son and heir. Lord Hardwicke held that, taking the case as made out on the |