nature, but being once able to hear and speak, if by some accident he loses both his hearing and the use of his tongue, then in case he shall be able to write, he may with his own hand write his last will and testament. (e) But if he be not able to write, then he is in the same case as those which be both deaf and dumb by nature, i. e. if he have understanding he may make his testament by signs, otherwise not at all. (f) Such as can speak and cannot hear, they may make their testaments as if they could both speak and hear, whether that defect came by nature or otherwise. (g) Such as be speechless only, and not void of hearing, if they can write, may very well make their testament themselves by writing: if they cannot write, they may also make their testaments by signs, so that the same signs be sufficiently known to such as then be present. (h) Blind per sons. It is laid down in the old text-books of the ecclesiastical law, that although he that is blind may make a nuncupative testament, (i) by declaring his will before a sufficient number of witnesses; yet that he cannot make his testament in writing, unless the same be read before witnesses, and in their presence acknowledged by the testator for his last will; (k) and that, therefore, if a writing be delivered to the testator, and he not hearing the same read, acknowledged the same for his will, and dumb person it should, of course, be shown that the obstacles created by his physical infirmity had been overcome and his mind had been reached and communicated with, so that he was cognizant of the act, knew and approved of the contents of the will, and comprehended the force and purpose of the business he was engaged in when he was doing it. See Shelford Lunacy, 3, 4; Potts v. House, 6 Geo. 324; Morrison v. Lennard, 3 C. & P. 127; State v. De Wolf, 8 Conn. 93; 7 Ency. Brit. (7th ed.) 645, art. Deaf & Dumb; Weir v. Fitzgerald, 2 Bradf. Sur. 42. As to persons deaf, dumb, and blind, Richardson J. in Reynolds v. Reynolds, 1 Spears, 256, 257, said: "I would not say that it is absolutely impossible (although so considered by great writers) that even a blind, Ideaf, and dumb man can make a will." See Weir v. Fitzgerald, 2 Bradf. Sur. 42. Mr. Jarman observes that "it is almost superfluous to observe, that, in proportion as the infirmities of a testator expose him to deception, it becomes imperatively the duty, and should be anxiously the care, of all persons assisting in the testamentary transaction, to be prepared with the clearest proof that no imposition had been practised." 1 Jarman Wills (3d Eng. ed.), 29.] (e) Swinb. pt. 2, s. 10, pl. 2; Godolph. pt. 1, c. 11. (f) Swinb. pt. 2, s. 10, pl. 2; Godolph. pt. 1, c. 11. (g) Ib. (h) Swinb. pt. 2, s. 10, pl. 4; Godolph. pt. 1, c. 11; [Potts v. House, 6 Geo. 324.] (i) See post, chap. 11. § VI. as to the restrictions on nuncupative wills. (k) Swinb. pt. 2, s. 11; Godolph. pt. 1, c. 11. [A blind person may make a will. Ray v. Hill, 2 Strobh. 297; In the Goods of Piercy, 1 Robert. 278.] this would not be sufficient; for it may be that if he should hear the same he would not own it. (1) And the civil law expressly required that the will should be read over to the testator, and approved by him, in the presence of all the subscribing witnesses. But in England this strictness is not required, and it is sufficient if there is satisfactory proof before the court of the testator's knowledge and approval of the contents of the will which he executed; (m) and it is not necessary to produce evidence that the identical paper which the testator executed as his will was ever read over to him. (n) who cannot And what precautions are necessary for authenticating a blind man's will, seem in like degree requisite in the case of a Persons person who cannot read. For though the law in other read. cases may presume that the person who executes a will knows and approves of the contents thereof; yet that presumption ceases, where, by defect of education, he cannot read or by sickness he is incapacitated to read the will at that time. (0) Lunatic. A lunatic, that is, a person usually mad, but having intervals of reason (p) during the time of his insanity, cannot make a testament, nor dispose of anything by will. (q) And "so strong is this impediment of insanity of mind, that if the testator make his testament after his furor has overtaken him, and while as yet it possesses his mind, although the furor after departing or ceasing, the testator recover his former understanding, yet does not the testament made during his former fit recover any force or strength thereby." (r) * If a party impeach the validity of a will on account of a sup (1) Ib. See, also, Barton v. Robins, 3 Phillim. 455, note (b). (m) 4 Burn E. L. 60; Moore v. Paine, 2 Cas. temp. Lee, 595; [Wampler v. Wampler, 9 Md. 540; Martin v. Mitchell, 28 Geo. 382.] See, also, In re Axford, 1 Sw. & Tr. 540. The single oath of the writer has been allowed sufficient by the court of delegates to prove the identity of the will. Ib. (n) Fincham v. Edwards, 3 Curt. 63; affirmed on appeal, 4 Moore P. C. 198; [Hess's Appeal, 43 Penn. St. 73; Boyd v. Cook, 3 Leigh, 32; Clifton v. Murray, 7 Geo. 564; Lewis v. Lewis, 6 Serg. & R. 496; Washington J. in Harrison v. Row an, 3 Wash. C. C. 585.] See, also, Longchamp v. Fish, 2 N. R. 415; post, pt. 1. bk. IV. ch. III. § v. (0) 4 Burn E. L. 61; Barton v. Robins, 3 Phillim. 455, note (b); [Day v. Day, 2 Green Ch. 549; post, 115, note (x5).] See post, pt. 1 bk. IV. ch. III. § v. (p) Beverley's case, 4 Co. 124 b. (q) Swinb. pt. 2, s. 3; Godolph. pt. 1, c. 8, s. 2. (r) Swinb. pt. 2, s. 3, pl. 2; Godolph. pt. 1, c. 8, s. 2. But a will is not revoked by the subsequent insanity of the testator. Swinb. pt. 11, s. 3, pl. 3; 4 Co. 61 b; post, pt. 1. bk. II. ch. 111. § v. posed incapacity of mind in the testator, it will be incumbent on such the party to establish such incapacity by the clearest and most satisfactory proofs. (8) The burden of proof rests upon the person attempting to invalidate what, on its face, purports to be a legal act. (t) Sanity must be presumed till the contrary is shown. (u) Hence, if there is no evidence of insanity at the time of giving the instructions for a will, the commission of suicide, three days after, will not invalidate the instrument by raising an inference of previous derangement. (x) But it must be borne in mind, that the presumption of sanPresump- ity is not to be treated as a legal presumption, (1) sanity. but, at the utmost, as a mixed presumption of law and fact (if not as a mere presumption of fact), that is, an inference tion of (s) The law seems unsettled as to how far, in cases of alleged unsoundness of mind, hereditary constitutional insanity may be pleaded. Frere v. Peacocke, 3 Curt. 664. [It is competent on the trial of an issue of the testator's sanity, to show the insanity of his parents and of his uncle. Baxter v. Abbott, 7 Gray, 71, 81, 82; Tyrrell v. Jenner, cited 3 Curt. 669; Frere v. Peacocke, 3 Curt. 664; Shailer v. Bumstead, 99 Mass. 112, 131; Snow v. Benton, 28 Ill. 306. See Shelford Lunacy, 59, 60. But it seems such evidence is not admissible in aid of proof showing mere weakness of mind or eccentricity. Colt J. in Shailer v. Bumstead, 99 Mass. 131. Mere moral insanity, that is, disorder of the moral affections and propensities, will not, unless accompanied by insane delusion, be sufficient to invalidate a will or to incapacitate a person to make one. Boardman v. Woodman, 47 N. H. 120, 136-139; Frere v. Peacocke, 1 Robertson Ecc. 442; Forman's Will, 54 Barb. 274. See 3 Am. Law Reg. N. S. 385; Smith v. Commonwealth, 1 Duvall (Ky.), 224; Bitner v. Bitner, 65 Penn. St. 347.] (t) 2 Phill. Ev. 293, 7th ed. (u) Groom v. Thomas, 2 Hagg. 434; [Trumbull v. Gibbons, 2 Zabr. 117, 155; Sloan v. Maxwell, 2 Green Ch. 581.] (x) Burrows v. Burrows, 1 Hagg. 109. See, also, Hoby v. Hoby, 1 Hagg. 146; [Brooks v. Barrett, 7 Pick. 94; to be made by a jury from the absence of evidence to show that the testator did not enjoy that soundness which experience shows evidence to impeach it. The presumption of sanity would be sufficient until there was something to meet it. Yet our cases uniformly hold that the party seeking probate of the will must produce the attesting witnesses to show not merely the execution of the instrument, but the sanity of the testator at the time of its execution. And such has been, we think, the uniform practice in the probate courts, and in this court sitting as the supreme court of probate." See per Parker C. J. ⚫ in Brooks v. Barrett, 7 Pick. 98, 99. In these suggestions the course of practice applicable to one class of cases only, is stated to sustain a doubt as to a rule which ought to be made applicable to all classes, in some of which the practice suggested could not be availed of. The same course of practice has been long settled in New Hampshire, and probably in many other states. See per Whitman C. J. in Gerrish v. Nason, 22 Maine, 438, 441. But in New Hampshire it is not regarded as raising any inference against the presumption of sanity in the testator. In Perkins v. Perkins, 39 N. H. 163, 168, Bell C. J., in explanation of this practice and to show that it is consistent with the presumption of sanity, says, "Owing to the nature of the proceedings in the case of wills; that the probate of the will is the foundation of the grant of power to the executor to take possession of the estate and the charge of administration; it is, in that case, the long settled practice of courts of probate to require that the witnesses to wills should be examined as to the fact of the sanity of the testator, before the will is established. Its object is, that if it appears that there is either doubt or suspicion on the question, that doubt may be removed before the estate is placed in the hands of a man who may prove to have no title to it. . . . . That the rule of law, requiring that the attesting witnesses to a will shall be examined in relation to the sanity of the testator, is not founded on the absence of a presumption that the testator is sane, nor on a necessity that the propounder of the will should offer further evidence of the fact of the testator's sanity, is, we think, apparent from the state of the law as to cases where, from their death, or absence from the jurisdiction, the witnesses cannot be produced, or where, from loss of recollection, they are unable to testify. As to these cases, proof of the handwriting of the witnesses, and, in some jurisdictions, of the handwriting of the testator, is competent proof to be submitted to the jury of the due execution of the will. In such cases, there can, of course, be no examination of the witnesses as to the sanity of the testator, and it is nowhere laid down that the party is under any obligation to produce any other evidence upon that point, except the testimony of the attesting witnesses. From the rule of law thus stated, we think that, although the subscribing witnesses, if they can be produced, must be examined in relation to the soundness of the testator's mind, yet the party propounding a will for probate is under no general duty to offer any evidence of the testator's sanity, but may safely rely upon the presumption of the law that all men are sane until some evidence to the contrary is offered." In Thompson v. Kyner, 65 Penn. St. 368, Thompson C. J. says: "It is true, the witnesses to a will, when produced for probate, are asked whether they regarded the testator of sound and disposing mind and memory; but this is form merely, for in case of death, absence, or incapacity of the witnesses to testify, proof of their handwriting satisfies the requirement of the proof of execution." hend that in the cases supposed by Chief Justice Bell, of the death, or absence of the witnesses to the will, or their failure to observe or remember the condition of the testator's mind, it would be entirely safe in Massachusetts, as in New Hamp We appre to be the general condition of the human mind. If, therefore, a will is produced before a jury and its execution proved, and no other evidence is offered, the jury would be properly told that they ought to find for the will. (x2) And if the party opposing the will gives some evidence of incompetency, the jury may nevertheless, if it does not disturb their belief in the competency of the testator, find in favor of the will. And in each case, the shire, for the person propounding the will, in opening his case, to rest upon proof of the due execution of the will and the ordinary presumption of the sanity of the testator; and that no inference to the contrary is to be drawn from the practice of examining the witnesses to the will who are present at the trial as to the soundness of the testator's mind. This would result from the decision of the majority of the court in Baxter v. Abbott, 7 Gray, 71. The proponent of the will has the opening and close of the case. The burden of proving competency is on him. This burden is satisfied by the natural presumption of sanity. The contestant then introduces evidence tending to show incompetency and to rebut this presumption of sanity; and the case is thereupon open to the proponent to furnish such testimony as he may have in denial or explanation of the contestant's case, and in corroboration of his own. Any other practice would require the exercise of an arbitrary discretion on the part of the court to prevent great inconvenience, if not confusion. As to the rule of proceeding in Michigan, see post, 21, note (x8). It may further be observed in this connection, that the mere fact of the attestation of a will by a witness furnishes no presumption of any opinion he may have had, favorable or unfavorable, of the sanity of the testator; and hence the declarations of a deceased subscribing witness, or of one beyond the jurisdiction, tending to show that he thought the testator sane or insane, are incompetent evidence upon the issue of sanity; Baxter v. Abbott, 7 Gray, 71; Boardman v. Woodman, 47 N. H. 120, 135; Thompson v. Kyner, 65 Penn. St. 139; Stobart v. Dryden, 1 M. & W. 615 ' Williams v. Robinson, 42 Vt. 664, 665; and hence also, there is no presumption of capacity arising from the mere proof of attestation, to aid the ordinary presumption of the sanity of the testator. The cases upon this point are not entirely harmonious. See post, 352, note (g); Townshend v. Townshend, 9 Gill, 506; Harden v. Hays, 9 Penn. St. 151; Weatherhead v. Sewell, 9 Humph. 272.] (x2) [See per Bell C. J. in Perkins v. Perkins, 39 N. H. 163, 170. In McGinnis v. Kempsey, 27 Mich. 374, Graves J. said: "The force and efficacy of the presumption will vary with cases, yet it can never have much influence when the issue upon the testator's sanity is contested in the usual way, by an appeal to those facts which bear upon it. And whatever force may be due to it in given instances will be owing, not to its intrinsic weight as a distinct item of proof, but to its operation in some degree, more or less, in rendering the circumstances adduced to prove sanity more persuasive. Whenever the facts given in evidence are such as to leave room for it to have any appreciable influence upon results, it will be entitled to be viewed rather as a property of proponent's proofs, than as something apart, and then it will not fail to be recognized by the good sense of the jury, in its tendency to strengthen the other evidence favoring sanity. The efficacy of the presumption, when it has any in contested issues, can never be predetermined, nor can any rule about it be safely laid down, and the experience and general knowledge of the triers may be trusted to consider and estimate it rightly whenever occasions make the inquiry need |