1283. Witness who is a devisee and who would be entitled to share of testator's estate if no will, entitled to share to amount of devisee. 1284. Will made out of this State. 1285. Will not duly executed, void. 1286. Subsequent change of domicile. 1287. Republication by codicil. 1288. Nuncupative will, how to be executed. 1289. Requisites of a valid nuncupative will. 1290. Proof of nuncupative wills. 1291. Probate of nuncupative wills. 1292. Written will, how revoked. 1293. Evidence of revocation. 1294. Revocation by obliteration on face of will. 1295. Revocation of duplicate. 1296. Revocation by subsequent will. 1297. Antecedent not revived by revocation of subsequent will. 1298. Revocation by marriage and birth of issue. 1299. Effect of marriage of a man on his will. 1300. Effect of a marriage of a woman on her will. 1301. Contract of sale not a revocation. 1302. Mortgage not a revocation of will. 1305. Revocation of codicils. 1306. Afterborn child, unprovided for, to succeed. 1307. Children or issue of children of testator unprovided for by his will. 1308. Share of afterborn child, out of what part of estate to be paid. 1310. Death of devisee, being relation of testator, in lifetime of 1311. Devises of land, how construed. 1312. Will to pass rights acquired after the making thereof. SEC. 1270. (21.) Every person over the age of eighteen who may years, of sound mind, may, by last will, dispose of all his make a will. estate, real and personal, and such estate not disposed of by will is subject to succession, as provided for by Title VII of this part, as the estate of an intestate, being chargeable in both cases with the payment of all the decedent's debts, as provided in the code of civil procedure. (a) Statutes of 1850, p. 177, § 1. Deaf, dumb and blind person, competency of -The law does not prohibit deaf, dumb or blind persons from making a will. Defects of the senses do not incapacitate, if the testator possesses sufficient mind to perform a valid testamentary act. Wier v. Fitzgerald, 2 Brad. 42. Insane persons, competency of.-Where the contestants to the probate to the will of T., raised as an issue in the probate court, among others that T. was not of a sound and disposing mind at the time the will was made, which being certified to, the district court, in conformity with sections twenty and two hundred and ninety-four of the probate act for trial, was returned to the probate court, coupled with the evidence taken at the trial in the district court, but it appeared that the jury did not find upon the issue either way, whereupon the probate court, upon said evidence, assumed to determine the issue against contestants, and admitted the will to probate; Held, first, that the district court had no jurisdiction to try said issue; second, that the probate court had no authority to determine the same upon evidence, which had been taken at the trial in the district court, and third, that said issue was material, and it was error to admit the will to probate, without a lawful determination of the same. Estate of Tomlinson, 35 Cal. 509. See 1 Redf. on Wills, 124, 127, 160, and cases there cited; 1 Cal. 488. If unsoundness of mind is proved to exist on the day that a will is made, or on the day the instructions are given, it is permissible to trace the unsoundness both before and after the period, up to the very moment of the decease of the alleged testator. Pidcock v. Potter, Sup. Court, Penn. May, 1871; Pac. Law Rep., vol. II, p. 53. In Pennsylvania, it has always been the rule that after a non-professional witness has stated the facts upon which his opinion is founded, he is permitted to state his opinion as to the sanity or insanity of the testator. lbid. (a) NOTE.-(From Civil Code.)-Section 14, Subdivision 22, the word "will" includes codicils. Monomaniac compet Failure of memory.-Where no failure of memory was exhibited, at the time the will was executed, and the testator is not shown to have had any disease of the brain, which permanently impaired his mental faculties: Held, that the facts of his old age, declining health, and his failure to recollect or understand certain transactions, do not prove a want of mental capacity to make a will. Clarke v. Davis, 1 Redf. Sur. Rep. 249. A statement made by the testator after the execution of a codicil, to a daughter whom he had therein disinherited, that he had given her the sum of $600, and no such sum appeared in the will: Held, not sufficient to prove a want of capacity. The capacity of a testator to make a will must be determined by what happened at its execution, and not what afterwards occurred. Ibid. Intemperance and occasional wildness.-Evidence of habits of intemperance, and occasional fits of wildness, though indicating an impaired mind: Held, not sufficient to establish a total and permanent want of testamentary incapacity. Julke v. Adam, 1 Redf. Sur. Rep. 454. Burden of proof of mental incapacity, upon whom rests.-Properly understood the burden of proving mental competency is upon the party offering the will, although the presumption of competency may be sufficient in the absence of evidence to the contrary. See Morrison v. Smith, 3 Bradf. 209; Parish Will Case, 25 N. Y. 9; 2 Gray, 524; 7 Gray, 71; 1 Curteis, 638; 8 Conn. 261; 22 Me. 438; 10 Ga. 324; 3 Md. 491; 13 Ill. 15. Idiots, competency of.—As to the competency of idiots to make wills, see 1 Redf. on Wills, 59; 21 Verm. 168; 14 Eng. L. & Eq. 590. Lunatics, when competent.-As to the competency of lunatics to make wills; see 1 Redf. on Wills, 67; 18 Pick. 115. Lucid intervals.-Lunatics may execute wills during lucid intervals. 24 Barb. 583; 14 Penn. St. Rep. 417; 1 Swabe & Trist, 239; 5 Richards, 212; 3 Brown's Ch. 444; Gombault v. Public Adm'r, 4 Bradf. 226. Confirmed drunkards, competency of.-As to the competency of confirmed drunkards, see 2 Yeates, 38; 1 Dallas, 94; 22 Wendell, 526; 2 Green Ch. 604; 13 Smith, 9. The will of an habitual drunkard is voidable, not void. Peck v. Cary, 27 N. Y. 9, affirming S. C.; 38 Barb. 77; Lewis v. Jones, 50 Barb. 645; Gardiner v. Gardiner, 34 N. Y. 155; Tyler v. Gardiner, 35 N. Y. 559, 592; Doe v. Clark, 1 Adams, 279; S. C. 3 Adams, 79; S. C. 5 Russ, 163. Insanity at time other than that of making will.-As to the effect of insanity at a time other than that of making the will, see Matter of Taylor, 1 Edm. 375. Eccentricities, effect of--As to the effect of eccentricities on will, see 3 Curteis, 678; 29 Eng. L. & Eq. 38; 3 Humph. 278; Thompson ▼ Ouimbur Bradf. 446. Page 278. 1271 of said Code is repealed. (a)NOTE.-(From Civil Code.)-SEC. 40. After his incapacity has been judicially deter mined, a person of unsound mind can make no conveyance or other contract, nor delegate any power, nor waive any right, until his restoration to capacity is judicially determined. But if actually restored to capacity, he may make a will, though his restoration is not thus determined. See Taylor's Med. Jur. 656, 657; Flores v. Flores, 24 Ala. 241; Jenckes v. Smithfield, 2 R. I. 255; Townsend v. Townsend, 7 Gill. 10; Stanton v. Weatherwax, 16 Barb. 259; Waring v. Waring, 6 Moore's P. C. C. 341. Test in cases of insane delusions.--A testator was subject to two delusions, one that a man who had been dead for some years, pursued and molested him, and the other that he was pursued by evil spirits, whom he believed to be visibly present. It was admitted that at times he was so insane as to be incapable of making a will: Held, that the existence of a delusion compatible with the retention of the general powers and faculties of the mind, will not be sufficient to overthrow the will unless it were such as was calculated to influence the testator in making it. Banks v. Goodfellow, L. R. (5 Q. B.) 549. Delirium tremens.-An unequal will made by a decedent who for some time before her death had been subject to attacks of delirium tremens, and at the time of making the will was under delusions likely to affect her testamentary provisions-rejected. Waters v. Cullen, 2 Bradf. Sur. 354. Monomania.--As to monomonia, or partial insanity, and its effects on competency of testator, see 13 Ves. 88; 5 Russ. 163; 16 Barb, 259; 1 Add. 279; 6 Ga. 324; 24 Ga. 640; 24 Ala. 241; 27 Conn. 192; Doe v. Clark, 1 Adams, 279; S. C. 3 Adams, 79; S. C. 5 Russ, 163. Insane delusions.-See further as to insane delusions, American Seamen's Friends Society v. Hopper, 33 N. Y. 619, affirming S. C. 43 Barb. 625; Gamble v. Gamble, 39 Barb. 373; see, also, Clarke v. Davis, 1 Redf. Sur. 249, cited under section 1270, ante. thereof pro fraud. SEC. 1272. A will or part of a will procured to be made will or part by duress, menace, fraud or undue influence, may be denied cured by probate; and a revocation, procured by the same means, may be declared void. N. Y. C. C., § 544. See 1 Redf. on Wills, 511 and 512, and cases cited there. Will admitted.-A will contested as having been procured by undue influence, was admitted to probate on proof of the origination of the testamentary act by the decedent, its subsequent recognition, and the conformity of its provisions to her intentions and declarations indicated to disinterested parties. Wightman v. Stoddard, 3 Bradf. 393. Incapacity, what constitutes.--An abnormal condition of mind is never presumed when a testator makes a will, unless a previous aberration be shown of such a nature as may admit of a presumption of recurring unsoundness at any time. Each case, as to incapacity, is to a great extent to be tested by its own facts and circumstances. Old age, failure of memory and habitual drunkenness will not per se constitute incapacity to make a will. The test of capacity is that the testator's mind and memory were sufficiently sound to enable him to know and understand the business in which he was engaged at the time he executed his will. Weakness alone will not invalidate a will, if there be mind and memory enough to understand the subject in hand and to direct the disposition of the property intelligently. The test of this is to be of the time when the will is made, including some latitude of proof before and immediately, as distinguished from remotely, after. Undue influence may be either through threats or fraud, and must destroy the free agency of the testator at the time when the instrument is made. Declarations as to the incapacity of the testator by a party sustaining the will, were properly rejected, when the offer was made without limitation as to time, place and circumstances of making them. Proof is admissible to rebut a material presumption. As a general proposition less capacity is sufficient to make a valid will than to transact ordinary business. Thompson v. Kyner, 24 P. F. Smith's (Penn.) Rep. 331. The will of a competent testator stands as the reason for the act, and requires no other evidence to support it than proof of due execution according to the ceremonies prescribed by law. Delafield v. Parish, 1 Redf. Sur. Rep. 1. Relations of confidence and influence.-Profiting by will.—But a different degree and class of proof are required where the will has been made by the intervention of one profiting by its provisions, and occupying relations of confidence and influence, towards a testator of weak or doubtful capacity. For example, where the parties are in the relation of guardian and ward, principal and agent, trustee and cestui que trust, attorney and client, the court is exact and scrutinizing in its requisition of the plainest evidence of volition and capacity. Where such relations of confidence exist, and the party frames the instrument for his own advantage and benefit, every presumption arises against the transaction. In such a case it is not necessary to prove fraud and circumvention, but the proponent must remove the suspicion by clear and satisfactory proof. The principle involved in this rule must be considered as relating rather to the quantum of evidence required in such cases, than to an actual conclusion of fraud in fact. Ibid. What evidence necessary.—And, in its application, it requires from the proponent evidence outside of the document itself that the contents were understood by the decedent, and were conformable to his real wishes; that the act was the result of free volition, the actual will (voluntas ipsa) of a competent mind; and if from any cause such proof fail, probate must be denied. Ibid. Where the testator made with due deliberation, and legal advice, his will, in the year 1843, whereby, after providing for his wife, and making other legacies, he made his two brothers residuary legatees, the residue at the time being small; and subsequently in 1819, when such residue had increased very largely, and he had made no change in the will, was seized with apoplexy, and after a partial recovery, and the exhibition of some degree of intelligence, he made a codicil in favor of his wife, proved to have been conformable in a measure, to intentions expressed previous to his illness: Held, that such codicil should be admitted to probate. Ibid. Subsequent codicils while mind enfeebled.—Held, also, in respect to subsequent codicils, not supported by any extrinsic evidence of intention prior to his illness, which were made in favor of his wife while he was in her charge, his faculties were enfeebled and impaired, and his power of communication and mental manifestation, greatly affected, that the proof in support of such codicils was deficient, and they should be denied probate. Ibid. What evidence may be admitted, or is necessary.-Undue influence in procuring a will may not only be proved by direct evidence of importunity, or the practice of arts upon the decedent, but may be presumed from facts; which throws upon the party propounding it for probate, the burden of |