manner, though not conclusive, is strong evidence of its having been made in a lucid interval. It was also here determined, that, where a person is laboring under an insane delusion, his sanity is to be tested by directing his attention to the subjectmatter of such delusion; but, where a person is afflicted with habitual insanity, unaccompanied with delusions, his sanity is to be tested by his answers to questions, his apparent recollection of past transactions, and his reasoning justly with regard to them, and with regard to the conduct of individuals.

SECTION XIV.

PERSONS UNDER DISABILITIES FROM CRIME, CAPTIVITY, ETC.

1. The long list of disabilities enumerated by Swinburne.

2. These have become obsolete in England except treason and felony.
3. In the United States it never was of any importance as respects wills.
4. Felo de se in England does not forfeit estate, or right to make will.

§ 14 a. 1. If we look into the early treatises on wills,1 we find a formidable array of persons disqualified from making such an instrument. Slaves, villeins, captives, prisoners, traitors, felons, heretics, apostates, manifest usurers, incestuous persons, libellers, suicides, or "wilful killers of themselves," outlawed persons, excommunicated persons, prodigals, he that sweareth not to make a testament, he that is at the very point of death, ecclesiastical persons, and "whether the king may bequeath his kingdome to whom he will."

2. Of this long list of disqualifications, almost all have become obsolete, in England even. The latest edition of Jarman,2 only names traitors and felons. These rest upon the forfeiture of

1 Swinb. pt. 1, § 7 et seq.

2 1 Jarman, 37.

the estate, which is now either abolished or restricted to forfeiture during the life of the offender, in most cases, by statute.3

3. Forfeiture of estate for crimes has either been wholly abolished in the United States, or so much restricted, as to be of such rare occurrence, as not to require discussion here. We have named the subject merely as a matter of interest, in marking the relaxation of penal consequences in modern times.1

4. The question has recently been decided in England, in regard to persons felo de se; that freeholds of inheritance, of which such persons are seized at the time of their death, do not escheat to the crown, but pass to the heir at law; and that where one deceased, after having duly executed her will, and the coroner's jury returned a verdict of felo de se, the will of such person was entitled to probate.

54 Geo. 3, ch. 145. High treason, murder (and accessories to murder before the fact), and petit treason, are excepted from this statute. But the latter offence is since abolished by statute, and the two former are reduced within such narrow limits, practically, as to be of no importance in a general treatise upon wills.

2 Kent, Com. 385, 386.

'Norris v. Chambres, 7 Jur. N. s. 59.

'The Goods of Eliza Bailey, 7 Jur. N. s. 712.

CHAPTER IV.

MENTAL CAPACITY REQUISITE TO EXECUTE A VALID WILL.

1. Old rule that one insane word in a will rendered it void. Now, matter of fact. 2. Wills wanting in natural affection, viewed with suspicion.

3. One, under guardianship, presumed incompetent to execute a will. Rule in equity. The rule stated as it obtains in the American courts, and the English ecclesiastical courts.

4. One may be incompetent to execute a will, and not before considered fit for guardianship.

5. He must know the extent of his property, and the objects of his bounty.

6. Some cases hold mere weakness of mind not sufficient to incapacitate testator. Cases apparently conflicting.

7, 8, and 9. If the mind be not morbidly affected, and comprehends the business, it is sufficient to enable one to execute a valid will.

10. Statement of cases affecting testamentary capacity.

11, and n. 30. Important case in Connecticut, Mr. Justice Ellsworth's opinion. 12. The point of decision in some of the American cases given.

13. The doctrines enunciated in the Parish Will case.

14. Commentary upon the American cases continued.

15. The final result of the review of the cases by Mr. Justice Davies.

16. We can give no better rule than that adopted by Mr. Justice Davies.

n. 45. Review of the case of Stewart v. Lispenard, by Mr. Justice Davies.

17. The question very fairly stated by Swinburne.

18. The real inquiry, in all such cases, is, Whether the instrument propounded for probate, be really the will of the testator, or of some other person, or persons? Whether the act be his, or that of another?

19. If the testator has capacity to give directions for preparing her will, and recollection of those directions at the time of executing it, she is to be regarded as of sound mind.

20. The point well illustrated by a late case in Pennsylvania.

21. One under interdiction presumed incompetent to execute a will.

22. But this presumption may be overcome by counter evidence.

23. But the testimony before the inquest of interdiction not revisable.

§15. THE MENTAL CAPACITY required in the execution of a will, has been necessarily, to some extent, indicated in the pre

ceding chapter in speaking of the different classes of persons, mentally incompetent for such office. But something nore positive is certainly desirable upon so important a subject.

1. It seems to have been a standing rule of the ecclesiastical courts in England, while they held the jurisdiction of the subject, to treat all wills, as prima facie invalid, which were absurd in themselves, or as it was expressed, in the quaint language of some of the early writers, "if there be but one word sounding to folly." But this must be regarded as little more than a presumption of fact, since it is every day's experience, that a sensible man, in the fullest, most unquestionable possession of all his mental powers, sometimes will make the strangest, most unaccountable disposition of his property, without, and indeed contrary to, all supposed motive, to be deduced from any process of fairly conducted a priori reasoning.2

2. And although the English law does not absolutely regard inofficious wills, or those wanting in natural duty and affection, as void, yet it will, in such case, view the execution of such an instrument, with some degree of suspicion and jealousy; so far at least as to require clear proof that it was really executed according to instructions, and with the full concurrence of the testator, and while he was in possession of such a degree of mental soundness, as to be able to comprehend its import.3

1 Swinb. pt. 2, § 3, pl. 16; 1 Wms. Exrs. 34. This rule is not more sweeping than that which was attempted to be established by Lord Brougham, in Waring v. Waring, 6 Moore, P. C. C. 349, that any degree of mental perversion rendered the testamentary act void.

2 Arbery v. Ashe, 1 Hagg. 214. The English law does not admit the querela inofficiosa, of the Roman law, by which all wills which omitted altogether the mention of any of the testator's children, or which disinherited them, without cause, were to be set aside, upon the presumption that the testator was insane, or otherwise incompetent to execute a will. Nor is it requisite that the testator should assign any reason for disinheriting the heir. 2 Bl. Com. 502, 503. Voluntas stet pro ratione.

* Wrench v. Murray, 3 Curteis, 623; Montefiore v. Montefiore, 2 Add. 361, 362; Dew v. Clark, 2 Add. 207, 208; Brogden v. Brown, 2 Add. 449.

And this is especially to be required, where the will is drawn up at the instance, or in the handwriting, of a party to be benefited by it.1

3. In later times, the Court of Chancery in England is accustomed to put persons under commissions of lunacy, in many cases, where they cannot be regarded as absolutely insane; such commissions are applied to cases of imbecility of mind, to the extent of incapacity, whether from disease, age, or habitual intoxication. All that is requisite is, that it should appear that the person is not in a fit condition to have the management of his pecuniary affairs. In Ex parte Cranmer, Lord Chancellor Erskine describes the requisite incapacity to subject one to a commission of lunacy, thus: "The party must be one, whose understanding is defunct,' who has survived the period that Providence has assigned to the stability of his mind." Lord Eldon, in Sherwood v. Sanderson, thus states the rule: it must appear" that the object of the commission is of unsound mind, and incapable of managing his affairs." In all cases, where the person is regarded as a fit subject of a commission of lunacy, he is prima facie incompetent to execute a will, and one so executed, will not commonly be established by the courts, unless its provisions are altogether reasonable and provident, and in accordance with the previously expressed intentions of the party, while of sound mind.

✦ Raworth v. Marriott, 1 Myl. & K. 643. But see Russ v. Chester, 1 Hagg. 227; Martin v. Wotton, 1 Cas. temp. Lee, 130, where such wills are held valid, even in extremis. In Baker v. Batt, 2 Moore, P. C. 317, it is said, a will written by a legatee is not void on that account, but the fact is to be regarded with suspicion. The presumption against the will is fortified by proof of the mental weakness or imbecility of the testator. Vreeland v. McClelland, 1 Bradf. Sur. Rep. 394.

5

Ridgeway v. Darwin, 8 Vesey, 65. Opinion of Lord Chancellor Eldon. 12 Vesey, 445, 452.

719 Vesey, 280, 286. It is here said, by Lord Eldon, that the testimony in such cases should come from medical men.