the only one interested in establishing the will, are not admissible to show the incapacity of the testator.51

35. In a late case 52 before the New York Court of Appeals, Davies, J., said: "In regard to the effect of a will being written or procured by one interested in its provisions, the maxim, qui se scripsit hæredem, has imposed, by law, an additional burden on those claiming to establish a will under circumstances which call for the application of that rule; and the court, in such a case, justly requires proof of a more clear and satisfactory character. Such a condition is exhibited by the testimony in the present case. The two codicils under consideration were exclusively for the benefit of Mrs. Parish, with the exception of the charitable gifts, and although they were not actually written by her, yet they were drawn up at her suggestion, upon her procurement, and by counsel employed by her. She prepared and gave the instructions for them, and in judgment of law they must be regarded as written by herself: Facit per alium, facit per se.

36. The rule which should govern the court in such a case,

51

Boyd v. Eby, 8 Watts, 66; Dotts v. Fetzer, 9 Barr, 88; Brown v. Moore, 6 Yerger, 272; Roberts v. Trawick, 13 Ala. 68; Blakey v. Blakey, 33 id. 611. 52 Parish's Will, June, 1862. This subject is discussed, and the cases commented upon, in Baker v. Batt, 2 Moore, P. C. C. 317. See also, Duffield v. Robeson, 2 Harring. 384; Tomkins v. Tomkins, 1 Bailey, 94; Durling v. Loveland, 2 Curteis, 225; Greville v. Tylee, 7 Moore, P. C. C. 320; s. c. 24 Eng. L. & Eq. 53. It is here held, that where a will is prepared by a medical man in attendance on a patient, by which the bulk of the estate is given to him, to the exclusion of the near relatives, the court will view his conduct with the utmost jealousy.

So also, where one under guardianship, as non compos, made a will in favor of his guardian, making him executor and principal devisee, it was held, that it must appear, beyond a reasonable doubt, that the testator had both such mental capacity, and such freedom of will and action, as are requisite to render a will legally valid. Breed v. Pratt, 18 Pick. 115; Crispell v. Dubois, 4 Barb. 393; Beall v. Mann, 5 Ga. 456; Newhouse v. Godwin, 17 Barb. 236.

is enunciated in Barry v. Butlin.53 It is there said, that “if a party writes or prepares a will under which he takes a benefit, that is a circumstance which ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favor of which it ought not to pronounce, unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased." By the Civil Law, such a will was rendered void, and it may be well doubted, whether we have acted wisely in departing from its just and rational provisions in this respect; and it is well said by the court, in Crispell v. Dubois, that, though this rule of the Civil Law has not been adopted in our courts, yet they do demand satisfactory proof in such cases, that the party, executing the will, clearly understood and freely intended to make that disposition of his property, which the instrument purports to direct. The doctrine is well stated in Paske v. Ollatt,55 that "where the person, who prepares the instrument and conducts the execution of it, is himself an interested person, propriety and delicacy would infer that he should not conduct the transaction.'"

54

63 1 Curteis, Eccl. Rep. 637.

* 4 Barb. 398; Hughes v. Meredith, 24 Ga. 325.

52 Phillim. 323.

CHAPTER V.

EFFECT OF DRUNKENNESS UPON TESTAMENTARY CAPACITY.

1. Drunkenness, producing oblivion, incapacitates the testator.

2. Courts of equity do not interfere on the ground of drunkenness merely.

3. The extent to which drunkenness must be carried to create testamentary incapacity.

4, and 5. Cases illustrating the effect of drunkenness upon mental capacity.

6. There is no presumption of the continuance of this disability.

7. The burden of proof is upon the contestants. Late English case.

§ 16. 1. It seems now to be conceded, that intoxication, to the extent of producing mental oblivion, while that state continues, does deprive the party of the ability to enter into contracts, or execute a valid will.1 In an important case, the rule of disability from drunkenness, is thus laid down: "A contract entered into when the party is in a state of intoxication, so as to deprive him of the exercise of his understanding, is voidable."

2. The general rule in the courts of equity as to contracts, has

1 Swinb. pt. 2, sec. 6. "He that is overcome with drink, during the time of his drunkenness, is compared to a madman, and therefore if he make his testament at that time, it is void in law. Which is to be understood, when he is so excessively drunk, that he is utterly deprived of the use of reason and understanding. Otherwise, if he be not clean spent, albeit, his understanding is obscured, and his memory troubled; yet he may make his testament, being in that case." Ib. Arey v. Hill, 2 Add. 206; Billinghurst v. Vickers, 1 Phillim. 191; Wheeler v. Alderson, 3 Hagg. 602.

2 Barrett v. Buxton, 2 Aik. 167. The opinion of Mr. Justice Prentiss in this case contains a full exposition of the law upon the subject.

been already stated, and a similar rule applies to wills, that where there is no appearance of artifice in procuring the will, and it is reasonable in itself, it shall stand. The cases wherein this general question is discussed are numerous, and will be found satisfactorily digested in the elementary treatises, and in the opinion of Mr. Justice Prentiss, already referred to. The courts of equity leave the parties to their remedies and liabilities at law, unless where there has been virtual fraud in obtaining the contract; and the law excuses the party from his contract, on the ground of intoxication, when it is so excessive as to deprive him of all proper knowledge and understanding of the trans

action.

3. An eminent English writer upon medical jurisprudence, thus expresses himself, upon this subject: "Any deed or agreement, made by a party when drunk, is not invalidated by our law, except in the case where the intoxication has proceeded so far, as to deprive him of all consciousness of what he is doing."-"The law appears to have created two states in drunkenness; one, in which it has proceeded but a slight extent, and it is considered there is still a power of rational consent; another, in which it has proceeded so far that there is no consciousness of the transaction, and therefore the party can give no rational consent." And Pothier adopts very nearly the same view. "Drunkenness," he says, "when it goes so far as absolutely to destroy the reason, renders a person, so long as it continues, incapable of contracting, since it renders him incapable of consent."

6

4. It is not important to discuss the effect of drunkenness upon mental capacity to contract, or execute a valid will, to any

1 Parsons on Cont. 310; 1 Story, Eq. Jur. §§ 231, 232; W. Story on Cont.

4

§ 27.

'Taylor, Med. Jur. 676.

Obligations, n. 49.

great extent. Its effect in producing such disability is precisely the same as that of any other mental obscuration, from whatever cause. This is differently expressed in different cases, but the result is much the same in all. In Starret v. Douglass, it is said, that drunkenness in the testator, of itself, is no legal exception to the validity of a will, but where, from habitual intoxication, a man's senses were besotted, and his understanding gone, he could make no will. We do not apprehend it could make any difference, in regard to the capacity to execute a will, whether the understanding were permanently gone, from habitual inebriety, or temporarily only, from an occasional, or accidental, fit of drunkenness.

5. In Hight v. Wilson, it was held,8 that habitual drunkenness is not, of itself, sufficient to invalidate a will; and in Temple v. Temple, that the frequent and injurious use of ardent spirits, with lucid or sober intervals, does not incapacitate the testator. This will depend, of course, upon the state of the mind, at the time of executing the will.

72 Yeates, 48; Duffield v. Robeson, 2 Harring. 375, 383; Harrington, J., here says: "Drunkenness itself is a species of insanity, and might invalidate a will made during the drunken fit." It is here held, that delirium tremens, produced by drunkenness, is the same as insanity produced in any other mode, as to a testamentary incapacity, of which there can be no question.

8 1 Dallas, 94.

9 1 Hen. & Munf. 476. In Duffield v. Robeson, 2 Harring. 375, 383, 384, Harrington, J., said: "Long continued habits of intemperance may gradually impair the mind, and destroy the memory, and other faculties, so as to produce insanity of another kind. The form of insanity usually produced by intemperance, is mania a potu, or delirium tremens; which is a raging and decided insanity that cannot be mistaken, temporary in its duration, and when off is followed not merely by a lucid interval, but by a permanent restoration to reason." But, adds the learned judge, long-continued indulgence in the use of stimulants to an inordinate degree, may produce 66 permanent fixed insanity," in some temperaments. See also, Black v. Ellis, 3 Hill (S. C.), 68; Harper's Will, 4 Bibb, 244; McSorley v. McSorley, 2 Bradf. Sur. Rep. 188; Waters v. Cullen, ib. 354; ante, § 12.