17. Married women having the right to dispose of estate under a power, may do so, in the American states, even where the general testamentary power is denied them.25 And where a married woman has power, by marriage settlement, or any other valid contract, to dispose of her estate, by will, or testamentary appointment, she can only do so by an instrument of that particular character, and it must be proved as a will, in the appropriate probate jurisdiction, before it can have any valid operation.26 And where, by antenuptial agreement, property is appropriated to the sole and separate use of a married woman, she may dispose of the same by will, although no such power is expressly given by the agreement.27 18. A feme covert may execute, by a will in favor of her husband, a power given or reserved to her, while sole, over her real estate. And where the wife, before marriage, entered into an agreement with her intended husband, that she should have the power, during coverture, to dispose of her real estate by will, and she afterwards devised the whole of her estate to her husband, this was held a valid disposition of her estate in equity, and the heirs at law were decreed, to convey the legal estate to the devisee.28 19. The evidence of the husband's assent may be implied from the will being in his handwriting.29 And evidence that 25 Heath v. Withington, 6 Cush. 497; 4 Kent, Comm. 506; Osgood v. Breed, Mass. 525, 530; West v. West, 10 S. & R. 446; Wagner v. Ellis, 7 Barr, 411; Wagner's Estate, 2 Ashmead, 448; Lancaster v. Dolan, 1 Rawle, 231;. Van Wert v. Benedict, 1 Bradf. Sur. Rep. 114. "Heath v. Withington, 6 Cush. 497, 500; Osgood v. Breed, 12 Mass. 533, 534 ; Picquet v. Swan, 4 Mason, 461, 462; Newburyport Bank v. Stone, 13 Pick. 420; Holman v. Perry, 4 Met. 492, 496, 498. "Michael v. Baker, 12 Md. 158. The law will not presume the continuance of coverture, in the case of a woman once married, where she assumes to dispose of property by will, which once belonged to her husband, and where the contestants raise no such question in the probate court. Fatheree v. Lawrence, 33 Miss. 585. 28 Bradish v. Gibbs, 3 Johns. Ch. 523, 536. Grimke v. Grimke, 1 Dessaus. 366; Smelie v. Reynolds, 2 id. 66. the husband agreed the wife should dispose of the property she had before marriage, by will, both before and during the coverture; and that he made no objection to the proof of the will, and that he pointed out the articles, at the time of the inventory, and interposed no objection to the executor's taking them, was held competent evidence of his consent to the will.30 20. A married woman, being desirous of making a disposition of her real estate, to take effect after her decease, united with her husband in the execution of a deed of the same to a trustee, authorizing him to make a sale thereof, and out of the proceeds to pay certain sums to particular individuals, and the remainder to her legal representatives. The husband received the deed, after its execution, upon his express promise to deliver it to the grantee, at his wife's decease, if that should occur before his own, which being the fact, it was held that the title to such estate vested in the grantee, and that a court of equity will decree the delivery of the deed to him.31 . SECTION IV. PERSONS NON COMPOS MENTIS, OR OF UNSOUND MIND. · PROCEDURE. 1. In contested cases of probate the burden of proof rests on the executor, or party claiming under the will. 2. There is some apparent conflict in the opinions expressed upon this point. 3. But this results from not carefully observing the occasion of such opinions. 4. The burden of proof of insanity is upon the party alleging it. 5 and n. 4. The reason of the rule further discussed and explained. 6. Lord Hardwicke's opinion in Wallis v, Hodgeson. 7. The courts of equity send such issues to the common-law courts and direct the mode of trial. 8. This point is learnedly discussed in Tatham v. Wright. 30 Cutter v. Butler, 5 Foster, 343. 9. Opinion of Chief Justice Tindal upon the question. 10. Important distinction whether the devisee is plaintiff or defendant. 11. The ultimate fact to be sought is the competency of the testator to do the act. 12 and n. 15. The extent, and mode of giving evidence of testator's sanity, in opening. 13. The presumption of sanity must have its proper weight in the case. 14. The rule in Maine, as stated by Ch. J. Whitman, the same. 15 and n. 21. The strict meaning of onus probandi as defined by Baron Parke. 16. There seems to be no reason why the executor should first give proof of sanity. 17. The rule as stated in Connecticut, seems to require this. 18. In other states, where this is not required, the onus probandi is shifted, during the trial. 19. Some of the states require the appellant to go forward in the case. 20. Where the will of one under guardianship is offered for probate, the burden of proof is shifted, with great propriety. 21. The subject of the general onus probandi discussed by Mr. Justice Thomas.. 22. Clearly decided, in Crowninshield v. Crowninshield, that it rests on the executor. 23. But in a later case, it is held the burden of proving insanity rests upon the party alleging that fact. 24. To justify a different presumption in regard to sanity, in wills from deeds, it should appear that the majority of the two classes of cases differed. 25. In New York, the courts have held the burden of proof, as to wills and other instruments, the same. n. 32. The rule, as laid down in Swinburne, approved. 26. The question as determined by the surrogate of New York. 27. Testamentary capacity, during a lucid interval, should be clearly established. 28. The same rule obtains in the State of Alabama. 29. And in many of the other states. 30. The mode of submitting questions of the valid execution of wills to juries in Pennsylvania. 31. The courts here hold that prima facie evidence of due execution throws the onus on defendant. § 5. 1. THE formal burden of proof, in trials directly upon the probate of the will, whether in the court of probate, or upon appeal, is upon the executor, or those who set up the will, in whatever form the trial is required to be conducted. This is in analogy to proceedings upon other instruments, or contracts, 1 In some of the states, where a will is contested, the case proceeds in the name of the executor, and in others, an administrator pendente lite is appointed by the Probate Court. which are contested, either upon the ground of want of execution, or want of capacity in the person contracting, or of fraud in procuring the contract. In all of which cases the formal burden of proof being upon the party setting up the instrument, he is allowed to go forward in the proof, and in the argument.2 2. But it is undoubtedly true, that some apparent confusion exists in regard to the declarations of different judges, as to * 1 Greenleaf's Evidence, sec. 77; Buckminster v. Perry, 4 Mass. 593; Brooks v. Barrett, 7 Pick. 94; Comstock v. Hadlyme, 8 Conn. 254; Gerrish v. Nason, 22 Maine, 438; Barry v. Butlin, 1 Curteis, Eccl. 637; Harris v. Ingledew, 3 P. Wms. 91, 93; Wallis v. Hodgeson, 2 Atkins, 56; Harrington v. Rowan, 3 Wash. C. C. 580; Ware v. Ware, 8 Greenleaf, 42; Phelps v. Hartwell, 1 Mass. 71. But the contrary rule of practice has prevailed to some extent, in different states. Thus, in Chandler v. Ferris, 1 Harrington (Del.), 454, 460, it is said, those who affirm insanity but do not deny the execution of the will, open and close. The same rule is also declared, in Bell v. Buckmaster, 1 Harrington, 460, in note, and in Cubbage v. Cubbage, 1 Harrington, 461, in n. And in Southerlin v. M'Kinney, Rice (S. C.), 35, it is said, the appellants from the Ordinary, in case of a will, are actors, and open and close. And in Tillman v. Hatcher, Rice, 271, it is said, the appellant opens and closes, for upon him is the onus probandi. But these last seem to be exceptional cases. The general rule of practice, in regard to the party going forward in the proof, and the argument, is unquestionably as stated in the text. In Duffield v. Robeson, 2 Harrington, 375, it is said the law always presumes sanity, until settled insanity be proved, and this disability, when once established, is presumed to have continued till the making of the will. See also, Jackson v. Van Dusen, 5 Johns. 144; Lessee of Hoge v. Fisher, 1 Pet. C. C. 163. If the general competency of the testator be not questioned, the burden of proving, that at the particular time the will was executed he labored under any delusion, aberration, or weakness of mind, rests upon the contestant, and whether such weakened capacity existed at the time, and whether the will was procured by artifice, influence, or control of others, is the subject of affirmative proof, and not of surmise and suspicion. Allen v. The Public Administrator, 1 Bradf. Sur. Rep. 378. If the testator was of unsound mind just before making the will, it throws the burden of proof upon those who claim under the will to show sanity restored. Halley v. Webster, 8 Shepley, 461. which party assumes the burden of proof, in trials, where the incapacity of the testator is alleged. 3. This has resulted chiefly, we think, from not sufficiently bearing in mind the purpose and occasion of such declarations. In most of the cases where it has been argued, that the burden of proof, where insanity is alleged, is upon those who claim to establish the will, it has been upon the ground already stated. And generally, it is presumed, there was no purpose of declaring a different rule, in regard to the presumption of sanity in case of a will, from that which is universally recognized in regard to deeds and simple contracts; although it must be admitted there is much in the books, coming from judges of eminence and learning, which might fairly be made to bear this construction, and which might possibly have been so intended by its authors, in some instances. 4. But these dicta being made, for a different purpose, diverso intuitu, it should not be so applied, when it is found, that there is no just ground for any such distinction. And it must be ad⚫mitted, we think, upon careful examination of all the cases, that the burden of the proof of insanity, in the case of a will, equally with that of a deed or other contract, is upon the party alleging it, and who claims the benefit of the fact, when established.3 5. This is one of the early cases, which has been relied upon to show, that where proof of insanity is offered to impeach the validity of a will, the burden of proof falls upon the executor, or *the party setting up the will. But all which is said here, upon the question of the burden of proof, is, that "the proof of a will. is attended with more solemnity than that of a deed; the former being supposed to be made when the testator is in extremis; and therefore, in equity, it is necessary to prove the sanity, which is always presumed in case of the latter." 4 Harris v. Ingledew, 3 Peere Wms. 91. This we believe has reference to the practice of proving the mere fact of the execution of a writing, in courts of chancery, by witnesses examined, vive voce, |