18. But in some of the states, where the courts appear to have taken the correct view of the mode of proving the will, very much as the matter is stated by Chief Justice Tindal,24 that the party propounding the will is not obliged to examine the witnesses, in the first instance, beyond the fact of execution, and may then wait till some impeachment of the instrument is attempted by counter proof, they seem to have fallen into the delusion that this will change the entire burden of proof, and allow the party alleging want of capacity to go forward and open and close the case.25

19. And some of the states have gone so far as to say that a new mode of trial supervenes, upon the appeal, from that which is required in the first instance, and that the appellant will, in every instance, go forward and impeach the judgment below, as in the trial of writs of error. The appellant becomes the actor, and assumes the burden of maintaining the issues framed upon his allegations of the invalidity of the will, whether upon the ground of mental incapacity or any other, and will consequently be entitled to open and close the case.26

20. It seems to be regarded as settled law, that one under guardianship, or as the English writers express it, interdicted, is prima facie incompetent to execute a will. But this presumption may be overcome by proof, but the burden of proof on this point rests upon the party offering the will for probate, and of this rule no one can justly complain. And where the chancellor is satisfied that a lunatic, under guardianship, has so far recovered as to be competent to execute his will, he may permit him to do so, under the superintendence of a proper officer of the court, without, in other respects, relieving him from the

"Tatham v. Wright, 2 Russ. & My. 1.

25

Chandler v. Ferris, 1 Harrington, 460, 461; other cases reported in note to

this case just cited.

"Southerlin v. M'Kinney, Rice, 35; Tillman v. Hatcher, Rice, 271.

* Stone v. Damon, 12 Mass. 488; Breed v. Pratt, 18 Pick. 115.

control of his committee, or the disability consequent upon the proceeding.28

21. The question in regard to the general burden of proof, and of the legal presumption in regard to the sanity of the testator, where incompetency to execute the will is alleged, on the ground of mental unsoundness at the time of its execution, is largely discussed by a judge of great learning and experience, and who has given this department of the law special attention, in two recent cases, in the State of Massachusetts.29

22. In the former of these cases, it was decided by the court, that the burden of proving the sanity of the testator, under the Massachusetts statute, is upon him who offers the will for probate; and does not shift upon evidence of his sanity being given by the subscribing witnesses. The authorities in the State of Massachusetts and some others, are here very carefully examined.80

28 The matter of Burr, 2 Barb. Ch. 208.

29 Crowninshield v. Crowninshield, 2 Gray, 524; Baxter v. Abbott, 7 Gray, 71; in both of which cases the opinions were delivered by Mr. Justice Thomas. 30 In the hearing of the case of Barry v. Butlin, 1 Curteis, 638, on appeal before the Judicial Committee of the Privy Council, Mr. Baron Parke, in pronouncing the judgment, said: "The rules of law, according to which cases of this nature are to be decided, do not admit of any dispute, so far as they are necessary to the determination of the present appeal: and they have been acquiesced in on both sides. These rules are two, the first, that the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator."

Mr. Justice Thomas places some stress upon the requirements of the Massachusetts statute in providing that " every person of full age and sound mind" may make a will, as if the requisites of "full age and sound mind" were of the nature of conditions precedent in the testator, to enable him to execute a will. But it is questionable whether this form of enactment was intended, or is fairly entitled to have any such effect. This enactment, which is found in more than one of the American states, although not found in the English statute of Wills of 34 Hen. 8, ch. 5, which does not contain any thing similar, would have been more

23. In the case of Baxter v. Abbott, the subject was further examined by the court, and the conclusion reached, that upon the trial of an issue of the sanity of the testator, upon an appeal from the decree of the probate court allowing a will, in the absence of evidence to the contrary, the legal presumption is in favor of such sanity. From this proposition the learned judge, who delivered the opinion of the court, dissented. We believe the view taken by the majority of the court is that which has commonly prevailed in the American courts.

24. The supposition, that in consequence of the more frequent occurrence of unsound mind in those who attempt to make wills, than in the makers of other instruments, such as bonds, deeds, and simple contracts, it should justify the reversing of the presumption of sanity in the two cases, goes altogether, as it seems to us, upon a misapprehension as to the proper foundation of such presumption. This presumption is one of fact, founded upon the ordinary course of human experience, and to justify reversing the ordinary presumption, when called to apply it to wills, it is not only requisite that it should be more probable there, than in other cases of the execution of contracts, or instruments, but that it should come to be the more common fact, in the execution of wills, that the testator should

to the point, if it had provided that every person of full age, and who is not otherwise disqualified, may make his will. But instead of this, which was really intended, the statute puts the most common disqualification, “ being of unsound mind," for the whole, and adopts the affirmative instead of the negative form of expression. This was all that was intended, doubtless, and the legal effect ought not to be carried beyond this. And it will be noticed, that if this argument proves any thing, it proves too much. For the statute, as much requires the testator to be twenty-one years of age, as it does that he be of sound mind; and no one can claim that it was ever required of those who offer the will for probate, to put in positive proof of the age of the testator, until that question is raised by the contestants. Reason would seem to indicate, sufficiently, that a similar course should be pursued in regard to other objections to the competency of the testator.

be found, upon scrutiny, mentally incompetent, and this will not be claimed by any one.

25. This question has been discussed to some extent in the State of New York. But it does not appear that any distinction has been made there between wills and other instruments, in regard to the burden of proof, where it is alleged that the testator was of unsound mind. The question arose in an early ,31 and the proposition in regard to the burden of proof, is thus stated by Van Ness, J., in general terms, as applicable to every species of contract, or instrument: "In all cases where the act of the party is sought to be avoided on the ground of his mental imbecility, the proof of the fact lies upon him who alleges it, and until the contrary appears, sanity is to be presumed." 32

case,

31 Jackson v. Van Dusen, 5 Johns. 144, 158.

The learned judge here refers to the ordinary authorities upon the general question of proving mental unsoundness. Swinb. 45, pt. 2, § 3, pl. 4. Every person is presumed to be of perfect mind and memory, unless the contrary be proved." "If it be asked wherefore, then, is that usual clause (of perfect mind and memory) so duly observed in every testament, if he that doth prefer the will be not charged with the proof thereof? It may be answered, that that which is notorious is to be alleged, not proved. And so this being accounted notorious (because where the contrary appeareth not the law presumeth it), it need not be proved." This seems to us placing the question precisely upon the basis of principle. And we cannot but feel, that all the apparent confusion in the matter, has arisen from the modern gloss which has been incorporated with the old rule, that the party propounding the will must adduce some proof of the testator's sanity at the time of executing the will, which, with all due submission, we venture to affirm, is either a fallacy, or else it is the expression of a principle too refined for our comprehension. But no man's comprehension can be so far blunted, that he will not be able to perceive the incongruity of requiring a party to give positive proof of the existence of a fact, which the law presumes, in the absence of all proof. We cannot forbear to say, that it seems to us, that many of the recent commentators, upon this question, might be able to comprehend its real point more justly, by returning to the ancient ways, propounded by Swinburne and writers of that date. At whatever date this modern rule of requiring the executor to inquire of the witnesses to the will, in regard to the sanity of the testator, may have originated, it is certain, that it is a departure from the ancient

This rule seems always to have been acted upon in this state, with the universally received qualification, that after it is clearly. established that the testator had been laboring under settled mental incapacity for a considerable time, not long preceding the time of executing the instrument in question, the weight of proof is thrown upon the party setting up the will, to show that such mental incapacity had ceased at the time the will was executed.33

26. The question has arisen in the Surrogate Court in the city of New York, several times, and seems to have been disposed of by the learned judge in a similar manner. The rule in Allen v. The Public Administrator has been already stated, from which it seems the rule is clearly established in that court, that the burden of proving insanity, at the particular time of the testamentary act, rests upon the contestants, and that this is the subject of affirmative proof, and not of surmise and suspicion.

27. This subject was again considered by the learned surrogate, in Gombault v. The Public Administrator,35 where it was decided, that a will executed near the period of the unquestioned mental incapacity of the testator, should be carefully scrutinized, and diligently compared with the known purposes of the

foundations, and equally from principle, and a return to that simple mode of stating the rule, would relieve the matter of much of its apparent embarrassment and confusion. The learned judge here cites, in addition to Swinburne, many of the early elementary writers upon wills, and Tucker v. Phipps, 3 Atk. 361; Attorney General v. Parnther, 3 Brown, C. C. 443; White v. Wilson, 13 Vesey, 87, in all which the general rule is asserted, without qualification, that the party alleging insanity assumes the burden of proof.

1 Pet. C. C. 163; Clark v. Fisher, 1 Paige, 171; Bogardus v. Clark, 1 Edw. 266; s. c. 4 Paige, 623; Clarke v. Sawyer, 3 Sandf. Ch. 351; s. c. 2 Barb. Ch. 411; s. c. 2 Comst. 498. Many of these cases, finally, turned upon technical grounds.

1 Bradf. Sur. Rep. 378; ante, n. 2.

4 Bradf. Sur. Rep. 226.