testator, at a time when he was in the full possession of his faculties. A will made in a lucid interval may be valid; but the same rule, in regard to proof of mental capacity, is observed here, as in cases where the testator was under guardianship at the time of making his will; the burden of proof rests upon the party claiming the existence of such lucid interval, and the execution of the will during its continuance. This is the universal rule upon the subject. We shall recur to this point again, under another head.

36

28. In Alabama it is held, that when a will is contested on the ground of mental incapacity, the burden of proof, in the first instance, rests upon the party alleging such incapacity, because the court presumes sanity until the contrary is shown. But where lunacy is once established, and it is alleged that the testator executed a valid will during a lucid interval, the party alleging such fact must show sanity and competency, at the particular time when the will was made.

29. The same rule, first named, is established in New Jersey.38 And the same rule obtains in Maine. So also in Georgia.40

36 Gombault v. The Pub. Adm'r., 4 Bradf. 226. See also, White v. Driver, 1 Phill. 84; Chambers v. The Queen's Proctor, 2 Curteis, 415.

37 Saxon v. Whitaker, 30 Alabama, 237.

48 Trumbull v. Gibbons, 2 Zab. 117.

"Halley v. Webster, 8 Shep. 461.

40 Griffin v. Griffin, R. M. Charlton, 217. The case of Harrison v. Rowan, 3 Wash. C. C. 580, is sometimes relied upon, as tending to establish the proposition, that where insanity or fraud is alleged, the party maintaining the will must meet even "the suspicion of proof." But such a proposition is here only thrown out by the judge as matter of abundant caution, and not as a legal necessity. This question was very thoroughly considered in the Parish Will case, New York Court of Appeals, June, 1862, upon the point of the general burden of proof in cases of wills, and the following propositions declared, after a careful review of the authorities.

"It seems to us that these cases fully establish the following propositions:

"1. That in all cases the party propounding the will is bound to prove, to

30. This general subject was carefully examined, in a late case in Pennsylvania, and the following propositions declared. The proof of a will consists in evidence of its authentication in due form of law, and that it was the voluntary act of a sound mind; the former question should be determined by the court, as one of law, and the latter by the jury, as one of fact. The issue being on the validity of a codicil, the paper itself

the satisfaction of the court, that the paper in question does declare the will of the deceased, and that the supposed testator was, at the time of making and publishing the document propounded as his will, of sound and disposing mind and

memory.

"2. That this burden is not shifted during the progress of the trial, and is not removed by proof of the factum of the will, and the testamentary competency, by the attesting witnesses, but remains with the party setting up the will.

"3. That if, upon a careful and accurate consideration of all the evidence on both sides, the conscience of the court is not judicially satisfied, that the paper in question does contain the last will of the deceased, the court is bound to pronounce its opinion that the instrument is not entitled to probate.

41

"4. That when it is sought to establish a posterior will, to overthrow a prior one, made by the testator in health, and under circumstances of deliberation and care, and which is free from all suspicion, and when the subsequent will was made in enfeebled health, and in hostility to the provisions of the first one; in such case the prior will is to prevail, unless he who sets up the subsequent one can satisfy the conscience of the court of probate that he has established a will. And the prior will is to prevail also, unless the subsequent one is so proven to speak the testator's intentions, as to leave no doubt that it does speak them." Rees, Adm'r, v. Stillé, 38 Penn. St. 138. The matter of submitting the paper to the jury, is never one of any practical importance, where cases proposed to be fairly and fully submitted to the jury, upon the facts arising in the case. There is no more impropriety in allowing the jury to see and read the paper, before any evidence is given, than afterwards. The paper always goes to the jury, and they must consider the evidence with reference to the paper, and it is highly proper they should see it, in the first instance. If the court finally decide that there is no evidence to go to the jury, it ends the case, whether the jury have in fact read the paper propounded for the will, or not. When that point is decided affirmatively, if the defence is unsoundness of mind in the testator, the defendant assumes the burden of proof.

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would have been properly laid before the jury, without any proof of its execution, not as evidence, but to enable the jury to see what they were to try. Admitting it in evidence is deciding that there was sufficient prima facie evidence of its execution, to warrant its submission to the jury, to find whether the fact was established, that the testator affixed his signature.

31. It was further held, in this case, that where of three subscribing witnesses, one of the number deposed unqualifiedly to the signature of the testator and his mental capacity at the time, and the second testified that he wrote his name unassisted, except as to the last two letters, his hand being then assisted, but denied the mental capacity of the testator at the time, the fact of execution was sufficiently proved, by two witnesses, and that it was therefore proper to submit the codicil to the jury, and that there was no duty incumbent upon the plaintiff, to call the third subscribing witness. That the due execution of the codicil being proved, the burden of disproving it, and showing that a paper, the contents of which were unknown to the testator, was imposed on him, rests with the defendant.

32. The question of the preponderance of evidence is considerably discussed in a late English case 42 by Sir C. Cresswell. The testator for a fortnight was in a state of undoubted insanity. Afterwards, for an interval of a month, he was more tranquil, and conversed and acted like a sane man. He then became very depressed as to his religious condition; to such an extent, that those about him were fully convinced that his mind was deranged. Whilst in this condition he made his will. This document was in the handwriting of the testator, was perfectly rational, and in no way connected with, nor did it refer to the subject, upon which he was, supposed to manifest insanity. The

Symes v. Green, 5 Jur. N. s. 742 (1859); s. c. 1 Swabey & Trist. 401, where it is said, that the will being in all respects rational and sensible, in itself, and exhibiting no trace of the testator's delusion, yet, as the product of an unsound mind, it is not entitled to probate.

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attesting witnesses, judging from their knowledge of the de ceased's previous condition, and from his manner and demeanor at the time the will was executed, did not think him capable of making one: It was held, that a will made under such circumstances could not be considered the will of a person of sound and disposing mind. It was here declared, that if a testamentary paper is rational upon the face of it, and is shown to have been executed and attested, as prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding; but if there are circumstances which counterbalance that presumption, the court will pronounce against it, unless the evidence is sufficient to establish affirmatively, that the testator was of sound mind when he executed it.

SECTION V.

DEAF AND DUMB PERSONS.

1. Deaf and dumb persons formerly held incapable of making wills.

2. This class of persons are regarded now the same as any others, except as to the burden of proof.

3. It would seem that the witnesses should be able to communicate with the testator.

§ 6. 1. Ir seems to have been a settled rule of the' English law, until a comparatively recent period, that deaf and dumb persons were, prima facie, incapable of making a will, or entering into contracts; and they were even held not responsible for crime. But it was always supposed, that if it were shown that such persons had understanding, or if they were not deaf from nativity, and could write or speak, having once acquired

1 1 Wms. Exrs. 16, 17; Swinb. pt. 2, sec. 10, pl. 2; Taylor, Med. Jur. 690, 691; Co. Litt. 42 b.

these faculties, they were to be regarded like other persons, capable of making a will.2

2. But since this class of persons have, through the ingenuity of philanthropic men, been educated, and like other persons, been rendered capable of communicating their thoughts and wishes, not only by signs, but by writing also, there seems no more reason for denying them the privilege of making a last will and testament, than in denying it to any other class of persons whatever. And we regard this class of persons, as standing precisely like all others in that respect, with this difference perhaps, that where it appears that the testator was a deaf mute, it will impose upon those who claim to establish the will, the burden of showing, in the first instance, that the testator made the instrument, understandingly.

3. This will be especially requisite in those cases, where the testator was incapable of writing, and was therefore compelled

Godolphin, pt. 1, ch. 11; 1 Wms. Exrs. 16; 1 Jarman, ed. 1861, 29; Dickenson v. Blissett, 1 Dick. 268; In re Harper, 6 M. & G. 731; Potts v. House, 6 Geo. 324. See also, Morrison v. Lennard, 3 C. & P. 127; State v. De Wolf, 8 Conn. 93. As late as the case of Brower v. Fisher, 4 Johns. Ch. 441, it was considered that deaf and dumb persons were to be regarded as, prima facie, non compos mentis, until capacity was proved by special inquest. And all persons, who are in fact incapable of managing their affairs, are subject to a commission of lunacy, and prima facie incompetent to contract, or to make a will: In the matter of Barker, 2 Johns. Ch. 232. But we apprehend that at the present day an educated deaf mute is presumptively competent to manage his affairs, and to make a valid will. He may perform the act of execution understandingly by means of a written communication — Moore v. Moore, 2 Bradf. Sur. Rep. 265—or by the sign language, if the witnesses were familiar with that language. In a recent case in the English Court of Probate, Owston in re, 2 Swab. & Trist. 461, where a testator, who was deaf and dumb, made his will by communicating his testamentary instructions to an acquaintance by signs and motions, who prepared a will in conformity with such instructions, which was afterwards duly executed by the testator, the court required an affidavit from the drawer of the will, stating the nature of the signs and motions by which the instructions were communicated to him, and ultimately refused the probate.