belief as to future rewards and punishments, or the principles of justice upon which they are to be administered, or other religi heaven, and that the delusion was so absurd and visionary as to amount to insanity, and executed his will under its influence, it would be sufficient to avoid it. This charge is objected to as being vague and uncertain. It is difficult to conceive how it could have been made more specific, without interfering with the province of the jury, whose right it is, as we have seen, to determine the question of insanity. The judge might perhaps have attempted to define what constitutes delusion, but this is a most difficult thing to do, and is but very unsatisfactorily done even by the most acute and metaphysical minds that have investigated it; he certainly could not legally have said that the points of belief avowed by the testator were delusion, because that would have been deciding the very question for the trial of which the jury was empanelled, for delusion is insanity. Shelford, in his treatise on the law of lunacy, says (p. 40), the true criterion, the true test of the absence or presence of insanity, where there is no phrenzy or raving madness, seems to be the absence or presence of delusion, that delusion and insanity seem to be almost convertible terms, so that a patient under a delusion on any subject or subjects, is for that reason essentially mad or insane on such subject or subjects, to the extent of the delusion. In 3 Haggard, 598, 599, Sir John Nicholl, who is high authority, says: "That no case had ever come under his consideration, where insanity had been held to be established, without any delusion ever having prevailed, nor was he able exactly to understand what is meant by a lucid interval, if it did not take place when no symptoms of delusion can be called forth at the time." "If then, delusion be insanity, to charge that the proof established delusion, would be to charge that the insanity is proven, the question of fact to be determined; but the court was asked to charge, that it was evidence of insanity sufficient to avoid the will. The points of belief avowed by the testator are expressions of opinion, which opinion is either a delusion or not; if it be a delusion, it is direct insanity; if it be no delusion, there is no insanity, and of course it cannot be evidence of it. But who shall say that the opinion avowed by the testa'tor, as to futurity, is a delusion. Delusion is defined to be, when a patient conceives something extravagant to exist which has no existence but in his own heated imagination, and having so conceived it, is incapable of being reasoned out of the conception, (Shelford on Lunacy, 40), as the fancying things to exist which can have no existence, and are impossible, according to the nature of things, as that trees walk, (Shelford, 293), the magnifying slight circumstances beyond all reasonable bounds, as if the parent of a child, really blamable to a ous creed, can be regarded as evidence of insanity, since there is no test by which their truth can be ascertained so as to determine whether they are delusions, or not; and if not, whether they will yield to reason, or not. 22. Shaw, Ch. J., in Woodbury v. Obear,28 said: "Evidence tending to show that the testator was of feeble mind, and believed in ghosts and supernatural influences, had some tendency to show unsoundness of mind, or that weakness of mind which would be easily imposed upon by the exertion of undue influ certain extent in some particulars, takes occasion to fancy her a fiend, a monster, an incarnate devil, (Shelford, 41). We can comprehend the delusion of the man who fancied he was Jesus Christ, and kindly extended his forgiveness when asked, saying, I am the Christ; also his, who imagined he corresponded with a princess in cherry juice, and his, who dreamed dreams, and heard voices, directing him to burn York Minster Church. But we cannot comprehend a delusion upon a point of belief as to the nature of future rewards and punishments, and the principles of justice upon which they will be distributed. This is a subject beyond the ken of mortal man, and in one sense of the word, perhaps, every individual is laboring under a delusion who attempts to solve it. Yet there is no subject we are more disposed to theorise about, and about which there is a greater conflict of opinion. The fool hath said in his heart there is no God; and of course no future rewards and punishments; a dreadful error, yet no one apprehends that it amounts to insanity, and that he has not a disposing mind. The Turk looks to his heaven of sensual enjoyment, the Christian to his intellectual points of faith, differing as widely as the sources of their religion. Delusion in its legal sense cannot be predicated of either, and indeed of no creed upon the subject, because there is no test by which it can be tried. The testator's impressions are innocent and harmless at least, and for aught we can say, may be true. Charity in all its ramifications, is a theme upon which our Saviour, while on earth, dwelt again and again with marked emphasis, and enforced with the strongest promises of rewards and punishments. Upon this point there is no error." This man seemed to have conformed his belief more to the conduct of men in general, than to their teaching and professed belief; upon the apprehension, possibly, that one's conduct is more satisfactory evidence of his real belief, than any declarations or professions he may make, which are at variance with his daily actions. " 7 Gray, 467. ence." "Unsoundness of mind embraces every species of men tal incapacity, from raging mania to that debility and extreme feebleness of mind which approaches near to, and often degenerates into idiocy." There is no inconsistency in a verdict which finds both that the testator was of unsound mind, and that he executed his will under undue influence.28 23. The fact that the testator sincerely believed in many absurd notions, such as mesmerism, clairvoyance, divining and mineral rods, dreams and spiritual influences, that he searched for the supposed deposits of money by Kid, and ascribed his failure to the utterance of certain words by the operator; that he saw the devil in the shape of a bull, and that he believed in certain charms for the cure of rheumatism and fever and ague, is no sufficient reason for setting aside a will in all respects rational. The learned surrogate said: "In cases of unusual theoretic belief, it is important to inquire whether the belief has obtained the mastery of the mind, or whether it has been held in subordination to the judgment. "In the absence of fraud, or circumvention, so long as the testator is not an idiot, or a lunatic, he will not be denied the right" to dispose of his property by will. SECTION XI. DELIRIUM. 1. Definition and symptoms of delirium when produced by disease. n. 1. Delirium, like a dream, often reproduces portions of the life long past. 29 Thompson v. Quimby, 2 Bradf. Sur. Rep. 449; s. c. nom. Thompson v. Thompson, 21 Barb. 107. It is said, in the last report of the case, that where there is evident ground to infer from the will and the surrounding facts, that the testator must have exercised reason and judgment in the disposition of his estate, showing the possession and exercise of his logical powers, the will cannot be set aside because the testator entertained exaggerated and absurd opinions upon certain subjects. 2. Delirium produced by stimulus may incapacitate one during the paroxysm. n. 2. Sir Wm. Grant's definition of the extent is that it deprive one of reason. 3. No presumption of the continuance of delirium exists as in case of insanity. 4. But if the will appear to be the natural result of a delusion once shown to have existed, it is invalid. 12. 1. The delirium of disease resembles mania, or ordinary insanity, very closely, sometimes, so that patients in fever have often been supposed to be insane, and as such, been removed to hospitals for the insane. But the delirium of disease is the direct and primary result of the disease, and rises or falls with the disease, and wholly, ceases with restoration to health. It is attended with more prostration of the muscular powers, is more like a waking dream, is less affected by external preceptions, appears and disappears more suddenly as a general rule, and while it continues, is more marked and observable, in the countenance and the eyes; and it not unfrequently recalls the early impressions of childhood, or youth, in advanced life, so as to create a delusion in the mind of the patient, in regard to his locality, or the identity of persons by whom he is surrounded.1 It most commonly ends in stupor, where the disease ends fatally, but not unfrequently is suspended, and the mind recovers a quiet condition for a considerable time before death.1 2. Delirium from stimulus may be carried to such an extent, as to incapacitate one for entering into contracts, or executing a valid will. This is so when the testator is incapable of doing the act understandingly. In cases of intoxication or habitual drunkenness, the rule adopted, both in the courts of law and equity, is, that the party is not to be held incompetent to do a 1 Ray, Med. Jur. of Insanity, § 346-350; Taylor, Med. Jur. 1861, 632; Wharton & Stillé, § 235 et seq. In delirium one is found to soliloquize in the language of childhood, which he had not spoken for the period of a generation before. Dr. Rush mentions that the old Swedes, of Philadelphia, when on their death-beds, would always pray in their native tongue, though they had not spoken it for half a century. Rush on Diseases of the Mind, 282; Ray, Med. Jur. § 346 et seq. binding act requiring consent, unless he is so completely under the dominion of delirium, as not to understand the nature of the business in which he is engaged, and so be rendered incapable of giving his consent, or else so much weakened in his capacity and purpose, as to be chiefly under the control of others.2 3. The same presumption of continued incapacity does not arise, from showing a person in a state of delirium, or intoxication, sufficient to incapacitate him for executing a will, as it does where the incapacity is shown to arise from mania, or monomania. But the presumption, being one of fact, is allowed to operate according to the probabilities of the case. In drunkenness, where the paroxysms are of short duration, unless the cause is renewed, and cease altogether with the removal of the cause, no presumption arises in regard to its continuance beyond the period of the operation of the cause, by which it was produced, without repetition or renewal. So too in regard to delirium, its continuance cannot be presumed indefinitely, as in the case of ordinary insanity. It will be presumed to have ceased, after the lapse of such a period of time as commonly produces restoration from such affections. A continuing in * Wharton & Stillé, § 36 et seq.; Ray, Med. Jur. § 390. In Cooke v. Clayworth, 18 Vesey, 12, the general rule of courts of equity upon this subject is thus laid down, by an eminent equity judge, Sir William Grant, that relief from a contract will not be granted upon the ground of intoxication, unless where contrivances had been used to draw the party into it, or that extreme state of intoxication is proved, which deprives a man of his reason. And the same rule is maintained, in the recent case of Shaw v. Thackray, 23 Eng. L. & Eq. 18, s. c. 17 Jur. 1045. And the following cases maintain substantially the same view. Cory v. Cory, 1 Ves. sen. 19; Barrett v. Buxton, 2 Aik. 167; King v. Bryant, 2 Hayw. 394; Campbell v. Ketcham, 1 Bibb, 406; White v. Cox, 8 Hayw. 82; Wigglesworth v. Steers, 1 Hen. & Munf. 70; Taylor v. Patrick, 1 Bibb, 168. * Black v. Ellis, 3 Hill (S. C.), 68. ' Hix v. Whittemore, 4 Met. 545. |