sanity is never to be presumed, where the malady, or delusion, under which the testator labored, was, in its nature, accidental and temporary.5 4. But where the will appears to be the natural result of such a delusion, as the testator is shown once to have labored under, this delusion being of a character calculated to pervert the judgment in respect to the disposition of his property, the testator cannot be regarded as possessing testamentary capac ity, although in other respects he may have been rational and sane.5 SECTION XII. SENILE DEMENTIA. 1. The most important and difficult subject connected with testamentary capacity. 2. The mind begins to decay very soon after its full maturity. 3. Loss of memory, one of the earliest symptoms of mental decay, very unequal. 4. Correct opinions upon this subject require familiarity with the particular case. 5, and n. 3. Dr. Taylor's test. Reasons why witnesses should be watchful not to be deceived. 6. Old age should excite our watchfulness, but is not presumptive of want of capacity. 7. Extreme old age does not incapacitate where the act is rational and free. 8. Surrogate Bradford's rule in regard to wills executed by persons in extreme old age. 9. Defect of memory, unless upon essential matters affecting the act, does not incapacitate. 10. Chancellor Kent says, The will of an aged man ought to be regarded with great tenderness. n. 10. Judge Bradford's reflections, and statistics upon old age. 11. The commentary of Dr. Ray upon senile dementia. 12. His strictures upon the practice of courts in leaving too much to juries. 13. The rule of Mr. Justice Washington quoted with approbation. 14. Experts do not remove all doubts in a case, more than other witnesses. 15, and n. 16. Where imbecility of mind and injustice concur in a will, it generally fails. 16. Great watchfulness against imposition in such cases, proper. Townshend v. Townshend, 7 Gill, 10. § 13. 1. There is probably no form of mental unsoundness which has to be considered so often, in connection with testamentary cases, or which has so important a bearing upon, or the thorough comprehension of which is so much to be desired, as an aid toward the correct understanding of, such cases, as that of the imbecility of old age, or senile dementia. There is nothing which more strikingly illustrates the incomprehensible nature of the connection and true relations, between the mind and the body, the spirit and the flesh, than the wonderful inequality in which different persons suffer abatement of the full vigor of their youthful and mature mind, at the approach of advanced life. While some persons suffer no apparent diminution of mental power, even to advanced old age, and after great loss of physical energy, and in some cases the occurrence of extreme feebleness; others become decidedly imbecile, in mind, long before they cease to have full strength and ability to perform the most difficult and laborious offices of their usual occupations, except as they become embarrassed therein, by the loss of mental capacity.1 2. It is not our purpose to attempt any analysis of these surprising phenomena. In the majority of cases, probably, the mind begins to lose something of its elasticity and activity, very soon after the period of its fullest maturity. This is confessedly so in regard to our physical powers. There is more uncertainty in the estimate of the powers of the mind; since the increase of says: 1 Ray, Med. Jur. § 336, ed. 1860 This experienced writer "The great point to be determined is, not whether he was apt to forget the names of people in whom he felt no particular interest, nor the dates of events which concerned him little; but whether, in conversation about his affairs, his friends and relatives, he evinced sufficient knowledge of both, to be able to dispose of the former with a sound and untrammelled judgment. It is a fact, that many of those old men who appear so stupid, and who astonish the stranger by the singularity of their conduct, need only to have their attention fairly fixed on their property, their business, or their family, to understand them perfectly well, and to display their sagacity in the remarks they make." experience and knowledge, which time produces at all stages of advancing life, in a measure compensates for the decline of the mental faculties and powers. 3. The loss of memory is one of the earliest and surest indications of the approach of mental infirmity. This approaches, with very unequal steps, in different persons. While in some it is scarcely perceptible, even at fourscore, in others it becomes a marked and serious infirmity, long before they reach the ordinary period of human life. 4. Casual observers, those but slightly acquainted with the person, are liable to very great misapprehension in regard to the mental capacity of aged persons. To a correct estimate upon this subject, it seems to be requisite that one should possess, not only general skill and experience upon the question, but that he should either have had long and familiar acquaintance with the particular person, or at least an ample opportunity to observe the precise state of the mental powers, or that he should learn these facts accurately from others. 5. The rule for testing the mental capacity of a person to do an act requiring mental comprehension and disposing judgment, given by Dr. Taylor,2 is as reliable as any one perhaps. "If a medical man be present when the will is made,” says this learned writer," he may easily satisfy himself of the state of mind of the testator, by requiring him to repeat from memory the mode in which he has disposed of the bulk of his property. Medical men have sometimes placed themselves in a serious position by becoming witnesses to wills under these circumstances, without first assuring themselves of the actual mental condition of the testator. It would always be a good ground of justification, if, at the request of the witness, the testator had been made to re 'Med. Jur. 658, ed. 1861. See also, Hathorn v. King, 8 Mass. 371, where it was held, that being able to recall the particulars of the directions given the scrivener is evidence of testamentary capacity. Marks v. Bryant, 4 Hen. & Munf. 91. peat substantially the leading provisions of his will from memory. If a dying or sick person [or any other one] cannot do this without prompting or suggestion, there is reason to believe that he has not a sane and disposing mind." 8 We apprehend that what is here said in regard to the compromise of professional character, by becoming the witness to a will, where the testator is not in a proper condition to execute it, will be somewhat unintelligible to the American mind. The impression in England is, both in the legal and medical profession, that one is bound to give directions, on such occasions, in regard to what the testator is competent to do, and that the medical attendant is responsible that he do not countenance the act of attempting to execute a will, after the patient is incompetent to comprehend its import. That by consenting to become a witness of the act he virtually certifies that the testator is of sound, disposing mind and memory. That if such proves not to have been the fact, the character of the medical witness is seriously compromised, inasmuch as he is subjected to one or other of the alternatives resulting from the dilemma in which he is thus placed, either that he was incompetent to detect such incapacity, or else that, knowing of its existence he voluntarily connived at the creation of an instrument of great importance and solemnity, while the supposed actor was in a state of mental unsoundness which incapacitated him for its valid execution. Under such circumstances, the connivance may, with some show of reason, be regarded as implicating the medical witness in a virtual fraud upon the legal disposition of the property which would otherwise follow, since the attempt to execute a will, at such a time, is getting up the shadow of a legal instrument, the effect of which will be, if successfully carried through, to defeat legal rights which have already practically taken effect and become vested, when the simulated agent no longer possesses the capacity for voluntary action. It has always seemed to us there was great justice and propriety in the English view of the subject. We think any gentleman, whether professional or not, would feel delicacy and hesitation in regard to becoming a witness to such a transaction. But with us the public opinion, which is the sovereign arbiter of duty, presumes sometimes to override the dogmas of written law. It is thus, no doubt, that it has come to be understood here, by some at least, that the witnesses to a will are not to be regarded as having expressed any opinion in regard to the sanity of the testator. It seems to be supposed, that they are only witnesses to the act of signing. But when it is considered, that the witnesses to a will must certify to the capacity of the testator, as well as to the act of execution, the transaction begins to assume a somewhat different aspect. One who puts his name as a witness to the execu 6. Extreme old age raises some doubt of capacity, but only so far as to excite the vigilance of the court. But no just in tion of a will, while he was conscious the testator was not in the possession of his mental faculties, places himself very much in the same attitude as if he had subscribed, as witness, to a will which he knew to be a forgery, which every honorable man could only regard as becoming accessory to the crime by which the will was fabricated; so that it is not improbable, that the want of proper appreciation of the discredit resulting from the act of becoming a witness to the execution of a will, by one confessedly incompetent to the proper understanding of the instrument, may, and probably does, result chiefly, with us, from the general misapprehension of the law upon the subject, rather than from any settled disposition to disregard its dictates if correctly understood. We are certainly gratified to be able to give so charitable an explanation of what has always seemed to us a great, if not an inexplicable inconsistency or obtuseness, in the public sentiment upon this subject among the American people, in some sections of the country at least. We should surely be glad to do all in our power to correct what we regard as a discredit to the public sentiment, whether it be attributable to ignorance or to insensibility. We mean, for a professional man, who is supposed to understand the subject fully and to be in a position in life where he may act independently, to nevertheless consent to become a witness to a will executed by one wholly incapable of comprehending its import. The language of Lord Camden, in his most able and elaborate judgment in the celebrated case of Hindson v. Kersey, 4 Burns, Eccl. Law, 85, 88, is of great significance upon this point: "And that the statute had a main view to the quality of the witnesses will appear from this consideration; namely, that a will is the only instrument in it (the statute of frauds) required to be attested by subscribing witnesses, at the time of execution. It was enough for leases, and all other conveyances, to be in writing: These were all transactions of health and protected by valuable considerations and antecedent treaties. The power of a court of equity was fully sufficient to meet with every fraud that could be practised in these cases, after the contract was reduced to writing. But a will was a voluntary disposition, executed suddenly in the last sickness, oftentimes almost in the article of death. And the only question that can be asked in this case is, Was the testator in his senses when he made it? And consequently, the time of execution is the critical minute that requires guard and protection. Here you see the reason why witnesses are called in so emphatically. What fraud are they to prevent? VOL. I. Kinleside v. Harrison, 2 Phillim. 449. |