The Law of Wills ...

28, 29

20. Married woman may dispose of real estate in Connecticut with consent of

her husband.

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

30, 31

31, 32

33, 34

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

34, 35

9. Opinion of Chief Justice Tindal upon the question

10. Important distinction whether the devisee is plaintiff or defendant

35, 36

36-39

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

39-41

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 41-44

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 bur-

den 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

45,46

25. In New York, the courts have held the burden of proof, as to wills and

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 estab-

lished

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

32. Rule laid down by Sir C. Cresswell

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

DEAF, DUMB, AND BLIND PERSONS.

1. Persons deprived of the sense of sight have always been held capable of

executing a will, with proper precautions

2. The difficulty very greatly increased when there is a defect of sight and

hearing

54, 55

3. Such persons may execute wills

555

4. Care should be exercised not to lay down rules of exclusion too stringent,

5. There can be no question such person may give testimony or execute his

will.

6. Rule as declared by the surrogate of New York

n. 4. The rule of the Civil Law more circumspect.

7. Not required by our law that the proof of the testator's knowledge of the

contents of his will come from the witnesses to its execution

8. The rule laid down by Swinburne required will to be read to testator in

the presence of witnesses

9. This rule is relaxed, and is in conformity to analogous cases

11. But there should be clear proof that no imposition was practised

57, 58

12. Blindness alone no proof of mental incapacity, but imposes duty of watch-

fulness

SECTION VII.

PERSONS OF UNSOUND MIND.- DEFINITION OF DIFFERENT CLASSES.

1. Lord Coke's definitions and classification

2. Idiots from birth are incapable of definition. They are mere animals.

3. The most approved writers describe rather than define this class of persons

4. Persons become idiots from disease or decay. All idiots are wholly inca-

pable of any civil or criminal act

59, 60

60, 61

n. 3. Description by Dr. Ray and Dr. Howe

5. All questions on this subject, in courts of justice, concern those not idiots

6. Lunatics, strictly, are such as have mental unsoundness in intermittent

form

7. An interruption of the disease is partial. Lucid intervals imply a perfect

restoration of the mind, for a time

8. Lunacy in its broad sense includes all mental unsoundness except idiocy

n. 4. Dr. Lushington's definition of this latter defect. Its distinctive charac-

ter is fixedness

9. Monomaniacs are diseased upon one or more subjects. Otherwise sound

10. Delirium from inflammation or stimulus is temporary madness

11. Senile dementia is the recurrence, by mere decay, of second childhood

60, 61

62, 63

SECTION VIII.

IDIOTS AND IMBECILES.

1. Imbeciles are wholly deficient in observation, comparison, and judgment

n. 2. The capacity requisite to execute a will defined and illustrated.

2. Imbecility of mind is commonly congenital, or occurs in advanced age, but

is sometimes the result of sudden shock, or calamity

3. It may be produced by accidental causes. Its characteristics

n. 3. Some illustration of the subject

1. This is indicated by sudden and unaccountable change of character

2. By delusion, and incapacity to estimate the true relations of things

n. 2. Extended analysis and illustration of the subject

3. Intellectual perversion and false judgment often occur.

4. Unaccountable moral obliquity not an unusual concomitant

5. These different characteristics often occur in the same person

SECTION X.

PARTIAL INSANITY. -MONOMANIA.

1. The characteristic of monomania is, that it exhibits itself only to a very
limited extent

2. It differs from eccentricity, chiefly, in the unconsciousness of any pecu-
liarity.

n. 1. Insane delusion is the belief of facts which no sane person could believe
3. The test of insanity often exists in the surrender of the will to imaginary
direction

71, 72

4. Moral insanity is not commonly called into exercise in the testamentary act
5. Partial insanity, or monomania, is the most difficult form in that respect
6. The case of Greenwood presents a remarkable delusion. It existed only
in regard to his next of kin .

7. The case of Dew v. Clark is a leading one upon this question
n. 6. Lord Lyndhurst's commentary upon partial insanity

8. The opinion of Sir John Nicholl contains an instructive commentary
a. Violence, cruelty, or antipathy is not insanity. There must be mental
perversion on the subject of the will.

b. Where the will is the direct offspring of morbid delusion, it cannot be
upheld

c. Lord Hale's definition of partial insanity. It is exceedingly difficult
of clear definition

72, 73

73, 74

d. The forms and developments of madness almost infinite. Illustrations
e. The term madness very loosely applied in popular use; most persons
have seen cases

f. The difference between insane and other delusion, is, that argument
and reason avails nothing in the former, and will commonly remove
the latter

g. Dr. Battie defines it as "deluded imagination"

h. Mr. Locke seems to suppose it consists in reasoning correctly from
false premises!

i. But he includes false fancies, and partial derangement in his definition
k. Dr. Francis Willis, a great authority, and one of large experience
1. He says an unsound mind is marked by delusion, insensibility, or
perversion of feeling; and sundry other characteristics

9. The general result of all the cases is, that a will produced or colored by
insane delusion cannot be upheld