or how far it may authorize the jury to infer that the same condition or state of mind attaches to the individual at a later period.

There must be kept in view the distinction between the inferences to be drawn from proof of an habitual or apparently confirmed insanity and that which may be only temporary. The existence of the former, once established, would require proof from the other party to show a restoration or recovery; and, in the absence of such evidence, insanity would be presumed to continue. But if the proof only shows a case of insanity directly connected with some violent disease, with which the individual is attacked, the party alleging the insanity must bring his proof of continued insanity to that point of time which bears directly upon the subject in controversy, and not content himself merely with proof of insanity at an earlier period.

Such we take to be the rule, as founded in reason and sanctioned by the decided cases. Thus in Cartwright v. Cartwright (1 Phillim. 100), it was held that "where habitual insanity in the mind of a person is established, there the party who would take advantage of the fact of an interval of reason must prove it," taking the distinction which we have mentioned; 1 Williams on Executors, 17, 18; Swinburne, in his Treatise on Wills, Part II., sec. 3, states the general presumption of law, that a testator, who is proved to have been void of the use of reason and understanding, continues in the same state. But, among other exceptions to this rule, he mentions. the case of a testator's falling "into some frenzy, upon some accidental cause which is afterwards taken away.' And this exception is recognized in 1 Collinson on Lunacy, 55, and Shelford on Lunatics, 275. Lord Hale says accidental madness proceeds sometimes from the violence of a disease. 1 Hale P. C. 30. New trial granted.

The deceased, Peter Hurman, otherwise Efford, died on the 5th of August, 1821, leaving a will bearing date 25th of June in that year, the validity of which is the point in issue. It makes considerable provision for the family of Mr. Pike, one of the executors, devises and bequeaths a freehold estate for life, together with the residue of the testator's personalty for life, to Lucy Hill, his niece and sole surviving next of kin, and bequeaths certain other sums to her husband if he survive her, and to charity, and makes provision for three executors. The personalty bequeathed by this will is stated to amount in value to about £5,000, and the realty devised to between £5,000 and £10,000.

Judgment.

Sir JOHN NICHOLL (after stating the facts). This instrument, such as I have described it, is propounded by the executors, and is opposed by Lucy Hill, the testator's niece, and only known relation; her alleged ground of opposition being, in a word, the asserted testator's incapacity. Her allegation, responsive to a condidit, pleads, generally, in the third article, that the deceased had long been subject to mental derangement, more particularly from about the middle of the year 1817; of which it furnishes a variety of (supposed) instances in the fifteen succeeding articles; summing up the whole by pleading, in the nineteenth article, that the deceased was not of testamentary capacity on the 25th day of June, 1821, but that he was in the custody, and under the control, of the executors (one or all) at that time, upon whose sole suggestion the will in question was, de facto, made and signed by the deceased, To this it is answered, on the part of the executors, that the deceased was never insane; for that he conducted himself rationally at all times, when not under the excitement produced by spirituous liquors, to the moderate use of which, it may be stated, once for all, as an admitted fact in the cause, that the deceased had been addicted for a number of years.

Now this being, in substance, the case on both sides, it ap

pears to me that the testimony of Mrs. Hill's own witnesses fails to make out a case of (proper) insanity, or mental derangement. They speak of the deceased's extravagant conduct, indeed, in a variety of instances; but they admit him in, at least, by far the greater part of these, to have been intoxicated at the time; when it does seem that he not only talked wildly and incoherently, but that he acted, and conducted himself, in all respects, very like a madman. Even Fagg, the witness who deposes most strongly in this particular, concludes by stating the deceased, in her apprehension, "a mad drunken fool"; obviously connecting, as appears by this phrase, in her view of the case, his supposed insanity, with his admitted habits of gross intoxication. On the contrary, however, it is pleaded, and proved, that the deceased at no time was under any control as to the management of his person or property; that he received rents; made payments; transferred stock; drew drafts; settled accounts, bought and sold property; in a word, that he was perfectly sui juris to the last, with respect to the conduct both of himself and his affairs, in all particulars.

The testator's case then appears to the Court to be that of a person not (properly) insane or deranged; but to be that of a person addicted to a species of ebriety, which, during its subsistence, frequently produces, and is proved, in the present instance, to have actually produced, upon the subject of it, effects very similar to those which insanity, or mental derangement (properly so called) would, or might, have occasioned. In other words, the deceased appears to the Court, not in the light of a madman, but in that of a person habitually addicted to the use of spirituous liquors, under the actual excitement of which he talked and acted, in most respects, very like a mad

man.

Now, viewed as with reference to the point at issue, the cases in question, notwithstanding their apparent similarity, are subject, in my judgment, to very different considerations. Where actual (proper) insanity is proved to have once shewn itself, either perfect recovery, or, at least, a lucid interval at the time of the making, must be clearly proved, to entitle any alleged testamentary instrument to be pronounced for as a valid will. Either of these, however, the last especially, is

highly difficult of proof, for the following reason: Insanity will often be, though latent, so that a person may, in effect, be completely mad or insane, however, on some subjects, and in some parts of his conduct, apparently, rational. But the effects of drunkenness or ebriety only subsist, whilst the cause, the excitement, visibly lasts: there can scarcely be such a thing as latent ebriety: so that the case of a person in a state of incapacity from mere drunkenness or ebriety, and yet capable, to all outward appearance, can hardly be supposed. Consequently, in the last, which, in my judgment, is this, description of case, all which requires to be shewn in the absence of the excitement at the time of the act done; at least, the absence of the excitement in any such degree as would vitiate the act done; for I suppose it will readily be conceded that, under a mere slight degree of that excitement, the memory and understanding may be, in substance, as correct as in the total absence of any exciting cause. Whether, where the excitement in some degree is proved to have actually subsisted at the time of the act done, it did or did not subsist in the requisite degree to vitiate the act done, must depend, in each case, upon a due consideration of all the circumstances of that case itself, in particular; it belonging to a description of cases that admits of no more definite rule, applicable to the determination of them, than the one now suggested, that I am aware of.

In this view of the question before the Court, it must be obvious, that the result will depend upon the deceased's state and condition at the time (to be collected, principally, from what passed at the time) of his giving instructions for, and signing the instrument now propounded as, and for, his last will. But previous to considering this, it may not be improper that the Court should briefly notice one or two outlying circumstances.

[Here Sir John Nicholl examines the provisions of the will in the light of the testimony, and finds the main fact reasonable and prudent. He also finds that the due execution of the will is satisfactorily shown, and that there was no undue influence; on the point of intoxication at the very time of making the will, one of the witnesses testified that testator sipped whiskey while thus engaged; that he spoke inarticulately; that Mr.

Ayrey, who was present, said at the time, "I think he is tipsy,' or "I think he is drunk"; and that he himself "thought that the deceased was then, to a certain extent, affected by drinking spirituous liquors," though he believed him to have testamentary capacity. The Judge finds no sufficient proof of incapacity from drunkenness.] It appears to me to be the will of a free and capable testator; and, as such, I pronounce for it.

MATTER OF VEDDER.

6 Dem. 92. Surrogate's Court, Albany County, New York. 1888.

Application for probate of a paper purporting to be the last will of Eliza Ann Vedder, who died January 19, 1887, at the age of seventy-seven years, by which nearly all the property of the decedent was devised and bequeathed to her husband, the proponent here. The nephews and nieces of decedent oppose the probate on the ground, among others, that the testatrix was not of sound mind, memory, and understanding. There was no issue of the marriage. The will in question was executed in August, 1883, at the house of decedent and proponent. At the same time and place, Mr. Vedder, the proponent, made and executed a will, whereby he gave all his property to his wife, the testatrix here. Among the principal facts proved by the contestants, were the following: That the testatrix was very old and in a gradually failing physical condition; that she put irons in the cream, and marked the bottom of the churn with the sign of the cross, to make the butter come; that she said she could not keep her horses fat because the witches rode them at night; that she believed in witches and witchcraft; that she told a neighbor that she had seen a headless horseman riding across her field; that she told another neighbor that her crying child was bewitched, and that if she would search its pillow she would find a hard bunch of feathers therein, which was the witch, and that she should boil this bunch at night in a pot, and that at midnight she