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man and man. If this conveyance could be impeached on the ground of the imbecility of the grantor only, a sufficient case has not been made out to render it invalid; for the imbecility must be such as would justify the jury under a commission of lunacy, in putting his property and person under the protection of the Chancellor (ƒ); but a degree of weakness of intellect, far below that which would justify such a proceeding, coupled with other circumstances, to shew that the weakness, such as it was, had been taken advantage of, will be sufficient to set aside any important deed. His Lordship, after noticing some suspicious circumstances, which would have been sufficient to invalidate the deeds, although the conveying party could not have been proved to be in such a state of mental imbecility as would have supported a commission of lunacy, concluded by observing, that all the facts united to form one consistent body of proof of imbecility in one party, and cunning and deceit in the others who were concerned in this transaction, and dismissed the appeal with costs (g).

By the law of Scotland, although facility of itself is not sufficient to set aside a deed, yet, if it be combined with any other circumstance, indicative of an undue advantage having been taken of the facile person, the deed is ineffectual; and where, upon the face of the transaction, it appears so grossly unequal and irrational, that it is plain it could only have been brought about by a fraudulent advantage having been taken of the facility of the grantor, it will be sufficient to avoid it (h). And it was held by the House of Lords, in a case on appeal from the Court of Session, that it was necessary to shew that a party who was proved to have been naturally weak in intellect and facile, but who was legally capable of making a deed, understood a deed executed by him; and that not having been done, it was set aside in favour of his heir (i).

92.

(f) See 2 Ves. sen. 409; ante, p.

(g) Blachford v. Christian, Knapp's Rep. of Cases before the Privy Council, 1 Vol. pp. 73-82. See Griffith v. Robins, 3 Madd. 191.

(h) M'Neal v. Moir and Others, 2 Shaw, 206.

(i) White v. Ballantyne, 1 Shaw, Rep. of Appeal Cases from Scotland, p. 472.

T

274

CHAPTER VII.

OF THE WILLS AND TESTAMENTS OF LUNATICS.

1. IDIOTS, lunatics, and persons of unsound mind, are incapable of making wills of lands or chattels by common law; and, by the statute of wills (a), it is declared, that wills or testaments made of any lands or hereditaments by any idiot, or by any person de non-sane memory, shall not be taken to be good or effectual in the law.

Every person is presumed to be of sound mind until the contrary is proved; therefore, it is incumbent on the party attempting to defeat a will on the ground of the testator's insanity, to prove the existence of such disability (b).

It was observed by Sir John Nicholl in a recent case (c), that it is a great, but not an uncommon error, to suppose, that, because a person can understand a question put to him, and can give a rational answer to such question, he is of perfect sound mind, and is capable of making a will for any purpose whatever, whereas the rule of law, and it is the rule of common sense, is far otherwise; the competency of mind must be judged of by the nature of the act to be done, and from a consideration of all the circumstances of the case. In Combe's case (d), it was agreed by the Judges, "that the sane memory for the making of a will is not at all times when the party can answer to any thing with sense, but he ought to have judgment to discern and to be of perfect memory, otherwise the will is void." And again, according

(a) 34 & 35 Hen. 8, c. 5, s. 14. (b) Swinb. on Wills, by Powell, 1 Vol. p. 119; Evans v. Knight and Moore, 1 Add. 382; 3 Hagg. Eccl.

Rep. 598.

(c) 2 Hagg. Eccl. Rep. 122.

(d) Moore's Rep. 759; S. C. Vin. Abr. tit. Devise (A). pl. 22.

to Lord Coke (e), "it is not sufficient that the testator have a memory, when he makes his will, to answer familiar and usual questions, but he ought to have a disposing memory, so that he is able to make a disposition of his lands with understanding and reason; and that is such a memory as the law calls sane and perfect."

In one case it was laid down, that, although a man have a mind of sufficient soundness and discretion to regulate his affairs in general, yet, if such a dominion or influence be obtained over him as to prevent his exercising such a discretion in the making his will, he could not be considered as having such a disposing mind as would give effect to it, although the evidence to establish such a case was not determined; and that it was not necessary to go so far as to make a man absolutely insane, so as to be an object for a commission of lunacy, in order to determine the question whether the testator was of sound and disposing memory and understanding; a man perhaps might not be insane, and yet not equal to the important act of disposing of his property by will (f).

If the party, relying upon the testator's insanity, prove its existence before the making of the will in question, the law will presume the continuance of the disorder at the time of making such will, until the contrary be shewn, unless, indeed, the attack was only of a slight nature, of short duration, or owing to some accidental cause which had been removed, or a long period had elapsed since the commencement of such temporary disorder, and the making of the will (g).

Although an idiot is incapable of making a will, yet, he that is only of a mean capacity or understanding, or one who is, as it were, between a man of ordinary capacity and an idiot, is not prohibited from making a will or testament, if he has sufficient understanding to comprehend its nature and effect. If an idiot make a will, reasonable and wise in

(9) Swinb. on Wills, by Powell, 1 Vol. p. 120; Groom and Evans v. Thomas and Thomas, 2 Hagg. Eccl.

(e) Marquis of Winchester's case, 6 Rep. 23; Hetl. 120; 2 Bulst. 211; Godolph. Orp. Leg. 26, 27. (ƒ) Mountain v. Bennett, 1 Cox, Rep. 433. 353-357.

itself, it will not be valid; for the presumption of law is against the validity of all the legal acts of an idiot (h); but if it be shewn, that a rational will proceeded from, and was dictated by, a person commonly reputed to be an idiot, it would be strong evidence to prove that he was not so.

An old man, become childish, and so forgetful as not to remember his own name, cannot make a will; neither can a drunkard, who, by excessive intoxication is deprived of the use of his understanding and reason (i). Intoxication is in truth temporary insanity: the brain is incapable of performing its proper functions; there is temporary mania; but that species of derangement, when the exciting cause is removed, ceases, and sobriety brings with it a return of reason(k).

But where no fixed and settled delusion is shewn, and consequently no decided insanity, and an extravagant act of a party can be accounted for by the excitement of liquor, while at all other times his mind was sound; in order to avoid a will made by him, it must be proved that he was so excited by liquor, or so conducted himself during the particular act, as to be at that moment legally disqualified from giving effect to it (l).

A testator must have perfect ability and capacity in point of discretion and understanding, as a rational man, at the time of making his will; for, if a man be non compos mentis at the time of making it, though he afterwards become a man of sound judgment and memory, yet the will is void, because he wanted the disposing power at the time of its inception (m). If a man of sound mind makes his will, and afterwards becomes non compos mentis, he cannot revoke it during the continuance of such disability; and a subsequent loss of intellect is no revocation (n). For supporting the validity of the will, notwithstanding the subsequent incapacity of the testator, the rule of the common law is conformable to the civil, "Nam neque testamentum recte factum, neque ullum aliud negotium recte gestum, postea furor interveniens perimit (o).”

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To all persons who are in any degree conversant with proceedings in Courts of justice, it is well known that, upon the point of capacity, evidence apparently the most contradictory frequently occurs, which may easily be accounted for, without imputing to either set of witnesses intentional falsehood. In the first place, it may be observed that a large portion of evidence as to capacity, is evidence of mere opinion; and upon matters of opinion mankind differ even to a proverb. In the next place, there is no fixed standard by which each witness forms his opinion of capacity; one person seeing a testator in extreme age or under extreme sickness, thinks, that if he knows those about him, and can answer an ordinary question with respect to the state of his illness, or of his wants, such and similar matters render him capable of giving effect to a disposition by will, however complicated it may be, by the mere formal execution of the instrument; while another person may be of opinion, that though a testator, in the ordinary management of his affairs, can hold reasonable conversation, can fully comprehend all the usual and simple transactions of life, yet, if he is unable to take the active management of all his concerns, however involved those concerns may be, or if he is liable to become confused by entering into intricate transactions, he is totally incapable, and cannot enter into a testamentary disposition, however plain and simple it may be. Now, where opinions are formed by such different standards, it is obvious that much contrariety will occur (o). Sir John Nicholl observed, that experience in the Ecclesiastical Court teaches us, that evidence upon questions of capacity is almost always contradictory, such evidence being commonly that of opinion merely; and this contrariety proceeds from the obvious grounds, that, of the witnesses, no two, possibly, have seen the party whose state is deposed to, at precisely the same time, and under precisely the same circumstances; and that each, again, of the several witnesses, however numerous, measures, possibly, testamentary capacity by his own particular standard. These sources of discrepancy,

(0) Kinleside v. Harrison, 2 Phill. 456, 457.

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