new trial was refused; and, as it did not appear that the heir-at-law had wickedly and fraudulently contested the will, he was not ordered to pay the costs of the issue (j). If a devisee brings a bill merely in perpetuam rei memoriam, and the heir-at-law does nothing more than cross-examine the witnesses who are produced to confirm the will, he is entitled to his costs (k). If he examines witnesses to encounter the will, then he shall not have his costs where the bill does not pray relief, nor is brought to a hearing; if the heir-at-law has an issue directed to try the will, and the will is established, as he has a right to be satisfied how he is disinherited, he shall have his costs. If he sets up insanity or any other disability against the person who made the will, and fails, he shall not have his costs; but it must be a strong case to induce the Court to give costs against him, as spoliation or secreting the will (4). Where a bill was filed by an heir-at-law, charging fraud and circumvention in the defendant in obtaining the will, and insanity in the testatrix-Lord Hardwicke decreed costs against the plaintiff, observing, that it was such vexation in an heir-at-law, to bring a bill to set aside a will for insanity in the testator, when he might have proceeded at law by ejectment, that, if he failed, he should pay the costs of controverting the will.. But where an heir is brought before the Court as defendant, even though he should insist upon the will being fraudulent, or the testator being insane, and an issue is directed to try the fraud or insanity, yet the Court of Chancery will not give costs against him, though he fail in the attempt of overturning the will, but very often allows the heir his costs (m). If an heir-at-law, alleging insanity in a devisor, file his bill against the devisee, and he fail in the issue devisavit vel non, he shall pay the costs of the issue, but not the costs of the suit in equity, unless he might have asserted his claim by (j) White v. Wilson, 13 Ves. 87. See Pemberton v. Pemberton, Id. 290. (k) Vaughan v. Fitzgerald, 1 Sch. & Lef. 316; Blinkehorne v. Feast, 1 Dick. 153; Turner v. Turner, Id. 313. (1) Biddulph v. Biddulph, 2 P. Wms. 285; 3 P. Wms. 374; Barney v. Eyre, 3 Atk. 387. (m) Webb v. Claverden, 2 Atk. 424. ejectment; and then his suit will be deemed vexatious, and he will be ordered to pay the costs of it (n). The practice is well established, that, where a bill is filed against an heir-at-law, praying relief, as to have the trusts of a will carried into execution, if he, who has a great interest in the inheritance, and is favored by the law, cross-examines, he is entitled to his costs; being brought into equity, in order that the will may be established against him; and having a right to see whether he is disinherited or not. If he chooses to examine witnesses himself, the question of course will depend upon the circumstances. But the heir is indulged in going a step farther. On account of the frail and imperfect mode of examination into facts in the Court of Chancery, he has a right, ex debito justitiæ, to demand an issue; and if he does, setting up insanity, he shall not have costs unless he establish it; and if it appear, that, knowing the devisor was perfectly sane, he set up that pretext, he would fall within the scope of Lord Hardwicke's exception (o). In a recent case, where a bill was filed by the devisees under a will against the heiress-at-law, for establishing the will, and she insisted on the testator's insanity, and on an issue devisavit vel non, and a verdict was given in favour of the will, the heiress-at-law was allowed all her costs in equity, on the common principle that she was merely cross-examining witnesses, which she was entitled to do; but each party was left to pay their own costs of the issue (p). 5. All acts done during a lucid interval are to be considered as those of a person perfectly capable of contracting, managing, and disposing of his affairs at that period, and this rule applies to wills as well as contracts. This has more frequently occurred upon wills. A number of questions has been raised upon the execution of a will during a lucid interval, and that being proved, the will has been held valid and effectual to all intents and purposes, for the conveyance of real and personal estate, as if the testator had never been deranged (9). (n) Scaife v. Scaife, 4 Russ. 309. (0) White v. Wilson, 13 Ves. 91. (p) Smith and Another v. Dearmer and Others, 3 Younge & Jerv. U 278. See Devie v. Lord Brownlow, Where general lunacy has been established, the parties alleging a lucid interval are under the necessity of shewing that there was not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficient to enable the alleged lunatic to judge of the act he has performed (r). Lord Thurlow is reported to have said, that, "by a perfect interval, he did not mean a cooler moment, an abatement of pain or violence, or of a higher state of torture, a mind relieved from excessive pressure-but an interval in which the mind, having thrown off the disease, had recovered its general habit" (s). Every person is presumed to be sane, until it is shewn that he has become insane; the presumption then changes; it is presumed that he continues of unsound mind, and the party setting up any instrument after insanity has manifested itself, has the burthen of proof cast upon him; he must shew recovery, and he must shew, not merely that the party whose act is the subject of inquiry was restored to a state of calmness, and to the ability of holding rational conversation on some topics, but that his mind, having shaken off the disease, was again become perfect, was sound upon all subjects, and that no delusion remained (t). If a will made by a lunatic is rationally drawn up, and the nature of the disorder was such as to afford any reasonable ground to suppose that a lucid interval may have prevailed; the act itself furnishes a very strong presumption of that sound and disposing mind which is necessary to its validity (u). What fell from the late Sir William Wynne in his judgment in the case of Cartwright v. Cartwright and Others (v), before the Delegates, on an appeal from the Prerogative Court of the Archbishop of Canterbury, expounds the law upon this point with great clearness and precision. There, the testatrix wrote her will without any collateral circumstances to indicate the fact of a lucid interval, and with her own hands, loosened from their ligatures for the purpose; she (r). 9 Ves. 611. See 3 Add. 46; 11 Ves. 11. (s) 3 Br. C. C. 444. (u) See Swinb. on Wills, by Pow. 1 Vol. p. 125; 9 Ves. 610. (v) 1 Phill. 90-121; and see (1) Groom v. Thomas, 2 Hagg. White v. Driver, Id. 84. 1. R. 434. was alone while she performed the act, though observed through an aperture by persons in an adjoining room, who deposed, that, while engaged in doing it, she frequently left off writing, threw the torn pieces of paper in the fire, and walked about the room in a wild and disordered manner. But the paper itself had no mark of irritation; whatever outward appearance of disorder there might have been, it had no effect upon the writing itself, which was a perfectly steady and correct performance, entirely consistent with her attachments, impressions, and habits, when in a sane condition, and written without a single mistake or blot. The will was planned and completed by the testatrix without any assistance, and afterwards recognised by her. Upon this state of the case, Sir William Wynne decided for the validity of the will, grounding his judgment on the following principles: The rule of the law of England on this subject is the same as that of the civil law (w). "If it can be established that the party afflicted habitually by a malady of the mind has intermissions, and if there was an intermission of the disorder at the time of the act, that being proved is sufficient, and the general habitual insanity will not affect it; but the effect of it is this, it inverts the order of proof and of presumption; for, until proof of habitual insanity is made, the presumption is, that the agent, like all human creatures, was rational: but where an habitual insanity in the mind of the person who does the act is established, there the party who would take advantage of the fact of an interval of reason must prove it-that is the law; so that in all these cases the question is, whether, admitting habitual insanity, there was a lucid interval or not to do the act. The strongest and best proof that can arise as to a lucid interval is that which arises from the act itself, which is the thing to be first examined, and if it can be proved and established that it is a rational act rationally done, that is sufficient." The rule upon this subject is thus laid down by Swinburne (x), (w) Furiosi autem, si per id tempus videntur. Inst. lib. 2, tit. 12, s. 1. fecerint testamentum quo furor eo- (x) Swinb. on Wills, part 2, s. 3. rum intermissus est, jure testati esse If a lunatic person, or one that is beside himself at some times, but not continually, make his testament, and it is not known whether the same were made while he was of sound mind and memory or no, then, in case the testament be so conceived as thereby no argument of phrensy or folly can be gathered, it is to be presumed that the same was made during the time of his calm and clear intermissions, and so the testament shall be adjudged good; yea, although it cannot be proved that the testator used to have any clear and quiet intermissions at all; yet nevertheless, if the testament be wisely and orderly framed, the same ought to be accepted for a lawful testament.' "Unquestionably (continued Sir W. Wynne), there must be complete and absolute proof that the party who had so framed it did it without any assistance. If the fact be that he has done as rational an act as can be, without any assistance from another person, nothing more is necessary to be proved. There does not appear to be any authority or law to prove what the length of the lucid interval is to be, whether an hour, a day, or a month; all that is required is, that it should be of sufficient length to do the rational act intended; if it is established that the act done is perfectly proper, and that the party who is alleged to have done it was free from the disorder at the time, that is completely sufficient." But, propriety of expression will not alone suffice to establish a will, if other circumstances in proof, added to the nature of the bequests, should raise a presumption that it originated in insanity. Thus, in the case of Clarke v. Lear and Scarwell (y), the testator, a middle aged man, being a lunatic, escaped from his keeper, and at a watering place fell in love with a young lady to whom he afterwards sent in very polite terms a present of a lottery ticket, and making a will, rational on the face of it, left her a legacy of 10007, But, though it was argued that all this had the appearance of reason, the will was set aside as bottomed in insanity. There are many circumstances which, though not of themselves enough to establish actual insanity, where it had not before become decided, are still strong indicia of its (y) Cited 1 Phill. 119. |