but believed that the will which she was executing was in accordance with them. The will is valid. Parker v. Felgate (8 P. D. 171, per Sir James Hannen, at pp. 173, 174), 1883. If the testatrix had merely authorised her solicitor to make a will and had then said, 'I do not know what you have put down, but I am quite ready to execute it,' the will would be invalid. Hastilow v. Stobie (1 P. & D. 64, 1865), overruling dicta of Sir Cresswell Cresswell in (a) Middlehurst v. Johnson (30 L. J., Prob. 14, 1860), and (b) Cunliffe v. Cross (3 Sw. & Tr. 36, 1863). (3) ‘A sickly child, newly pubes, and without the knowledge of his curators, made a will in the absolute favour of the nurse, under whose care he had been.' The will was reduced as inofficious. (Nisbet's Doubts, temp. Charles II. 207.) (4) 4, the testator, was aged and of doubtful capacity. His will was prepared by a solicitor, B, who was therein appointed executor and one of the residuary legatees. The will was pronounced against. Durling v. Loveland (2 Curt. 225), 1839. (As to the precautions necessary in such cases to rebut the presumption of undue influence, see the remarks of Sir H. Jenner, at p. 228.) (5) Ely Stott died 18 Nov. 1821, leaving a widow, and a daughter by his first wife. The amount of his personal estate was nearly £40,000. By his will, dated 26 May, 1818, Stott gave his daughter, to whom he had conceived a violent and irrational aversion, a life interest only in a comparatively small portion of his property. Held, by Sir John Nicholl, that this unfounded antipathy had prevented the testator from properly appreciating his daughter's claims upon him, and that the will must be pronounced against. Dew v. Clark (3 Add. 79-209. Cp. also 2 Add. 102 et seq., 1826).

PROPOSITION II.-Intellectual insanity prima facie destroys testamentary capacity: but this presumption may in any case be rebutted by evidence, of a lucid interval-or that the insanity and delusions of the testator were irrelevant to the subjectmatter of his will, or insufficient to prevent the exercise of a disposing memory, judgment and will-at the time when the disputed instrument was made.

AUTHORITIES. (1) An inquisition de lunatico inquirendo is presumptive, but not conclusive, evidence of testamentary incapacity at the time.

'Presumptive. Cf. Hall v. Warren (9 Ves. 605, per Sir W. Grant M.R., 1804). In re Watts (1 Curt. 594, 1837). Snook v. Watts (11 Beav. 105, per Lord Langdale M.R., 1848).

But not conclusive.' Rodd v. Lewis (2 Cas. temp. Lee 176, 1755). (2) The presumption arising from residence in an asylum, or from other prima facie evidence of insanity, may be rebutted by

proof of a lucid interval, or that the insanity or delusions were irrelevant or immaterial.

Illustrations.-Lucid intervals. (1) W. P., who for many years had been afflicted with habitual insanity, accompanied with intermissions, executed a will while confined in a lunatic asylum. The instructions for it were designed and written without assistance by himself, and the will made a natural and equitable distribution of his property. Probate granted. Nichols v. Binns (1 Sw. & T. 238, 1858). Compare the decision in Martin v. Johnston (1 F. & F. 122) in the same year. (2) Cartwright v. Cartwright (1 Phillim. 90, 122, 1793, 1795). A, a patient in an asylum, made a will in which she left practically her whole fortune to her nieces. The circumstances under which the will was executed were as follows:-' On Aug. 14, 1775, A was supplied with pen, ink, and paper by Dr. Battie, the superintendent of the asylum, to quiet and gratify her, though he considered her at the time quite incapable of making a will. attendants retired, but watched her. She was so agitated and furious that they were fearful she would attempt some mischief to herself. At first she wrote upon several pieces of paper and got up in a wild and furious manner and tore the same, and threw them in the fire and after walking up and down the room many times in a wild and disordered manner, muttering and speaking to herself, she wrote the paper which is the will in question.' Probate granted on the grounds that (a) the will was originated and executed by the testatrix and (b) the provisions were 'wisely and orderly framed.'

:

Her

This decision has frequently been cited in support of the contention that the law at one time made the instrument in dispute the best, if not the sole, criterion of the capacity to execute it. But it is doubtful whether Sir William Wynne intended to lay down any such rule (cf. Chambers v. Yatman, 2 Curt. 415, Sir H. Jenner at p. 447, 1840): and if he did, it has since been distinctly repudiated. (Brogden v. Brown, 2 Add. 441, 1825.)

Other authorities.-Clarke v. Lear (Mar. 1791); Coghlan v. Coghlan (date not given).

Delusions foreign to the subject-matter of the will.-(1) ▲ made a will in favour of B, his niece, who was living with him, and was the object of his favour and regard. At the time of executing this will, was under a delusion that C, to whom he had borne a violent hatred, and who was actually dead, was still alive. Chad no claim whatever on 4. Probate granted. Banks v. Goodfellow (L. R., 52 B. 549, 1870). (2) Under the same circumstances, A's hatred to C is such that the very mention of his name unfits him for business, and renders him unable to estimate the comparative claims of B, D,

and E upon his bounty. Semble. Probate would be refused. Creagh v. Blood (2 J. & La Touche, Irish, 509, per Sir Edw. Sugden L. Ch., at p. 515).

Delusion or insanity insufficient to suspend testamentary capacity as above defined.—(1) A, a testatrix, was under delusions, which were intermittent, and considered trifling by her friends, about her money matters. Her capacity to revoke a will is not destroyed. Laing v. Bruce (1 Dunlop 59, 1838). (2) M disinherited his relations, to whom he had conceived a strong dislike, which was not, however, proved to have been founded on delusions. M was alleged to have had a sunstroke when on service in Sierra Leone; and he believed that in youth he had been fed with game taken out of eagles' nests, and that soldiers suffering from yellow fever were in his bed. M's will is valid. Morison v. Maclean's Trustees (24 Dunlop 625, 1862). A fortiori testamentary capacity is not destroyed by a delusion which quickens the testator's faculties. Cp. Jenkins v. Morris (14 Ch. D. 674).

The exceptions to this proposition are chiefly apparent. In Dew v. Clark there was the clearest evidence that the will in dispute sprang directly from the diseased belief of the testator: and further, it may be seriously questioned whether Sir John Nicholl's language will bear the construction popularly put upon it that delusion is the only criterion of insanity (cf. 3 Add. pp. 90, 93, 170, 204, 205, 206, with Chambers v. Yatman, 2 Curt., at p. 448). In Waring v. Waring (6 Moo. P. C. 341 et seq., 1848), Lord Brougham did indeed declare that any the least degree of insanity would vitiate a will, made under its influence: and this doctrine was accepted by Sir J. P. Wilde in Smith v. Tebbitts (L. R., 1 P. & D. 398-437, 1867): but in both cases, the presence of insane delusions, distinctly operating on the disposing mind of the testator, reduced this metaphysical analysis to the proportions of an obiter dictum.

PROPOSITION III.-A lucid interval is not necessarily a complete restoration to mental vigour previously enjoyed: nor is it merely the cessation or suppression of the symptoms of insanity it is the recovery of testamentary memory, judgment, and will' as defined in Proposition I.

6

The history of this definition of lucid interval' is interesting. 'Not necessarily,' &c., per Eldon L. Ch. in Ex parte Holyland (11 Ves. 10, 1805), disapproving a dictum of Lord Thurlow.

'Not merely the cessation or suppression,' &c., see per Sir John Dodson in Dyce Sombre v. Prinseps (1 Deane, at p. 110, 1856).

It is the recovery,' &c., Towart v. Sellars (Scotch Appeal, 5 Dow. a p. 236, 1817).

PROPOSITION IV.-An insane delusion is not merely an unfounded, though colourable, suspicion nor even a belief which no rational person would have entertained: it is a persistent and incorrigible belief of things as real which exist only in the imagination of the patient, and which no rational person can conceive that the patient when sane would have believed.

History of this definition.

'Not a colourable suspicion. Chambers v. Fatman, 2 Curt., at p. 448. 'Nor even a belief,' &c., per Lord Brougham in Waring v. Waring (v. ante) overruling Sir John Nicholl in Dew v. Clark.

But a belief, &c. Lord Brougham, ubi supra.

Which no rational person,' &c. Mudway v. Croft (3 Curt. 671, 1843), implicitly disposing of the dictum of Lord Campbell in Ditchburn v. Fearn (6 Jur. 201, 1842).

In Mudway v. Croft the following passage from Dr. Ray's Medical Jurisprudence (at p. 131) is expressly adopted: 'It is the departure from the natural and healthy character, temper, and habits which constitute a symptom of insanity, and in judging of a man's sanity, it is consequently as essential to know what his habitual manifestations were as what his present symptoms are.' This doctrine has been applied with fair consistency. Cf. Austen v. Graham (8 Moo. P. C. 493, per T. Pemberton Leigh, 500-1, 1854), and Dyce Sombre v. Prinseps (1 Deane).

PROPOSITION V.-Neither subsequent suicide, nor supervening insanity will be reflected back upon previous eccentricity, so as to invalidate a will. Cf. Hoby v. Hoby (1 Hagg. 146, 1828, per Sir J. Nicholl): aliter in the case of previous insanity. Symes v. Green (1 S. & T. 401, 1859).

PROPOSITION VI.-Affective, or moral, insanity does not (generally?) destroy testamentary capacity.

Illustration.-4, the validity of whose will was in question, took an irrational pleasure in hearing of the suffering of others, rubbing his hands, grinning, and otherwise manifesting his gratification at evil tidings. He was uncharitable and cruel. Probate granted. Frere v. Peacocke, 1 Rob. E. R. 442, per Sir H. Jenner Fust, at p. 456, 1846. (Cp. Morison's case, per Lord Cowan, 24 Dunlop 625, 1862.) Semble. Insanity of character (' primäre verrücktheit'), if sufficient to unhinge the disposing mind, would destroy testamentary capacity. PROPOSITION VII.-Upon the executor who propounds a will rests

the burden of proving (a) testamentary capacity, (6) knowledge and approval of its contents, and (c) due execution. 'The heir-at-law rests securely upon the statutes of descent and

distribution until some legal act has been done by which their rights under those statutes are lost or impaired.' (Per Thomas J., Crowningshield v. Crowningshield, 2 Gray 526.)

Other authorities.- American. Quick v. Mason (22 Maine 438); Cilley v. Cilley (34 ib. 162). English. Sutton v. Sadler (3 C. B. N. S. 87, 1857).

PROPOSITION VIII-Prima facie an executor is justified in propounding his testator's will.

Cases.-Boughton v. Knight (per Sir James Hannen, 3 P. & D. 64). Smee v. Smee (5 P. D. 90).

The legal view of insanity in its forensic relations, civil and criminal, has been attacked, and attacked not only by alienists of the baser sort, on the ground that whereas in dealing with the criminal responsibility of the insane, we adhere to rigid and obsolete formulae, and persist in defining that which is essentially undefinable, we yet recognise several distinct criteria of capacity in mental disease. Now it is no part of my present task to argue that the rules in Macnaghten's case' are not 'definitions of insanity' at all, but rough and approximate criteria of punishable insanity, or to maintain that the absence of any such criteria has seriously impaired the efficacy of French criminal law. But I respectfully claim that our law of testamentary capacity is not open to reproach. We have grasped the fact that the disease insanity is merely one of the indicia of the state unsoundness of mind. We have made no attempt to lay down abstract rules for determining in every case the presence or absence of testamentary capacity. We narrow the issue to the question, Was this man capable of making this particular will at the time of its execution? and we are warranted in so doing by the views of Taylor and Maudsley, who are the representatives of all that is best in modern medico-legal thought.

A. WOOD-RENTON.

Added for the sake of completeness, though irrelevant to the main question under discussion.