been sometimes sought to compare capacity to contract with that to 4 е Originally the common-law rule made one born deaf and dumb, tho not blind, incompetent. See Co. Litt. 42b. Blackstone must have thought this too harsh, and so changed it, that a person born deaf, dumb and blind was made incompetent--but how would such a person in Blackstone's time make a will? B. cites no cases. Perhaps the whole thing historical...in C's time few could rea d, therefore one deaf and dumb perhaps did "want the common inlets of understanding", ...later in B's time one D. D. AND B would lack both ability to communicate ideas, and common inlets of understanding". Now such a person can receive and communicate ideas, witness Helen Kellar. пре been sometimes sought to compare capacity to contract with that to cen еби alb test hat foo tim doe we eve per t on na ar T こ remember. Failure in fact to remember all these elements does not make the will void." See, also, Underhill on Wills, § 87, and citations. In Stancell v. Kenan, 33 Ga. 56, 68, this court announced substantially the same rule, and recommended the following, or something like it, as a charge on the subject: "A person has testamentary capacity who understands the nature of a testament or will, viz., that it is a disposi-/ tion of property, to take effect after death, and who is capable of remembering generally the property subject to his disposition and the persons related to him by the ties of blood and of affection, and also of conceiving, and expressing by words, written or spoken, or by signs, or by both, any intelligible scheme of disposition." But it is said that the words "non compos mentis" have been defined to mean a total want of mind or reason or understanding.' Potts v. House, 6 Ga. 325, 50 Am. Dec. 329. It may be observed, in passing, that one of the cases referred to in the Potts Case (Stewart's Executor v. Lispenard, 26 Wend. [N. Y.] 255) has been said to have never been. received with much favor by the legal profession generally, and has since been criticised and practically overruled in Delafield v. Parish, 25 N. Y. 9, *27. 1 Jarm. Wills (5th Am. Ed.) 93, in note A. And the case of Harrison v. Rowan, 3 Wash. C. C. 580, Fed. Cas. No. 6,141, also cited in the Potts Case, lays down a rule much like that stated above. The case of Lee's Heirs v. Lee's Ex'rs, in 4 McCord (S. C.) 183, 17 Am. Dec. 722, seems to have been cited rather to show the extreme to which the South Carolina court had gone than to approve the decision. See the remarks in regard to it in 6 Ga., at the bottom of page 351. Attention is merely called to these cases, not with any desire to enter into criticism of the opinion in Potts v. House. For the writer of that opinion, it need hardly be said, the present writer entertains the profoundest respect and esteem. In Potts v. House the expression, "a mere glimmering of reason," was used as indicating testamentary capacity. In Terry v. Buffington, 11 Ga. 337, 345, 56 Am. Dec. 423, it was said that the court were informed that the language used in the previous case had been grossly misapprehended, and they were asked to explain what was to be understood from it. The court undertook to do this, and to illustrate the meaning intended; the result being that it was held that, though the mind may be weak and dim, yet it will suffice if there be sufficient mental light, "by which the testator is enabled to comprehend the contents of his will, the nature of the estate he is conveying to his family connection, their relative situation to him, the terms upon which he stands with them, his own situation, and the circumstances which surround him." This was said by the same judge who prepared the opinion in Potts v. House; and, when thus explained, it will be seen that the test of testamentary capacity laid down is very close to, if not identical with, the rule above announced. See, also, Hall v. Hall, 18 Ga. 40. In Morris v. Stokes, 21 Ga. 552, a charge that the testator could will his property unless totally deprived of reason was held not to be error. But the charge also stated the rule practically as above expressed. Then came the case of Stancell v. Kenan, 33 Ga. 56. Then followed the Code, where sections 3266-3268 (as they are numbered in the Code of 1895) read as follows: "Sec. 3266. An insane person cannot generally make a will. A lunatic may, during a lucid interval. A monomaniac may make a will, if the will is in no way the result of or connected with that monomania. In all such cases it must appear that the testament does speak the wishes of the testator, unbiased by the mental disease with which he is affected. "Sec. 3267. Eccentricity of habit or thought does not deprive a person of power of making a testament. Old age, and the weakness of intellect resulting therefrom, does not, of itself, constitute incapacity. If that weakness amounts to imbecility, the testamentary capacity is gone. In cases of doubt as to the extent of this weakness, the reasonable or unreasonable disposition of his estate should have much weight in the decision of the question. "Sec. 3268. An incapacity to contract may coexist with a capacity to make a will. The amount of intellect necessary to constitute testamentary capacity is that which is necessary to enable the party to have a decided and rational desire as to the disposition of his property. His desire must be decided, in distinction from the wavering, vacillating fancies of a distempered intellect. It must be rational, in distinction. from the ravings of a madman, the silly pratings of an idiot, the childish whims of imbecility, or the excited vagaries of a drunkard." In Gardner v. Lamback, 47 Ga. 133, 185, a charge to the effect that terms "not of sound and disposing mind and memory" imported a total deprivation of reason was given, and this was held not to have been error. An examination of the charge which is reported shows that the judge fully gave the test laid down in the Code and in the Stancell Case in 33 Ga.; but, having in his charge employed the words "non compos mentis," he then gave a request defining them. Judge McCay said (page 193): "Our Code [the Code of 1863]-sections 2372, 2373, 2374 is in substance fairly given by the judge in his charge to the jury. Nor is the law as laid down in the Code materially different from the rulings of this court in Potts v. House, 6 Ga. 324, 50 Am. Dec. 329. To make one incapable of making a will from insanity, he must be 'non compos mentis.' There must be a 'total deprivation of reason.' However old, feeble, weak-minded, capricious, notionate he may be, if he 'be able to have a decided and rational desire as to the disposition of his property,' he is not wanting in testamentary capacity, and in making the inquiry it would seem from the very words of the Code that attention is to be given, not so much to the state of the mind as an abstract philosophical or medical question, as to its capacity for the precise thing in hand." Since the Code and this court have laid down clearly and concisely the test of testamentary capacity practically to be applied by the jury, |