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age or distemper (18), such as have their senses besotted with drunkenness (19)—all these are incapable, by reason of mental disability, to make any will so long as such in

will was written and executed went a great way towards showing it was in a lucid interval: the mode of the act being part of the evidence of the testator's sanity. However, when general lunacy is established, it is necessary to show that there was, not merely a cessation of the violent symptoms, but, a restoration of the faculties of the mind, sufficient to enable the party soundly to judge of the act." The words last quoted, were delivered as an exposition of Lord Thurlow's real meaning, when (in the Attorney General v. Parnther, 3 Br. 444,) he said, "by a perfect (lucid) interval, I do not mean a cooler moment, a mind relieved from excessive pressure, but an interval in which the mind, having thrown off the disease, had recovered its general habit." This dictum, if only applied in the qualified way in which Sir William Grant received it, seems open to no objection. But, Lord Eldon, taking Lord Thurlow's (reported) words more strictly, supposes him to have distinctly meant, that where lunacy is once established, a commission against the party ought not to be superseded, unless he is restored to as perfect a state of mind as he had before. Now, if Lord' s meant to insist that it was necessary, the party's mind should possess all its original tone and vigour (which any ordinary sickness may impair), Lord Eldon has irresistibly shown the injustice that would arise, if a person who once possessed the strongest mind, but who has been reduced by the delirium of fever, or any other cause, to an inferior degree of capacity, should be denied that privilege of making a will of personal estate, which is allowed to a boy at the age of fourteen. (Ex parte Holyland, 11 Ves. 11.) However, in Cartwright v. Cartwright, (1 Phillim. 119,) Sir

William Wynne said, "undonbtrih the rules laid down in theAttmn General v. Parnther were with i rat to the particular facts of that as; and, to be sure, the facts then id. duced were very feeble to prove oc the testatrix, who had been subject:. general derangement, was restoiw '•■ a disposing mind and memory: a instrument was brought to her, rail written; she was told its purport. (which she might, or might not, riders t and,) and asked if it met le consent; she answered "yes," ad did it freely. The surprise is, »x that such an instrument should have been finally set aside, but that' s" jury could have been found to return a verdict once in its favour, f" the same principles are applicable* quite as strongly to a will of real. « to a will of personal estate; and how- ever consonant to reason and justice any paper propounded as a will w; be, in the view of an ecclesUstki court, that instrument must still appear to be, in substance and effect, the very act and deed of the deeeufd and of no other person or persons* whatsoever, acting in the name a1 on the behalf of the deceased, to* well soever intentioned; otherwise tif paper cannot be entitled to prote< as that for which it is propoundednamely, a valid will. (BroyAs' Brown, 2 Addams, 441. See gate the two first paragraphs of this not*. but see also infra, the conclusion « the present paragraph.) In the a* just cited, a will was opposed, oo it* ground, that the testatrix, at »"■-' about the whole time when the wS bore date, was delirious; and was rendered incapable thereby of making? and executing a will. The evidence* indisputably proved that she was delirious at times, for the last three * four days of her life—a period covering the whole transaction relating'

the will. The court distinguished between delirium, and fixed mental derangement, or permanent, proper insanity; and held the distinction to be clear in one particular, namely, in the greater comparative facility of proving a lucid interval in a case of delirium than in a case of proper insanity. For, in the latter case, the patient so affected, is not unfrequently rational to all outward appearance, without any real abatement of his malady. But, the apparently rational intervals of persons merely delirious, for the most part, are really such. Delirium is a fluctuating state of mind, created by temporary excitement; in the absence of which, to be ascertained by the appearance of the patient, he is, most commonly, really sane. Hence, as also indeed from their greater presumed frequency in most cases of delirium, the probabilities, it priori, in favour of a lucid interval, are infinitely stronger in a case of delirium, than in one of proper insanity; and the difficulty of proving a lucid interval is less, in the same exact proportion, in the former than in the latter case. The court also distinguished between the much greater proof of capacity which must be given to support either an "inofficious" testament, or one which is obtained by a party materially benefited thereby; and the proof which is sufficient to establish a will consonant with the testator's natural affections and moral duties; especially when such will is either the testator's own sole act, or one under which his coadjutors, if he had any, take no benefit. The court further held, that where the disposal made by a will is perfectly just and proper, it speaks for itself, and carries, upon the face of it, its own recommendation. Proof of mere acquiescence and adoption of such an VOL. II.

instrument, in conjunction with proof of almost any, whatever, glimmering of capacity at the time of the execution, it was said, would be good to support the will; and would sufficiently indicate mind and volition, to justify a court of probate in pronouncing for it as a genuine and valid will.

But, partial insanity may invalidate a will, which is fairly presumable to have been the offspring of that partial insanity. (Dew v. Clark, 1 Addams, 284.) If, therefore, a parent make a will, plainly inofficious in respect to his only child, and the parent is proved to have been, at the time of making such will, under a morbid delusion as to the conduct and character of that child, the court of probate will relieve, by pronouncing the will to be invalid, and holding the parent to have died intestate in law; however sane he may have been, in some other particulars, or even generally, at the time of making the will. For, as a party may be both sane and insane, at different times, upon the same subject; so, he may be both sane and insane, at the same time, upon different subjects.

"The true criterion," said Sir John Nicholl,—" the true test of the absence or presence of insanity, I take to be, the absence or presence of delusion. Wherever the patient once conceives something extravagant to exist, which still has no existence whatever but in his own heated imagination; and wherever he is incapable of being, permanently, reasoned out of that conception, such a patient is said to be under a delusion, in a peculiar, half-technical sense of the term; and the absence or presence of delusion, so understood, forms, in my judgment, the true and only test or criterion of absent or present insanity. In short, I look upon delusion, in

3 c

this sense of it, and insanity, to be almost, if not altogether, convertible terms; so that a patient under a delusion, so understood, on any subject, in any degree, is, for that reason, essentially mad, or insane, on such subject, in that degree." (S. C. 3 Addams, 79—209. Sir John NichoU's decision was affirmed, on appeal, by the court of Delegates, early in 1829.)

In the case of Maxwell v. lard Montague, (cited in Baker v. Hart, 3 Atk. 546,) a testator was determined to be compos mentis, upon a suit in the Ecclesiastical court, respecting probate as to his personal property, and that sentence was affirmed in the court of Delegates: afterwards, on a trial at law in relation to the real estate devised by the will, the testator was found non compos, and then an application was made to the House of Lords, by petition, to reverse the sentence in the court of Delegates, in order to make the determinations uniform; but the House of Lords dismissed the petition, because (according to the report) "the sentence of the Delegates is decisive, and no appeal lies from it." Now, that no appeal lay to the House of Lords, from a sentence of the court of Delegates, seems well established, both by positive enactment and the practical construction put thereon by other decisions as well as that of Maxwell v. Montague; (see stat. 25 Hen. VIII. c. 19,s.4; cottons case,2Svi&D8t. 328, n.; Sau/v. Wilson, 2 Vern. 118;) and in opposition thereto, it is believed, nothing more can be adduced than an incidental query by Sir Bartholomew Shower, appended to his report of Warner v. North: (2 Show. P. C. 110:) but, although the statute of 25 Hen. VIII. enacts, that appeals from the Ecclesiastical courts shall be heard, like appeals from the court of

Admiralty, before such commissioom as shall be named by the Crown, who shall have full power definithelf to determine such appeal, andnofartka appeal shall be had or made from ik said commissioners:—still, this has been construed not to mean, that the sentence of the comm issioners/nt appointed shall be absolutely final, tod Nottingham held, "it would be absurd, and tend to a failure of justice, to take from the king the denier re sort, and lodge it in the Delegates. (See 4 Ves. 195.) So, Lord Chit, Chancellor of Ireland, (in Gooaw»' Giesler, Irish T.R. 384,) said, '' sentence of affirmance by the court of' Delegates, must bind the right of the parties finally and irrevocably, nita his Majesty shall be graciously pleased* to interpose, and to appoint «mwsioners of review, to do that justice which ought to have been eiecutai under the ordinary commission' s appeal. That such a power rests site the crown, no man can doubt." had a list is given in a note to 4 Ves. 1*. of twenty commissions of review* granted between the years 1666 i» 1698. It was, however, perf«tl< established, that a commission of itview, after a sentence by the court a Delegates, was not ex debitoj—M't, or what the subject might claim «-•> right; but a prerogative of the crown". to be exercised with the advice of te officer holding the great seal, accord ing to circumstances. (Frtstia1 cose, 2 P. Wms. 299; OUiH"'1 cos*, 2 Swanst. 328, n.; Hill v. ***• Moseley, 34; Matthews v. JTsrwr 4 Ves. 205; e* parte Fearo*, 5 V& 645; Eagleton and Coventry v. t<f ston, 8 Ves. 465.) Since the its publication of this note, the powers the court of Delegates have been tntfferred to his Majesty in Council, by the statute of 2 and 3 Gul. IV. c ft which also enacted, that no com"*

ability lasts (20). To this class also may be referred such persons as are born deaf, blind, and dumb; who, as they have always wanted the common inlets of understanding, are incapable of having animum testandi, and their testaments are therefore void (21).

2. Such persons as are intestable for want of liberty or prisoners, freedom of will, are, by the civil law, of various kinds; as prisoners, captives, and the like (s) (22). But the law of England does not make such persons absolutely intestable; but only leaves it to the discretion of the court to judge, upon the consideration of their particular circumstances of duress, whether or no such persons could be supposed to have liberum animum testandi. And, with regard to feme- Feme-covpru.

(») Godolph. p. 1, c. 9.

sions should be granted to review any judgment or decree made by virtue of that act.

(17) See Swinburne, pt. 2, sect. 4. An idiot, according to juridical definition, is one who, from his nativity, by a perpetual infirmity, is rum compos mentis. (Co. Litt. 246 a.)

(18) See Swinburne, pt. 2, sect. 5. Old age alone does not justify a presumption of the party's incapacity; (Lewinr.Pead, 1 Ves. jun. 19;) but, when accompanied by great infirmity, it will be a circumstance of weight in estimating the validity of any transaction; (Griffiths v. Robins, 3 Mad. 192 ;) for, that hypothetical disability which is always supposed to exist during infancy, may really subsist when the party is of age, and even a much greater degree of incapacity, though the case be not one of insanity, or of lunacy, strictly speaking. (Sherwood v. Saunderson, 19 Ves. 283; Ridgway v. Darwin, 8 Ves. 67; Ex parte Cranmer, 12 Ves. 449.)

(19) See Swinburne, pt. 2, sect. 6. A commission of lunacy has issued against a party who, when he could be kept sober, was a very sensible man; but whose constant habits were those of intoxication. (Anonym, cited in

8 Ves. 66.) And in the case of Rex
v. Wright, (2 Burr. 1099,) a rule was
made upon the defendants, to show
cause why a criminal information
should not be exhibited against them,
for the misdemeanor of using artifices
to obtain a will from a woman addict-
ed to liquor, when she was under very
improper circumstances of mind to
make one.

(20) "But, if a person of sound
mind makes his will, this will is not
revoked nor affected by his subsequent
insanity. (4 Co. 61.)"—Ch. [For,
what the law requires is, that it testa-
tor should be of capacity at the time
he makes his will. (Swinb. pt. 2,
sect. 3.) Therefore, if a child, before
he has reached the age prescribed by
law, makes a written disposition of
his effects, that disposition will be of
no validity, though he should after-
wards attain the age at which he might
make a testament; unless he then ex-
pressly confirms his previous testa-
mentary disposition; which is, in fact,
making a new will. (Swinb. pt. 2,
sect. L)--- En.]

(21) See ante, p. 290, note; and Swinburne, pt. 2, sect. 10 and 11.

(22) See Swinburne, pt. 2, sect. 8.

coverts, our law differs still more materially from the civil. Among the Romans there was no distinction; a married woman was as capable of bequeathing as a feme-sole(r). [ * 498 ] But with us a *married woman is not only utterly incapable of devising lands, being excepted out of the statute of wills, 34 & 35 Hen. VIII. c. 5, but also she is incapable of making a testament of chattels, without the license of her husband (23). For all her personal chattels are absolutely his; and he may dispose of her chattels real, or shall have them to himself if he survives her: it would be therefore extremely inconsistent, to give her a power of defeating that provision of the law, by bequeathing those chattels to another (r). Yet by her husband's license she may make a testament(e); and the husband, upon marriage, frequently covenants with her friends to allow her that license: but such license is more properly his assent; for,unless it be given to the particular will in question, it will not be a complete testament, even though the husband beforehand hath given her permission to make a will (w). Yet it shall be sufficient to repel the husband from his general right of administering his wife's effects; and administration shall be granted to her appointee, with such testamentary paper annexed (r). So that, in reality, the woman makes no will at all, but only something like a will(y); operating in the nature of an appointment, the execution of which the husband by his bond, agreement, or covenant, is bound to allow. A distinction similar to which we meet with in the civil law. For, though a son who was in potestate parentis could not byanymeans makea formal and legal testament, even though his father permitted it (z), yet he might, with the like permission of his father, make what was called a donatio mortis causa(a). The queen consort is an exception to this general rule, for she may dispose of her chattels by will, without the consent of her lord (6): and any feme-covert may make

(0 Ff. 31, 1, 77. Geo. II. B. R.
(e) 4 Rep. 51. (y) Cro. Car. 376; 1 Mod. 211-

(«) Dr. & St. d. 1, c. 7. (z) Ff. 28, 1, 6.

(w) Bro. Abr. tit. Devut, 34 ; Stra. (a) Ff. 39, 6, 25.

891. (*) Co. Litt. 133.

(x) The King v. Bettencorth, T. 13

(23) See Vol. I. p. 444, and ante, p. 375, with the notes thereto.

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